Federal Court of Australia

Donevski v Minister for Immigration and Citizenship [2026] FCA 248

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to Item 10 in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the Administrative Review Tribunal is substituted for the Administrative Appeals Tribunal as the second respondent.

2.    The application is dismissed.

3.    The applicant must pay the first respondent's costs as agreed or assessed in accordance with paragraph 4 below.

4.    In default of the parties reaching agreement as to the costs payable on or before 4 August 2026, pursuant to s 35A(1)(h) of the Federal Court of Australia Act 1976 (Cth), r 3.01(1) of the Federal Court Rules 2011 (Cth) and Item 220 of Schedule 2 to those rules, the costs are to be assessed on a lump sum basis by a registrar of the Court.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The visa of the applicant, Mr Donevski, was cancelled because of his substantial criminal record. Mr Donevski sought revocation of that cancellation, but a delegate of the first respondent (Minister) decided not to revoke it. Mr Donevski applied to the then Administrative Appeals Tribunal for review of that decision, but on 5 August 2024 the Tribunal affirmed it.

2    Mr Donevski now seeks judicial review of the Tribunal's decision. He does so on two grounds. The first concerns an error of the Tribunal in proceeding on the basis that Mr Donevski was a citizen of North Macedonia. The second concerns the way the Tribunal approached the expectations of the Australian community, which is a consideration made mandatory and relevant under the applicable ministerial direction. Mr Donevski's case concerns the application of a principle stated in that direction, to the effect that the Australian community may afford a higher level of tolerance to the conduct of persons who have lived in Australia from a very young age.

3    For the following reasons, the application for judicial review will be dismissed.

Background

4    Mr Donevski was born in 1971 in a place called Bitola, which was then part of the Socialist Federal Republic of Yugoslavia. The Socialist Federal Republic of Yugoslavia ceased to exist in 1992. Bitola is now part of the Republic of North Macedonia.

5    Mr Donevski came to Australia with his parents at the age of one. Apart from a couple of visits back to what was then the Socialist Federal Republic of Yugoslavia, he has lived here all his life. But he has not become a citizen of Australia, and as at August 2020 he lived here under a Class BF Transitional Permanent visa. He has worked mainly as a truck driver.

6    Mr Donevski has a criminal record which starts with offences committed when he was 19 years old. This includes traffic offending, refusing to provide his name and address to police or providing a false name and address, criminal damage and stealing. By the late 1990s his record included drug offences, and in 2014 Mr Donevski was convicted of possession of methylamphetamine with intent to sell or supply, for which he was sentenced to 2 years imprisonment.

7    Mr Donevski's visa was not cancelled as a result of that offence. But he continued to offend after his release from prison, and in August 2020 he was convicted again of possession of methylamphetamine with intent to sell or supply, for which he was sentenced to a term of imprisonment of 3 years and 3 months. It was in November 2020, during that term of imprisonment, when his visa was cancelled. Mr Donevski has been held in immigration detention since the expiry of that term.

8    Mr Donevski made representations to the Minister as to why the decision to cancel his visa should be revoked, as he was entitled to do under s 501CA(4)(a) of the Migration Act 1958 (Cth). In May 2024 a delegate of the Minister decided not to revoke the cancellation of the visa. Mr Donevski then sought review of that decision in the Tribunal.

9    As the grounds of review are confined, it is unnecessary to set out more background that this.

The Tribunal's decision and relevant material on which it was based

10    For the same reason, it is unnecessary to describe most of the aspects of the Tribunal's reasons for decision, which were published on 20 August 2024. The function the Tribunal was performing was to consider, under s 501CA(4)(b)(ii) of the Migration Act, whether there was 'another reason' why the original decision to cancel Mr Donevski's visa should be revoked (that is, a reason other than Mr Donevski passing the 'character test' under s 501(6)).

11    Only the following two aspects of the Tribunal's reasons for decision are relevant.

Mr Donevski's country of return

12    First, the Tribunal proceeded on the basis that, as it put it, Mr Donevski was a '53-year-old citizen of North Macedonia'. This was uncontroversial before the Tribunal. I will mention soon the material on which that view was based.

13    It is a view that is also reflected in several parts of the Tribunal's reasons for decision, for example: the Tribunal accepted that Mr Donevski would be less able to contribute financially to the care of his youngest son if he were returned to North Macedonia; the Tribunal considered Mr Donevski's ability to maintain contact with his youngest son and other family members if he were returned to North Macedonia; the Tribunal considered whether Mr Donevski had protection claims on the basis of return to North Macedonia; and it addressed the mandatory consideration of impediments Mr Donevski would face if removed on the basis that removal would be to North Macedonia.

