FEDERAL COURT OF AUSTRALIA

Abraham v Minister for Immigration and Citizenship [2026] FCA 100

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to amend the originating application for review in terms of the amended originating application at Annexure MM-1 to the affidavit of Marta Mamarot affirmed on 24 November 2025 is granted.

2.    The amended originating application for review is dismissed.

3.    The applicant is to pay the first respondent’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Josh Abraham, seeks judicial review of a decision of the Administrative Review Tribunal dated 21 March 2025, affirming a decision of a delegate of the Minister for Immigration and Citizenship not to revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Spouse Visa under s 501CA of the Migration Act 1958 (Cth).

2    On 26 November 2025, the applicant’s solicitor, Marta Mamarot, filed an affidavit affirmed on 24 November 2025, annexing a draft amended originating application for review of a migration decision (the draft amended application). The draft amended application abandoned ground 1 (alleging that the Tribunal failed to consider relevant rehabilitative programs completed by the applicant) and raised two new grounds (grounds 4 and 5).

3    It was not in issue that the onus lies upon the applicant to establish jurisdictional error and to do so on the balance of probabilities: see e.g. Jabari v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 98; (2024) 298 FCR 431 at [55(3)] (the Court (Katzmann, Jackson and McEvoy JJ)); Savaiinaea v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 56 at [73] (Collier, Perry and Anastassiou JJ).

4    The grounds of judicial review pressed by the applicant alleging that the Tribunal had fallen into jurisdictional error can be summarised as follows:

(1)    the applicant’s claims to demonstrate rehabilitation in the community were overlooked or misunderstood by the Tribunal (ground 2);

(2)    the Tribunal breached s 499 of the Migration Act by substituting its own view of the expectations of the Australian community for the deemed expectation of the Australian government under Direction No. 110 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110) (ground 3);

(3)    the Tribunal fell into jurisdictional error by failing to comply with paragraph 8.4(4) of Direction No. 110 which required the Tribunal to consider the extent to which the applicant, as the parent of two minor children, was likely to play a positive parental role in the future (ground 4); and

(4)    the Tribunal fell into jurisdictional error by engaging in reasoning that was legally unreasonable in not accepting that the applicant’s rehabilitation had been tested in the community when he was on bail between July 2014 and June 2018, reasoning (at [60] of its reasons) that he “may not have had the same opportunity to commit the types of offences that he had committed” (ground 5).

5    It was common ground that the applicant required leave from the Court to amend the originating application to include grounds 4 and 5. In support of the proposed inclusion of these new grounds, the applicant relied on Ms Mamarot’s affidavit affirmed on 24 November 2025 (to which the proposed amended originating application was annexed) and his supplementary submissions addressing these new grounds which was filed on 26 November 2025.

6    For the reasons set out below, I consider that leave should be granted for the applicant to rely on the amended original application for review, including grounds 4 and 5, but that the application for review should be dismissed.

2.    BACKGROUND

7    The applicant was born in Lebanon in February 1975 and arrived in Australia in June 1999. He was subsequently granted a Class BS Subclass 801 Spouse visa.

8    In January 2019, the applicant was convicted in the District Court of New South Wales of three offences:

(1)    dishonestly damaging by fire for financial gain, in contravention of s 197(1)(b) of the Crimes Act 1900 (NSW) (offence 1);

(2)    supplying a prohibited drug being a deemed supply of 340 grams of synthetic cannabis, in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985 (Cth) (offence 2); and

(3)    receiving or disposing of stolen property worth less than $15,000, in contravention of s 189 of the Crimes Act (offence 3).

9    He was sentenced to an aggregate term of imprisonment of nine years with a non-parole period of six years.

10    On 2 May 2023, the applicant’s visa was mandatorily cancelled under s 501(3A) on the basis that he failed to pass the character test by operation of ss 501(6)(a) and 501(7)(c) of the Migration Act (cancellation decision). This was because he had been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Act) and was serving his sentence on a full-time basis in a correctional centre in New South Wales.

11    On 30 May 2023, the applicant (through his former legal representatives) made representations to the Minister, requesting the revocation of the cancellation decision. Among other claims, the applicant sought revocation of the cancellation decision on the grounds that:

(1)    revocation is in the best interest of minor children in Australia;

(2)    revocation will not prejudice the imperative of protecting the Australian community; and

(3)    he will face “very significant impediments” in Lebanon should the cancellation decision not be revoked and he is returned to Lebanon.

12    On 21 March 2025, a delegate of the Minister made a decision not to revoke the cancellation decision (non-revocation decision).

13    On 25 March 2025, the applicant lodged an application with the Tribunal, seeking merits review of the non-revocation decision. On 2 and 3 June 2025, the applicant appeared before the Tribunal. On 5 June 2025, the Tribunal affirmed the non-revocation decision. In this regard, the Tribunal found that the applicant has a “substantial criminal record” (as defined in sub-s 501(7)(c) of the Act) and, further, determined that “the protection of the community and the expectations of the community weigh heavily against the revocation”.

3.    LEAVE TO AMEND THE ORIGINATING APPLICATION FOR REVIEW

14    Rule 8.21 of the Federal Court Rules 2011 (Cth) confers a discretion on the Court to grant leave to amend an originating application: Tamaya Resources Ltd (In Liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; (2016) 332 ALR 199 at [122] (Gilmour, Perram and Beach JJ) (Tamaya Resources (FCAFC)). The rule relevantly provides:

(1)    An applicant may apply to the Court for leave to amend an originating application for any reason, including:

…

(g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

(i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

(ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

15    The relevant principles governing an application for leave to amend were summarised by Burley J in University of Sydney v ObjectiVision Pty Limited [2016] FCA 1199, an authority on which the Minister relies upon, at [61]-[67]:

61.    The applicable principles are well established. The Court’s powers in rules 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in subsection 37M(1) of the Federal Court Act: Australian Competition & Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Limited v 2KD Drilling Pty Ltd [2012] FCA 275 at [8].