14    It is now common ground between the Minister and Mr Donevski that he is not a citizen of North Macedonia. The consequence of the dissolution of the former Socialist Federal Republic of Yugoslavia would appear to have been that he is stateless. But before the Tribunal, the parties presented the opposite position. That is, with a certain hesitation on Mr Donevski's part which will be described below, both he (who was unrepresented) and the legal representatives of the Minister proceeded in the Tribunal on the basis that he was a citizen of North Macedonia.

15    Mr Donevski provided a written outline of submissions to the Tribunal which, in a section headed 'Background Information' said 'I am a citizen of North Macedonia, born on June 16, 1971'. The submission also said that, having lived in Australia since he was one year old, he did not understand the language of North Macedonia 'and their way of life is foreign to me'. He submitted that it would be hard for him to form bonds in North Macedonia. The document contained numerous other submissions on the basis that North Macedonia was the country to which Mr Donevski would be returned.

16    The Minister's Statement of Facts, Issues and Contentions in the Tribunal also said that Mr Donevski was a citizen of North Macedonia. It too contained numerous submissions premised on that as the country to which he would be returned.

17    However, in his oral evidence before the Tribunal Mr Donevski said that he was not 'sure 100 per cent' about his citizenship. This occurred during his cross examination by the Minister's legal representative, as follows (AAT transcript 22 July 2024, p 18):

I just want to start with some background. So you were born in what was Yugoslavia at the time. Is that right?---Correct. Former Yugoslavia.

Former Yugoslavia. And you are now a citizen of North Macedonia. Is that correct?---I - presumption - I tried getting through to the Macedonia consulate. They couldn't give me no feedback on it, but presumably I would say I'm citizen of Macedonia. I don't - I'm not sure 100 per cent …

18    A little later (at p 19) Mr Donevski confirmed that he had a Yugoslav birth certificate. And the following exchange then occurred:

And do you have, or have you applied for a passport for Macedonia?---No, I haven't.

Does your mother have a passport, as far as you're aware, for Macedonia?---I'm pretty sure she did - she does, sorry, but when I come to Australia, obviously, I was under her passport.

19    Still later, at page 42 of the transcript in a passage on which Mr Donevski relied, he said in evidence to the Tribunal:

Yugoslavia. I have no one back there. I haven't been back there for over 30 years. I don't know the language, don't know how to speak it, don't know how to read it. The laws are all different.

20    Various other questions were asked in cross examination on the basis that Mr Donevski would be returned to North Macedonia, and he did not demur on those occasions.

21    It is also relevant to note that Mr Donevski's son also gave evidence to the effect that his grandmother (Mr Donevski's mother) was visiting family in North Macedonia at the time of the Tribunal hearing.

The Tribunal's treatment of the expectations of the community

22    The other aspect of the Tribunal's reasons that needs to be described concerns its treatment of the expectations of the Australian community. As will be discussed in more detail below, this was a matter that was mandatory for the Tribunal to take into account under Ministerial Direction No 110, 'Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA', which has statutory force by reason of s 499(2A) of the Migration Act. Mr Donevski seeks review on the basis that the Tribunal failed to apply Direction No 110 correctly in this regard.

23    The Tribunal noted that Mr Donevski had been convicted and sentenced for numerous offences between 1990 and 2020, when he was incarcerated for the second time. The Tribunal listed Mr Donevski's record of offending in an annexure to its reasons; there were 44 convictions in all.

24    The Tribunal noted that it was required to comply with Direction No 110, and it set out the principles contained in that instrument that provided the framework for its consideration (see below). It also listed the primary and other considerations that it was required to take into account where relevant including, as a primary consideration, the expectations of the Australian community.

25    The Tribunal subsequently went on to review Mr Donevski's history of offending, in the context of addressing the first primary consideration of the protection of the Australian community. The most serious offences of which Mr Donevski had been convicted involved him being, in the words of one sentencing judge, a 'user/dealer' of methamphetamine and other drugs. The Tribunal concluded that his offending was very serious and weighed against revoking the cancellation of his visa.

26    The Tribunal also considered that the nature of the harm that would occur should Mr Donevski reoffend was serious, and that doubts about his ability to remain drug-free in the community meant that there was a 'real and ongoing risk of reoffending including serious drug offending' (para 90). Overall, the Tribunal concluded that the primary consideration of the protection of the Australian community weighed heavily against revocation.

27    After addressing other primary considerations that are not relevant here, the Tribunal turned to address the expectations of the Australian community. It summarised the requirements of the relevant paragraph of Direction No 110, paragraph 8.5, which is set out below. This included a list of offences in paragraph 8.5(2)(a)-(f) that raise serious character concerns, for example family violence or human trafficking. The operative part of the Tribunal's reasoning under this consideration was as follows:

146.    This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.

147.    For the reasons noted earlier, the Tribunal does not consider that the Applicant's offences are of the kind contemplated by sub-paras 8.5(2)(a)-(f). However, the Tribunal has found that his offending history is very serious, reflected in his history of repeated offending and terms of imprisonment. The Tribunal has also found that there is an on-going risk the Applicant will reoffend. This raises serious character concerns and the Tribunal finds the Australian community would expect that the Applicant's visa would remain cancelled. Accordingly, the expectation of the Australian community weighs against revocation.

148.    However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.

149.    In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian [c]ommunity is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community. However, the principles also note the increased tolerance afforded to non-citizens who have been in the community since from a very young age. This consideration applies to the Applicant who arrived when he was an infant. The Tribunal finds he would be afforded some additional tolerance for his offending behaviour. However, the repeated nature of his offending will have diminished that tolerance.

150.    Overall, the Tribunal finds that the primary consideration in paragraph 8.5 of Direction no. 110, being the expectations of the Australian community, weighs heavily against revocation in the Applicant's circumstances.

28    After addressing the other considerations made mandatory by Direction No 110, the Tribunal went through its conclusions as to the various considerations, including (at para 187) that the 'expectations of the Australian community, weigh against revocation and the Tribunal finds this consideration should be afforded heavy weight against revocation in the Applicant's case'. It found that this and the protection of the Australian community outweighed other considerations that were in favour of revoking the original decision, and hence affirmed the decision under review.

29    There are two discrete grounds of review, which I will now address in turn.

30    It is uncontroversial that to succeed in his application, Mr Donevski must establish that the Tribunal fell into jurisdictional error. It is also not in issue here that if he does establish either of the errors alleged, they were material and so would be jurisdictional.

Ground 1 - Mr Donevski's citizenship

31    By ground 1, Mr Donevski contends that the Tribunal made a finding that he was 'a citizen of North Macedonia without an evidentiary basis' or that the finding was irrational based on the evidence available. He also contends that the Tribunal failed to consider the legal consequences of the decision, meaning that it failed to take into account a matter made mandatory by Direction No 110.

32    Counsel for Mr Donevski acknowledged that in submissions to each of the delegate and the Tribunal, he said that he was a citizen of North Macedonia. But counsel submitted that the Tribunal should have read this in light of the evidence that Mr Donevski gave in cross examination before the Tribunal, which indicated that the 'Macedonia consulate' had not given him any information about his citizenship but 'presumably' he was a citizen of 'Macedonia' although he was not 100 per cent sure.

33    There was, further, no positive evidence before the Tribunal as to Mr Donevski's citizenship, such as a citizenship certificate or a passport, and no evidence about how a person born in a certain place in the former Socialist Federal Republic of Yugoslavia might come to be a citizen of North Macedonia.

34    Further, there were documents in the file before the Tribunal related to Mr Donevski's criminal record which indicated that he was born in Bosnia and Herzegovina and that his nationality was 'Yugoslavia (Serbia and Montenegro)'. Counsel for Mr Donevski described all this as having been productive of confusion and 'perhaps reasons to ask further questions' (ts 7). The confusion was only increased by a reference in Mr Donevski's Statement of Facts, Issues and Contentions to the Tribunal to himself as a 'Kiwi' (it can be inferred that this was because Mr Donevski had used a precedent given to him by someone else in immigration detention).

35    The asserted lack of any basis in the material for a finding that Mr Donevski was a citizen of North Macedonia meant that, according to his counsel, the Tribunal fell into jurisdictional error because there was no evidence of that fact (he accepts that it is a finding of fact) or the finding was irrational.