62.    The onus is on the party seeking leave to amend to persuade the Court that such leave should be given: Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118; (2010) 63 AILR 101 at [17].

63.    The principles articulated by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (Aon) apply to matters in this Court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 (Cement Australia) at [43]. A Full Court of this Court in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (A Firm) [2016] FCAFC 2; 332 ALR 199 at [125] (Tamaya) recently approved the following statement of the primary judge (Gleeson J at [127]) of relevant matters that the Court is to consider:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (Luck) at [44];

(6)    The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

64.    The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51].

65.    Parties must have a sufficient opportunity to identify the issues they seek to agitate: Aon at [94], [98] and [112]. At [94] and [98], the plurality said, relevantly:

[94] … Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.

[98] …what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. [Rule 21 of the Court Procedures Rules 2006 (ACT) (which has now been repealed, but was equivalent to section 37M of the Federal Court Act)’s] reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.

66.    In Wotton v State of Queensland [2015] FCA 910 (Wotton) at [56] and [57], Mortimer J said, relevantly:

[56] … the focus of the overarching purpose is on the just resolution of disputes. In complex, novel and seriously contested litigation… a “just” resolution invariably involves resolving tension between the competing interests of and prejudices to the parties, and tension with the interests of other litigants in the Court whose proceedings depend to a greater or lesser extent on the current proceeding being heard and determined so as to “make room” for other proceedings.

[57] The familiar passage in Aon… at [111]-[112] is an important aspect of resolving those tensions:

An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend ...

A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

(emphasis in original)

67.    Significantly, the Court will consider whether the proposed amendments disclose a reasonable cause of action, or whether they have a tendency to cause prejudice, embarrassment or delay in the proceeding: Research in Motion Ltd v Samsung Electronics Australia Pty Limited (2009) 176 FCR 66 at [21] to [22]; Wotton at [59].

16    At the hearing, the parties (correctly) accepted that this was a case in which the preferable approach to adopt was for me to hear submissions on the proposed grounds and take into account the merits of those grounds (albeit at a “reasonably impressionistic basis” in accordance with AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 at [55] (Derrington J)) in determining whether to grant the applicant leave to raise the new grounds.

17    The Minister contends that leave to amend to include the new grounds should be refused for the following reasons:

(1)    On 29 July 2025, orders were made for the filing of any amended application together with any affidavit evidence and written submissions by 5 September 2025. On 9 September 2025, orders were made granting an extension until 12 September 2025. On 11 September 2025, although the applicant filed written submissions, he did not file any amended application. In this regard, the Minister submits that there was “nothing in proposed additional grounds four and five that were not available at the time the applicant’s application and submissions were being prepared”.

(2)    In response to the applicant’s submission that there were issues accessing the electronic court book (and that this contributed to the extremely late filing of the draft amended application), the Minister contends that there should have been no “problems with the electronic Court Book, noting it was filed and served on 1 August 2025”.

(3)    In response to the applicant’s submission that the reason for the extremely late filing of the draft amended application was due, at least in part, to having “to instruct new Counsel”, the Minister contends that “[t]he mere fact that new counsel has been briefed who may view the case differently does not justify amendments as a matter of course” (citing Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 at 456 (Sheppard J)).

(4)    Finally, the Minister submits that he has had only a limited period of time to consider proposed grounds four and five.

18    I agree with the Minister that no adequate explanation has been given for the applicant’s failure to raise the new grounds at an earlier stage of the proceeding, bearing in mind that the affidavit to which the proposed amended application was annexed was filed only on 26 November 2025, being one week before the trial. I also accept that there is force otherwise in the Minister’s submissions. Nonetheless, in all of the circumstances, I consider that it is in the interests of justice to grant leave to the applicant to raise the new grounds for the following reasons.

19    First, there is no apparent prejudice which the Minister would suffer if leave were granted to rely upon the new grounds, especially in circumstances where: the Minister was granted an opportunity to file written submissions in advance of the hearing; the Minister did not raise issues at the case management hearing on 1 December 2025 with the hearing going ahead on 3 December 2025; and the Minister ultimately accepted that they were able to address the new grounds in their supplementary written submissions and oral submissions.

20    Secondly, while put with a different emphasis, I consider ground 5 to be very closely related to ground 2 and that the Minister is, therefore, not unduly burdened by having to consider, and respond to, ground 5. Furthermore, while ground 4 clearly raises a new issue, for the reason provided above, I do not consider that the Minister is ultimately prejudiced to any serious extent. In this regard, the Minister very properly accepted at the case management hearing on 1 December 2025 that “there’s nothing in those proposed additional grounds that can’t be dealt with … orally”. I also acknowledge the Minister’s efforts in preparing supplementary written submissions before the hearing on 3 December 2025 addressing the substance of grounds 4 and 5, despite the late filing of the draft amended application.

21    Thirdly, having considered the applicant’s very helpful submissions on these grounds, in my view, there is sufficient merit from a reasonably impressionistic basis in the proposed grounds to warrant a grant of leave.

22    Finally, I have given weight to the seriousness of the consequences of refusing the grant of leave to amend the originating application for the applicant.

4.    GROUNDS 2 AND 5

4.1    The issues

23    By ground 2, the applicant contends that the Tribunal overlooked, or misunderstood, his claims to demonstrate rehabilitation in the community. Specifically, ground 2 alleges that:

2.1    The Applicant was granted bail for the duration of the criminal proceedings. This extended to 4 years until the proceedings concluded. During those 4 years the Applicant ran the Smart Saver shop in Emerton plaza. This was told to the Tribunal.

2.2    Yet, at [44] the Tribunal stated:

“While in the community, either on bail or prison leave, the Applicant did not run a business and would not have had an opportunity to engage in insurance fraud or damage.”

2.3     In this the Applicant’s claim to rehabilitation was overlooked or misunderstood.

2.4    At [58] the Tribunal stated:

“The decision to set fire to the business was a calculated and well thought out decision (the sentencing judge refers to significant preparation such as hiding equipment and removing stock) designed to bring substantial financial gain to the Applicant, irrespective of any potential harm it could cause to others. In these circumstances, the Tribunal is not convinced that the Applicant’s involvement in various violence – prevention or drug awareness programs would necessarily reduce the risk of further offending.” (emphasis added)

2.5    In this, the decision identifies the violence prevention programs but does not reason to a conclusion about them. The Tribunal fails to exercise its jurisdiction to consider a substantial claim by the Applicant.

24    Ground 5 significantly overlaps with ground 2 so it is appropriate to consider them together. By ground 5, the applicant alleges that:

The Tribunal committed jurisdictional error by engaging in reasoning that was legally unreasonable.

5.1    The Tribunal did not accept that the applicant’s rehabilitation had been tested in the community while he was on bail between 2014 and 2018, reasoning that he “may not have had the same opportunity to commit the types of offences that he had committed” [60].

5.2    The three offences that the applicant had committed were:

5.2.1    dishonestly damage by fire for financial gain;

5.2.2    receiving or disposing of stolen property; and

5.2.3    supply prohibited drug.

5.3    In reasoning that the applicant may not have had the same opportunity to commit these types of offences, the Tribunal engaged in reasoning that was legally unreasonable given that between 2014 and 2018, the Applicant had the same or an equivalent opportunity to commit:

5.3.1    an offence of receiving or disposing of stolen property, given that he was resident in the community and the manager of the Smart Saver Shop in Emerton Village Shopping Centre; and

5.3.2    an offence of supplying a prohibited drug, given that he was resident in the community.

25    For the reasons set out below, the applicant has not established these grounds.

4.2    Relevant principles

26    As I shortly explain, grounds 2 and 5 turn on the proper construction of the Tribunal’s reasons.

27    First, it is well-established that the reasons for an administrative decision under review “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ). Rather, “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]–[15] (Allsop J (as his Honour then was)).

28    Secondly, with respect to ground 2, it is an accepted ground of review that, if a decision-maker overlooks relevant materials or misunderstands an applicant’s claims, this may give rise to jurisdictional error.

(1)    Thus, in Plaintiff M1-2021 v Minister for Home Affairs (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ explained at [24] and [27] that:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations.

…

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(See also e.g. LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [3] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ.)

(2)    Where the Tribunal has not expressly considered relevant material, the question of whether it was overlooked turns upon what inferences may be drawn from the Tribunal’s reasons, understanding that reasons record the decision-maker’s subjective reasoning processes and therefore what the decision-maker considered to be relevant or material. As Gleeson CJ explained in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5]:

When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430 [of the Migration Act]. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material.

(See also Yusuf at [69] (McHugh, Gummow and Hayne JJ).)

(3)    It follows that, as the Full Court held in Minister for Home Affairs v Ogawa [2019] FCAFC 98; 369 ALR 553 at [103]:

[T]he making of a decision involves a mental process, while the reasons provide evidence of the mental process engaged in by the decision-maker… It is not necessary for reasons to refer to every piece of evidence advanced, as, for example, some evidence may be irrelevant, or its consideration may be subsumed into findings of greater generality… It may also be observed that the Minister’s obligation under s 501G(1) is limited to setting out findings on those questions of fact which he or she subjectively considers to be material: cf Yusuf at [68]. However, where the reasons do not expressly refer to an issue, an inference may, but will not necessarily, be drawn that the issue was not adverted to as part of the decision-maker’s mental process: Applicant WAEE at [47]. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, the Full Court said at [76]:

76.    The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that [it has] not been considered or taken into account. Whether it is appropriate to draw such an inference must be considered by reference to the facts of each particular case and the Minister’s reasons as a whole.

(Emphasis in the original; see also e.g. BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29]:)

29    Thirdly, with respect to ground 5, legal unreasonableness, the principles may be shortly stated:

(1)    Legal reasonableness or an absence of legal unreasonableness is an essential element of lawfulness in decision-making, it being implied that Parliament intended that a discretionary power, statutorily conferred, must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [26], [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [58] (the Court).

(2)    In determining whether an administrative decision is vitiated by legal unreasonableness, it is essential to bear in mind that the Court’s jurisdiction is strictly supervisory, and does not involve the Court reviewing the merits or substituting its own view as to how the discretion should be exercised: Li at [66] (Hayne, Kiefel and Bell JJ); Eden at [59] (the Court).

(3)    In a case where the allegation is of legal unreasonableness by reason of the decision-maker’s process of reasoning, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] that “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”. As their Honours continued (at [135]):

Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

(Emphasis added.)

(4)    The question of legal unreasonableness is highly fact-focused: Eden at [63]. As such, only limited assistance can be gleaned from other cases, especially where the facts, including the precise line of reasoning adopted by the decision-maker, are different. Whether a decision is unreasonable will ultimately depend upon the “nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law” (Eden at [7] (Allsop CJ)).