36    Alternatively, Mr Donevski submits under this ground that the Tribunal fell into jurisdictional error because it did not proceed on a proper understanding of the legal consequences for Mr Donevski of the decision it was called upon to make. Specifically, the Tribunal failed to consider that Mr Donevski was stateless, so that if the cancellation of the visa were not revoked, it would not be possible to remove him from Australia. The Tribunal thus failed to consider that as a consequence of its decision, by a combination of s 189, s 196 and s 198 of the Migration Act and the implications of the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137, Mr Donevski would be held in immigration detention and then eventually released back in to the Australian community once it became clear that he could not be removed in the reasonably foreseeable future. In relation to this way of framing ground 1, counsel for Mr Donevski put particular emphasis on what he said was a requirement for the Tribunal to take into account, not just the legal consequences that followed from findings of fact that it had made, but also the legal consequences of other real possibilities.

Consideration

The no evidence aspect of the ground

37    It is, with respect, difficult to see how the first way of framing ground 1 can succeed.

38    In so far as it is a 'no evidence' ground, the Court must approach it on the rigorous basis that Mr Donevski cannot succeed unless it is established that there was not even a skerrick of probative evidence of the fact in question before the Tribunal: see Australian Postal Corporation v D'Rozario [2014] FCAFC 89; (2014) 222 FCR 303 at [118] (Bromberg J) and the authorities collected there. If the Court considers that the evidence relied upon achieves at least a threshold probative value, it is not concerned beyond that with the sufficiency, quality or cogency of the evidence: see Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at [48] (Mortimer J, Moshinsky J agreeing).

39    It is also important to take care in relation to the use of the word 'evidence' in this context; an administrative decision maker is not bound by the laws of evidence and the Tribunal was entitled to inform itself on any matter in such manner as it thought appropriate: L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] (Basten J); Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c). It is preferable to think of it in terms of the material that was before the Tribunal.

40    In view of those principles, the first framing of ground 1 does not demonstrate jurisdictional error. There was probative material before the Tribunal to the effect that Mr Donevski was a citizen of North Macedonia: he himself said so to the Tribunal in his written submissions. While the passage from his cross examination quoted at [17] above indicated that he was not 'sure 100 per cent' of this, that did not render the positive statement he made elsewhere other than probative.

41    Further, there were other things said in evidence before the Tribunal that were capable of supporting the view that Mr Donevski was a citizen of North Macedonia. He said that he was 'pretty sure' that his mother 'does' (that is, at the time of the Tribunal hearing, 'did') have a passport for Macedonia (which appeared to have been adopted as shorthand for North Macedonia). And, as said, in evidence later Mr Donevski did not demur from questions that were premised on his return to North Macedonia, and his son indicated that Mr Donevski's mother was visiting family in North Macedonia at the time of the Tribunal hearing.

42    Together, all this material reached the undemanding threshold level of being probative of the fact that is now under challenge. Counsel for Mr Donevski criticised the Tribunal for failing to make even a cursory inquiry to follow up on the uncertainty as to his client's citizenship, but this does not advance the position. A contention that there was 'no evidence' for a finding does not open up any question of whether the Tribunal should have inquired into or looked behind the materials that it did have. No ground that it was unreasonable of the Tribunal not to have inquired is advanced. For that reason, the confusing material described at [34] above does not take the matter any further.

43    For the same reasons, I do not accept that the finding was irrational. There was probative material on which it could rationally be based. The doubts Mr Donevski expressed do not lead to any different conclusion. Nor, for completeness, did his evidence that he did not speak Macedonian or that he knew nothing about North Macedonia. These matters are readily explained by the fact that Mr Donevski had lived in Australia since he was one year old, a fact of which the Tribunal was aware. They shed no real light on his citizenship status.

The legal consequences of the decision

44    As to the contention that the Tribunal failed to have regard to the legal consequences of its decision, this was based on the Full Court's decision in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1. There, after reviewing several authorities about the nature of jurisdictional error, Buchanan J emphasised that the Minister (as the decision maker in that case) was obliged to proceed on the basis of a correct understanding of the statute and to apply it to the merits of the matter under consideration: see NBMZ at [142]-[151]. According to his Honour this includes a requirement for the decision maker to 'correctly appreciate the statutory context in which the decision is made': at [142]. In the case before the Full Court, the Minister had demonstrated no appreciation of the fact that the appellant could not be removed from Australia which meant (on the understanding of the law at that time) that he would be subject to indefinite detention. That was jurisdictional error: see NBMZ at [168]-[169], [177]-[179].

45    In their concurring judgment, at [9]-[10], Allsop CJ and Katzmann J said:

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

The Minister was required to take into account the legal consequences of his decision. These consequences (indefinite detention) flowed from Australia's obligation of non-refoulement and the terms of the Act.