30    Finally, in order to establish jurisdictional error, it is necessary to show that the error is material. As the Full Court explained in BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151; (2020) 280 FCR 26 at [29]:

[I]n order to establish jurisdictional error, the factual error must be material in the sense that there is a realistic basis to consider that the decision-maker's ultimate conclusion might have been different if the alleged error had not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ); CRU18 [v Minister for Home Affairs [2020] FCAFC 129; (2020) 277 FCR 493] at [37]. Where the impugned finding is but one of a number of findings that independently may have led to the IAA's ultimate conclusion, jurisdictional error will generally not be made out: Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [35(6)] citing Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [55]; CRU18 at [35]-[37].

4.3    Relevant findings by the Tribunal

31    In its reasons, the Tribunal summarised (at [37]) the applicant’s various submissions that his risk of reoffending is low and that he does not pose an unacceptable risk to the community, including relevantly (at [37(6)]) that:

[the applicant] held C3 security classification and was able to participate in unescorted leave program, where he was able to leave jail and catch public transport and complied with requirements, so that his rehabilitation has been tested in the community.

32    However, the Tribunal also found at [37(6)] that it “places very limited weight on that factor, given the nature of the offending and the fact that the type of offending that occurred previously is unlikely to have been possible during the short periods of leave from jail”.

33    The Tribunal further explained at [38]-[39] that:

The Applicant also refers to his compliance with parole conditions over a period of some years, stating there was no other offending. He was trusted to leave jail and do outside work and was trusted not to commit any offending. The Applicant refers to his participation in rehabilitative courses as a means of bettering himself. The Applicant notes that he continues to be subject to parole conditions until June 2027 with ongoing monitoring and supports.

The Applicant submits that he has not reoffended for a lengthy period which is an indication of his desire not to reoffend. The Applicant states that the prospect of being removed from Australia and losing his family will act as a strong incentive not to reoffend. The Tribunal accepts that this is so. The Applicant refers to the various assessments which identified the risk of reoffending as low. The Applicant submits that while protection of the community weighs against him, the risk that he poses is not an unacceptable risk.

34    The Tribunal relevantly then found at [44] that:

In his revocation request, the Applicant states that he received a C3 security classification, indicating he was assessed by a committee not to be a risk to public interest and safety. The Tribunal acknowledges that classification assessment but is mindful that the Committee would have based its assessment on very different considerations than those that are relevant to the present review. The Applicant states that his classification entitled him to participate in unescorted external leave program and he was able to undertake community programs, indicating that his rehabilitation has been tested in the community. The Tribunal does not accept that this is necessarily so given the nature of the past offending and the very limited scope for the applicant to commit similar offending while on leave from prison. While in the community, either on bail or prison leave, the Applicant did not run a business and would not have had an opportunity to engage in insurance fraud or damage cause the business. He is also unlikely to have had the opportunity to deal with stolen goods. The Tribunal is not convinced that the fact that the applicant has not committed any further crimes is necessarily an indication that he has rehabilitated.

35    Similarly, at [60], the Tribunal found that:

The Applicant refers to the absence of reoffending, noting that he was in the community between July 2014 and June 2018 and during that period there was no reoffending, showing his rehabilitation having been tested in the community. As noted above, the Tribunal does not accept that that this is so because on bail, the applicant may not have had the same opportunity to commit the type of offences that he had committed. The Applicant states that the more serious offending occurred only once. The Tribunal accepts that this is so but even the single offence was a serious one.

4.4    The applicant’s submissions on judicial review

36    By ground 2 of the amended application, the applicant submits that the Tribunal overlooked relevant materials provided by him in support of the contention that he presented a minimal likelihood of reoffending and misunderstood the facts when the Tribunal found at [44] that:

(1)    he “did not run a business” while on bail or prison leave;

(2)    he did not have an opportunity to commit insurance fraud or deal with stolen goods; and

(3)    his rehabilitation, therefore, had not been tested in the community.

37    In so finding, the applicant submitted that evidence before the Tribunal made it clear that he did, at least in some respects, have equivalent opportunities to commit insurance fraud (akin to offence 1) or to deal with stolen goods (akin to offence 3). That evidence included the “Applicant’s Statement of Facts, Issues and Contentions” dated 13 May 2025, “Josh Abraham: Signed Statutory Declaration” dated 13 May 2025, and “Personal Circumstances Form: Response to matter under s 501 of the Migration Act 1958” dated 29 May 2023. This evidence may be summarised as follows:

(1)    The applicant had been working on a full-time basis since his arrival in Australia in June 1999. Relevantly, from 2010 to 2012, the applicant managed the “Friendly Grocer” (the store which he set on fire) and, while this store “started under [the applicant’s] name”, it was “then changed to [his] brother-in-law’s name”.

(2)    The applicant was granted bail for the duration of the criminal proceedings. During the four-year period from 2014 to 2018, when he was on conditional bail in the community subject to reporting requirements, he managed, and worked full time at, the “Smart Saving Shopping Store” which was a store registered under his wife’s name.

(3)    The applicant therefore submitted that both the Friendly Grocer and the Smart Saving Shopping Store were, at the relevant times, managed by the applicant and registered in a different person’s name. Thus, the applicant submitted that the circumstances or conditions were, at least in certain respects, “equivalent” or sufficiently similar such that it would have been wrong to conclude that the applicant did not have opportunities to commit offences (at least akin to offences 1 and 3) while on bail or prison leave in the community.

38    In addition, the applicant contended that he presented a minimal likelihood of reoffending, stating at [34] of his SOFIC that:

Judge Hunt’s Remarks on Character and Rehabilitation

In his 2019 Judgment, Judge Hunt described the Applicant as a person of good character at the time of the offences, highlighting that the Applicant demonstrated good prospects for rehabilitation. His Honour noted that for the five years the Applicant was subject to conditional bail, he had not been involved in any further criminal activity or investigated for any offences. This absence of subsequent criminal conduct, coupled with the Applicant’s good behaviour, supports the submission that the Applicant’s likelihood of reoffending is minimal.

(Emphasis added.)

4.5    Grounds 2 and 5 are not established

39    In my view, the applicant has not established that the Tribunal overlooked or misunderstood the material relating to his rehabilitation on which he relied.

40    First, the Tribunal addressed the question of “The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct” at [34]-[65] of its reasons. That consideration commenced with an express acknowledgement at [35] that paragraph 8.1.2(2) of Direction 110:

provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

(b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i)    information and evidence on the risk of the non-citizen re-offending; and

(ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence

(Emphasis added.)

41    As such, the Tribunal’s reasons on the question of risk to the Australian community commenced with the correct understanding that it was required to consider the matters in paragraph 8.1.2(2), including, relevantly, evidence of rehabilitation by virtue of subparagraph 8.1.2.(2)(b)(i): see s 499 of the Migration Act and CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 252 at [21] (Feutrill J). Nor was this in issue in this proceeding.

42    Secondly, it is clear from the Tribunal’s reasons at [37]-[39], [44] and [60] (quoted above) that it did not overlook the applicant’s submissions that he had demonstrated rehabilitation by not offending during the periods on which he was on parole and prison leave.

43    Thirdly, I do not consider that the Tribunal’s reasons indicate that it misunderstood the applicant’s submission in support of that contention given the following matters.

(1)    The Tribunal correctly recognised that the applicant was in the community while on bail between 2014 and 2018.

(2)    The Tribunal did not find that the applicant had no opportunity to engage in insurance fraud or dealing in stolen goods, but rather that he did not have “the same opportunity” to commit offences of that kind (emphasis added).

(3)    The Tribunal’s finding that the applicant lacked the same opportunity to commit such offences was plainly based on its finding that he did not “run a business”. In turn, the finding that he did not “run a business” does not indicate a misunderstanding of the applicant’s claims, contrary to the applicant’s submission, but rather was based on the applicant’s evidence that he was an employee over the four-year period and not a business owner. In other words, as a mere employee, any further offending would presumably have required the applicant’s wife’s knowledge or involvement as the registered owner of the business despite her not being aware of his prior stolen goods conviction, thereby potentially limiting his opportunity to engage in similar criminal activities. Furthermore, as the applicant was on bail and therefore subject to bail conditions, if the applicant was arrested again for the same type of offending, it is likely, as the Minister submits, at a minimum, that his bail would likely be revoked and that he would be charged with additional offences.

(4)    The applicant did not give evidence to the Tribunal that he ran a business over the four-year period and that this supported his submission that he had demonstrated rehabilitation. His evidence went no higher than explaining that he was the store’s manager and that his wife was the registered owner.

44    It follows that the Tribunal’s finding that it did not necessarily accept that the applicant’s rehabilitation had been tested in the community, as an aspect of its reasons for finding that even a low risk of reoffending posed an unacceptable risk, was not based upon a misunderstanding of his claims. Rather, ground 2 of the application reduces to disagreement with the Tribunal’s failure to accord greater weight to the fact that the applicant was employed as a manager when on bail and prison leave, and the Tribunal’s failure, as a consequence, to accept that he should be regarded as being in an equivalent position to a business owner in terms of the opportunities available to him to commit offences of the relevant kind. It follows that ground 2 ultimately challenges findings of fact and the weight to be accorded to particular evidence and no jurisdictional error has been established: see e.g. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ); Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35 (Brennan J);  SZQCN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 186 at [35] (Perry J).

45    The applicant also challenges as legally unreasonable the Tribunal’s finding at [60] that while on bail, he “may not have had the same opportunity to commit the type of offences that he had committed”. The applicant contends that this finding was legally unreasonable because he was the manager of the Smart Saver Shop and resident in the community for a period of around four years during which he had the same or an equivalent opportunity to commit the offences of receiving property or supply of a prohibited drug. However, in so finding, the Tribunal (at [60]) refers back to its earlier reasoning, stating “As noted above…”. In context, this was plainly a reference back to the Tribunal’s findings at [44] that the applicant did not run a business and would not have an opportunity to engage in insurance fraud or cause damage to the business and was also unlikely to have the opportunity to deal with stolen goods. So understood, the finding was not referable to the offence of supply of a prohibited drug contrary to the applicant’s submission. That being so, it was neither irrational nor illogical for the Tribunal to find that the applicant did not have the same opportunity to engage in an insurance fraud or deal in stolen goods in circumstances where he was an employee and not a business owner for the same reasons that the finding that the applicant “did not run a business” did not necessarily indicate any misunderstanding of his claims. This is not, in the words of Crennan and Bell JJ in SZMDS, a case where “only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or … the decision to which the decision maker came was simply not open on the evidence or … there is no logical connection between the evidence and the inferences or conclusions drawn” (emphasis added).

46    In the alternative, even if the Tribunal erred in finding that the applicant “did not run a business” while on bail and prison leave, I would not have found that the error was material.