46    In Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84], Kenny, Flick and Griffiths JJ explained NBMZ as follows:

The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. It follows that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision.

47    These principles are reflected in the ministerial directions, in the case of Direction No 110 at paragraphs 9(1) and 9.1: see Deng v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 260 at [20] (Shariff J).

48    So as these authorities make clear, the requirement that the decision maker take into account the legal consequences of the decision is a manifestation of the requirement for the decision maker to understand the legal framework in which the decision is made: see also Taulahi at [88]. To put it another way, a decision under the Migration Act needs to be made while cognisant of the consequences that will flow under that Act. The decision maker must both understand the statute correctly, in so far as it is relevant, and have regard to that understanding in the circumstances of the particular case. NBMZ and Taulahi confirm that the requirement in the Migration Act (as then understood) that indefinite detention would follow from a decision not to revoke the cancellation of the visa of a person who was protected by the non-refoulement principle was a mandatory relevant consideration.

49    The difficulty for Mr Donevski in this case is that the Tribunal displayed no misunderstanding of these matters, and nor did it manifest any disregard of them. Counsel for Mr Donevski accepted that the Tribunal demonstrated a 'general understanding of the relevant statutory framework' (ts 9). But despite the qualified nature of that concession, counsel pointed to no specific respect in which the Tribunal had displayed any misunderstanding of that framework, or any disregard for it.

50    It is true that the Tribunal did not address the effect of s 189, s 196 and s 198 on a person who was stateless, but that is readily explicable by the fact that it had found that Mr Donevski was a citizen of North Macedonia and so proceeded on the basis that he was not stateless. As the Court posed it in Taulahi at [85], the question is whether the decision maker 'has in fact misconceived the power in question or failed to have regard to the statutory framework in which the decision has been made'. Here, there is no suggestion that the Tribunal has done either of those things.

51    If one focusses directly on the language of Direction No 110, the Tribunal was required to consider the legal consequences of the decision 'where relevant': para 9(1). The Tribunal was entitled to proceed on the basis that the particular legal consequence on which Mr Donevski now relies was not relevant. Whichever way it is put, the conclusion that the factual premise for this approach was founded on probative material means that the Tribunal did not fall into jurisdictional error. It was a factual error within jurisdiction, and demonstrated no misunderstanding or misconstruction of the Migration Act. Nor did it evince any disregard of the consequences that would follow under that Act, based on the facts as known to the Tribunal.

52    Counsel for Mr Donevski sought to meet this difficulty by submitting that the Tribunal was bound to take into account legal consequences that were a real possibility, not just those that would certainly follow. Counsel appeared to draw this proposition from Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56. In that case at [61(c)], after saying that given 'the inherent complexity of the matter, it would be unwise to be overly prescriptive in summarising the relevant legal principles', the Full Court (Allsop CJ, Griffiths and Wigney JJ) said that:

the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or (2), there is at least a real possibility that the person's removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act;

53    The 'test' their Honours were referring to here was the test as to 'whether Australia's non-refoulement obligations and the prospect of indefinite detention are mandatory considerations at the time when consideration is being given to the exercise of the powers in s 501(1) or (2)'. These are powers to refuse or cancel a visa for a person who does not pass the character test.

54    This aspect of the summary given in Le seems to have been drawn in turn from the decision of Kenny and Perry JJ in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29. In that case the Minister had before him extensive medical records which indicated that the appellant, a 71-year-old man, had multiple health conditions which may have precluded returning him to his country of origin were his visa to be cancelled. He might then have been detained indefinitely. Kenny and Perry JJ inferred from the Minister's silence on this matter that the Minister did not consider it to be material: see at [121]. Their Honours also rejected a submission that the Minister had found that the appellant could return to the country of origin notwithstanding his health issues: at [122]. At [133] their Honours drew a contrast between the case before them and NBMZ, because in the latter indefinite detention was 'virtually certain' while in the former the appellant's health conditions made it only a 'real possibility', because there was a real possibility that the appellant's removal would not be reasonably practicable. The dispositive part of their Honours' reasoning in [133] was as follows:

In the present case, the material before the Minister did not show that it was virtually certain that it would not be reasonably practicable to remove the appellant if his visa were cancelled. Rather, this material indicated that there was a real possibility that the appellant's removal would not be reasonably practicable on account of his ill-health and that, if this were the case, the appellant would face indefinite detention (by operation of ss 189, 196 and 198). Again, this difference did not affect the Minister's obligation to take into account the legal consequences of his proposed decision (although it might affect his decision-making in other ways). The Minister was obliged in this case as in NBMZ to take into account that the material before him disclosed that the appellant's indefinite detention was in prospect if he cancelled the appellant's visa, as a consequence of ss 189, 196 and 198 of the Migration Act.