47    The Tribunal’s conclusions on protection of the community are found at [64]-[65] as follows:

The Tribunal has had regard to the various reports which suggest that the risk of reoffending is low and the Tribunal accepts the professional views expressed in these reports. While, for the reasons set out above, the Tribunal remains unconvinced about some of the claims put forward by the Applicant, having regard to the several assessments, the Tribunal finds that the risk of reoffending is low. However, given the seriousness of the offending and the severity of potential harm to others (including the risk of death or physical harm) the Tribunal has formed the view that even the low risk of reoffending poses an unacceptable risk in this case.

The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.

48    While recognising that the Tribunal ultimately found the applicant’s risk of re-offending to be low, the applicant submitted that it was a material error because “it was open to the Tribunal to … describe the risk of re-offending in different terms, for example, negligible or minimal and it was also open to the Tribunal, instead of forming the view that the protection of the Australian community weighed heavily against revocation, to give that consideration less weight” (emphasis added). In this regard, the applicant referred to paragraph [121] of the Tribunal’s reasons which concluded that:

The directions provide that some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In the Tribunal’s view, this is such a case. … Even though the risk of reoffending may have been greatly reduced to a variety of factors to which the Applicant refers, and is now assessed as being low, the Tribunal finds that if the Applicant were to engage in similar conduct again, the harm that may be caused to others is so serious that any risk of reoffending is unacceptable.

49    I respectfully disagree. The alleged error in finding that the applicant did not run a business during the relevant period related to the question of his rehabilitation which in turn related to the risk of his reoffending. In other words, as the Minister submitted, the Tribunal’s finding that the applicant did not run a business while on bail and that the absence of reoffending was not necessarily an indication of rehabilitation was only one of a number of findings considered by the Tribunal in reaching its conclusion about the weight to be given to “protection of the Australian community”. At its highest, if the Tribunal had found that the applicant ran a business while on bail and prison leave, and accepted that this showed that his rehabilitation had been tested in the community, that finding would merely have provided an additional reason for the Tribunal to conclude that the applicant’s risk of reoffending was low. It would not have detracted from the force of the Tribunal’s conclusion that the seriousness of the offending and severity of potential harm to others meant that even such low risk of reoffending posed an unacceptable risk in this case.

50    It follows for these reasons that grounds 2 and 5 must fail.

5.    GROUND 3

5.1    The issues

51    By ground 3, the applicant alleges that:

The Tribunal has breached Section 499 Migration Act.

3.1    At [95] the Tribunal states in part:

“However, the Tribunal considers the examples of the crimes set out in the Direction to be suggestive, rather than determinative so that if the Applicant has committed offending that is not described in the Direction, it does not mean that the stated community expectations should not apply.

3.2    In this, the Tribunal has substituted its own view of The Expectations of the Australian Community for the deemed expectation of the Australian government. This reasoning places the decision in breach of S. 499.

52    Paragraph 8.5 of Direction 110 provides:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

a.    acts of family violence; or

b.    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

c.    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

d.    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

e.    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

f.    worker exploitation.

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

53    As the applicant contends, there is a significant difference between the expectations spelt out in paragraph 8.5(1) and 8.5(2) as the latter expectation is that the Australian community expects that the government “can and should” refuse entry to non-citizens or cancel their visas where their conduct falls within one of the categories specified in paragraph 8.5(2)(a) to (f).

5.2    Ground 3 is not established

54    As is apparent from ground 3, the applicant contends that the Tribunal breached s 499 of the Act, by misapplying paragraph 8.5(2) of Direction 110 (which was in identical terms to paragraph 8.4(2) of its predecessor, Direction 99). Specifically, the applicant contends that the Tribunal misdirected itself on the law by treating the instances of crimes in the Direction as merely “suggestive”. In so doing, the applicant contends that the Tribunal substituted its own view of the expectations of the community for the deemed expectation of the Australian community where they engage in conduct falling within the categories specified in paragraph 8.5(2).

55    It was rightly not in issue that paragraph 8.5(2) of Direction 110 and its predecessor, paragraph 8.4(2) of Direction 99, set out a particular community expectation that operates only by reference to the especially egregious types of cases listed in subparagraphs (a) to (f) inclusive: see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; (2023) 297 FCR 662 at [35] (Moshinsky, Stewart and Jackman JJ) and Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at [26] (Gageler CJ, Edelman and Jagot JJ). As such, it was not in issue that if the error alleged by the applicant were established, the applicant would have established jurisdictional error subject to any issue as to materiality.

56    However, fairly read in context, the Tribunal did not fall into the error alleged by the applicant in reasoning as it did at [95].

57    The Tribunal’s consideration of the “Expectation of the Australian Community” commences with the overall policy underlying paragraph 8.5 of Direction 110, that “[t]he Australian community expects non-citizens to obey Australian laws while in Australia” (at [89]). The Tribunal then quotes paragraph 8.5(1) of Direction 110, explaining correctly that it “sets out the government’s view in relation to community expectations” (at [89]). Furthermore and importantly, the Tribunal at [91] quotes paragraph 8.5(4) of Direction 110, explaining that it provides guidance on how the expectations of the Australian committee are to be determined, and importantly observed at [92] that:

Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs, which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the direction.

58    In so stating, the Tribunal adopted a correct understanding of paragraph 8.5 as a whole, namely, that it was not for the Tribunal to assess community expectations for itself.

59    Consistently with this, the Tribunal at [93] explained that “[p]aragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision-maker must have regard to”, citing the decision of the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [51]-[52] (emphasis added).

60    It is in this context that the Tribunal’s reasons at [95] fall to be construed. At [95], the Tribunal stated that:

In his revocation request the Applicant states that none of his crimes fall within the categories identified in Direction 99 as giving rise to the expectation that the visa would be cancelled. However, the Tribunal considers the examples of the crimes set out in the Direction to be suggestive, rather than determinative so that if the Applicant has committed offending that is not described in the Direction, it does not mean that the stated community expectations should not apply.

(Emphasis added.)

61    It is apparent that at [95], the Tribunal is dealing with a specific submission by the applicant that his offences do not fall within any of the categories in paragraph 8.5(2) and therefore do not give rise to an expectation that his visa “would” be cancelled. While not as well expressed as it could be, I agree with the Minister that in describing the examples set out at paragraph 8.5(2) as “suggestive”, the Tribunal is effectively saying that the fact that the applicant did not commit any of the offences in paragraph 8.5(2) does not mean that the community expectations in paragraph 8.5(1) do not apply. In other words, the Tribunal rightly considered that the applicant’s submission was not an answer to the question of whether the general community expectations in paragraph 8.5(1) applied. While ultimately the reasons of the Tribunal must be construed in each case, I note that the same conclusion was reached by Collier J in LRMM v Minister for Immigration and Multicultural Affairs [2025] FCA 51 which raised similar issues.

62    This understanding of the Tribunal’s reasoning is not only supported by the correct statements in the preceding paragraphs about the effect of paragraph 8.5 of Direction 110 by the Tribunal. It is also supported by the way in which the Tribunal then goes on to determine the weight to be given to the expectations of the Australian community. After considering the applicant’s submissions which conceded that the expectations of the Australian community weigh in favour of revocation but this consideration should be given “moderate weight” only, the Tribunal concluded at [97] that:

Given the nature of the offending and the potential harm it caused, the Tribunal has formed the view that this consideration weighs heavily against the revocation and that it should be given significant weight against revocation.

63    In other words, the Tribunal does not purport to apply the stronger expectation in paragraph 8.5(2) that the Australian community “would expect” relevantly that the applicant’s visa should be cancelled but engages in a consideration of the nature of the offending and potential harm it has caused in assessing the weight to be given to the expectations of the Australian community in accordance with paragraph 8.5(1). It follows that ground 3 must be dismissed.

6.    GROUND 4

64    Ground 4 of the amended application alleges that:

4.    The Tribunal committed jurisdictional error by failing to comply with Direction 110, by failing to comply with paragraph 8.4(4) of the same.

4.1.    Paragraph 8.4(4) of Direction 110 states:

“In considering the best interests of the child, the following factors must be considered where relevant:

…

b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18” (Factor B).”

4.2.    Factor B was relevant in circumstances where the Applicant is the parent of two children aged under 18 [redacted].

4.3.    In considering the best interests of [his children], the Tribunal failed to consider Factor B. The Tribunal failed to consider the extent to which the applicant was likely to play a positive parental role in the future, taking into account that the length of time until [the children] turned 18 was approximately 4 years and approximately 5 years, respectively.

65    Paragraph 8.4 is one of five primary considerations in paragraph 8 of Direction 110 which the decision-maker “must take into account … where relevant to the decision” by virtue of s 6 of the Direction. Relevantly, paragraph 8.4 provides that:

(1)    Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is, or is not, in the best interests of a child affected by the decision.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refused or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

…

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

…

b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18…

66    The applicant submitted first that “there’s an express statement that the decision-maker is to take into account the length of time until the child turns 18 [a]nd we say that in considering factor B, the Tribunal was required to take into account the length of time until the child turns 18, so the obligation to consider included that requirement”.

67    The applicant further submitted that:

(1)    The Tribunal “did not consider or evaluate the extent to which the applicant’s parental role in the future was likely to be positive”.

(2)    The Tribunal “did not take into account that it would be approximately four years until [his daughter] turned 18, and approximately five years until [his son] turned 18”, observing that there is “no reference in the Tribunal’s decision to the age of [his daughter] or [his son], or to the length of time until each of them turned 18”.

(3)    The Tribunal’s errors (as described at (1) and (2) above) are material because, in circumstances “where there were strong considerations pointing both ways … this [primary consideration of the best interests of minor children in Australia] may have tipped the balance towards a different outcome”.

68    Ground 4 relies in the first instance upon a proper understanding of the Full Court’s decisions in Jabari and Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160; (2024) 306 FCR 372. These cases concerned paragraph 8.4(4)(d) (Factor D) of the former Direction 99 although the parties rightly proceeded on the assumption that the approach in these authorities would apply equally to Factor B of Direction 110. Factor D required the Tribunal to consider “the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways”.

69    As the Full Court (Perram, Colvin and Abraham JJ) in Nguyen relevantly explains the decision in Jabari, it suffices to focus upon the decision in Nguyen. The applicant in Nguyen contended that the primary judge ought to have held that the Tribunal had failed to comply with paragraph 8.4(4)(d) of Direction 99 (i.e. Factor D) because it did not give “genuine consideration” to the best interests of the appellant’s nephews, who were minors. More specifically, the Court characterised the nature of the appellant’s argument relevantly at [37] as follows:

At times, the contentions for Mr Nguyen seemed to be founded upon an unstated assertion that the matters listed in s 8.4(4) were each required to be reckoned in reaching a conclusion as to whether to revoke the visa cancellation, in the sense that they each had to be brought to account in the synthesis of the relevant mandatory considerations to be brought to bear when undertaking the overall decision-making task.

70    The Court held that the unstated assertion underlying the appellant’s submissions was incorrect. Rather, in its view, under the Direction, “what the decision-maker must 'take into account' are the primary and other considerations specified in the direction, relevantly for present purposes 'the best interests of minor children in Australia'” (at [38]). As a result, the Court held that paragraph 8.4(4) of Direction 99 “forms part of further detail in the direction as to the way in which the determination is to be made as to whether or not non-revocation is in the best interests of a child affected by the decision” (at [39]). The Court relevantly concluded at [40]-[42] with respect to the obligation by the Tribunal to consider the best interests of any children under paragraph 8.4:

Importantly, the factors listed in s 8.4(4) are required to be considered in making the determination as to whether revocation is or is not in the best interest of each child affected by the decision. Ultimately, the primary consideration to which there must be regard is the best interests of minor children in Australia, not each of the matters listed in s 8.4(4). It is not the case that there must be regard to each of the matters in the list in respect of each child in order to comply with the direction.

Ultimately, it is the determination as to whether revocation is or is not in the best interests of a child to which the decision-maker must have regard in making the decision. That determination may be expected to include within it a view on the part of the decision-maker as to the quality or character of the significance of that primary consideration that is formed after considering the matters listed in s 8.4(4). That is to say, a proper determination, as required by the direction, as to the interests of the child will have within it an evaluative view as to the significance or otherwise of the effect upon the interests of each affected child. However, each of the factors listed in s 8.4(4), as matters to be considered in making a determination as to primary consideration (4), do not carry through as matters that must be taken into account in making the final decision. Rather, there must be consideration of them by the decision-maker when forming a view as to primary consideration (4) which, in turn, is the matter to which there must be regard in making the final decision.

It follows that although consideration of the matters listed in s 8.4(4) may be expected to guide the determination required by s 8.4(1) to be made, it is the overall view that is formed by considering the matters in the list that is to be 'taken into account' and weighed with the other considerations. It is wrong to view the decision to be made as to whether to revoke the visa cancellation as one which requires each of the factors that are listed in s 8.4(4) to be taken into account as part of the final weighing exercise to be undertaken in order to comply with the direction.

(Emphasis added.)

71    The applicant here relied upon the statement by the Full Court at [40] that the factors listed in paragraph 8.4(4) “are required to be considered in making the determination as to whether revocation is or is not in the best interest of each child affected by the decision” to contend that Factor B is a mandatory relevant consideration to be taken into account.

72    With respect, that submission takes the Court’s statement out of context. It is apparent from the passages set out above that the Court did not consider that compliance with paragraph 8.4 of the Direction required the Tribunal to have express regard to each factor identified in paragraph 8.4(4) in reaching its final decision. Rather, each of those factors were required to be considered in the course of assessing the weight to be given to the best interests of any minor children. It follows, as the Minister submitted, that Factor B “does not need to be taken into account in the final decision in the sense of an express finding made”. In this regard, the Full Court in Jabari explained at [50] with respect to claims that a decision-maker has failed to engage with representations made by a non-citizen in favour of revocation of cancellation decision that:

[T]he decision-maker is not required to treat every statement within the representations as a mandatory relevant consideration: Plaintiff M1/2021 [v Minister for Home Affairs [2022] HCA 17] at [23]. While the decision-maker must read, identify, understand and evaluate them, from that point he or she is able to 'sift them, attributing whatever weight or persuasive quality is thought appropriate', with the weight to be afforded to any particular representation a matter for the decision-maker: Plaintiff M1/2021 at [24].

73    Their Honours, citing ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9], further held at [52] and [53] that:

[P]rovided the decision-maker has averted to and understood the representations the applicant has made, the degree or quality of engagement they provide to a given representation is a matter for them, as long as they act within the bounds of rationality and reasonableness. …

[T]he weight to be afforded to any particular representation is a matter for the Minister (or other decision-maker), including forming a view that the representation should be given no weight…

74    That being so, it is clear that the Tribunal in fact considered Factor B in the requisite sense in taking the best interests of the children into account. For example, under the heading “The best interests of minor children in Australia”:

(1)    the Tribunal referred to evidence from the applicant that he attempted to remain an active component of his children’s lives, endeavouring to speak to his four children daily, providing them with financial support, and playing an important role in counselling them;

(2)    the Tribunal referred to the applicant’s description of his children’s circumstances in his declaration of 13 May 2025 and the oral evidence of one of the older children about the need for family to have a “father figure” in their lives, “particularly for the younger siblings”;

(3)    the Tribunal referred to the applicant’s partner’s evidence that the applicant was a good role model for their children (albeit that she was unaware of his drug related conviction and the stolen goods conviction); and

(4)    the Tribunal accepted that the applicant has “a close and meaningful relationship with his children … that he wants to maintain that relationship and to be present in his children’s lives, and that the children support his presence in Australia”, suggesting that it accepted the applicant’s and his partner’s evidence on this topic.

75    As the Minister submitted, these examples demonstrate that the Tribunal read, identified, understood and evaluated the relevant material regarding the extent to which the applicant was likely to play a positive parental role in the future in reaching the view that it would be “in the best interests of each of the Applicant’s minor children … if his visa was reinstated and if the Applicant is able to remain in Australia”, and that “this consideration weighs heavily in favour of the revocation”. Relevantly, there is nothing in the Tribunal’s reasons suggesting that it did not appreciate that the applicant’s children still had a number of years before turning 18. To the contrary, the Tribunal’s reasons, as summarised above, suggest that it was well aware that several years remained before two of his children attained the age of majority and that this afforded further weight to the applicant’s concerns to remain in Australia and be a father figure to them. That being so, no error is established by reason of the Tribunal having omitted express reference to the ages of the minor children in its reasons, in line with the Full Court’s decision in Nguyen. In my view, no more was required of the Tribunal. Ground 4 must therefore be dismissed.

7.    CONCLUSION

76    For the reasons set out above, the application must be dismissed with costs.

Associate:

Dated:    16 February 2026