55    The real possibility in that case did not arise as a matter of conjecture; it was indicated by the material before the Minister. I proceed, then, on the basis that Cotterill and Le stand for the proposition that it is mandatory for the decision maker to take into account legal consequences of the decision which appear, on the basis of the materials before it, to be real possibilities. I also proceed on the basis that this principle applies to decisions under s 501CA(4)(b)(ii), even though there might be cause to think that the nature of a decision under that provision is materially different to the nature of decisions under the cancellation powers that were the subject of NBMZ, Cotterill and Le: see DFTD v Minister for Home Affairs [2020] FCA 859 at [34], [38] (Snaden J).

56    I do not accept in this case that a real possibility that Mr Donevski would be detained indefinitely because he was stateless was disclosed to the Tribunal by the materials before it. Mr Donevski's submissions to the Tribunal said that he was a citizen of North Macedonia and were based on the premise that if the cancellation of his visa were not revoked, he would be returned to that country.

57    The only instance of any possible departure from that position occurred in Mr Donevski's cross examination, when he said that the North Macedonian consulate had not given him any 'feedback' on his citizenship, but that he presumed he was a citizen of that country, albeit 'not sure 100 per cent'. This fleeting expression of less than complete certainty about the point gave the Tribunal no basis to assess how likely it was that Mr Donevski was stateless, much less to conclude that there was a real possibility that he was: cp. DYY18 v Minister for Home Affairs [2019] FCA 1901 at [24] (Steward J). And of course, no submission was made to the Tribunal that it was a possibility. In the context of the rest of the materials and the course of the hearing as described above, that real possibility was not apparent on the face of the materials before the Tribunal. At most, Mr Donevski's expression of less than complete certainty may have led the Tribunal to make inquiries, but as has been said there is no contention that it was unreasonable for the Tribunal not to have made those inquiries here.

58    It follows that the Tribunal committed no jurisdictional error in failing to take possible legal consequences of its decision following from Mr Donevski's statelessness into account. I do not uphold ground 1.

Ground 2 - expectations of the Australian community

Relevant provisions of Direction No 110

59    Ground 2 relies on the certain provisions of Direction No 110.

60    Paragraph 5.1(4) of the direction notes that its purpose is to guide decision makers in performing functions or exercising powers under s 501 or s 501CA of the Migration Act. It also notes, as is the case, that under s 499(2A) of the Migration Act, decision makers must comply with such a direction. It was not in issue before me that any failure by the Tribunal to comply, if material, would be a jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O'Callaghan and Colvin JJ, Derrington J agreeing).

61    Mr Donevski relies in particular on the next paragraph, 5.2, which is headed 'Principles':

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

…

(3)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.

    …

(6)    With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

…

62    Then paragraph 6 provides that 'Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision'. Paragraph 8(5) specifies 'expectations of the Australian community' as a primary consideration. Paragraph 8.5 relevantly elucidates that as follows:

(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 …

(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.

Mr Donevski's case on ground 2

63    Mr Donevski contends that the Tribunal failed to apply the principle in paragraph 5.2(6). That is because, while the Tribunal noted that he 'would be afforded some additional tolerance' by the Australian community because he arrived in Australia as an infant, it also said that the 'repeated nature of his offending will have diminished that tolerance'. By this reasoning, Mr Donevski contends, the Tribunal failed to accord him the level of tolerance required by paragraph 5.2(6) and modified that paragraph by introducing the notion of the diminution of tolerance even though that was not a matter included in paragraph 5.2(6).

64    Counsel for Mr Donevski acknowledged that the principles in paragraph 5.2 are intended to provide a framework for approaching the task of whether to decide that there is another reason for revoking the cancellation of the visa, and are not mandatory relevant considerations: see NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [29] (Bromwich J). Nevertheless, counsel submitted, a misunderstanding of such a principle could lead the Tribunal to fail to appreciate the requirements of the direction, which could be an error of law, or amount to asking the wrong question or identifying the wrong issue: NWQR at [25].

65    Counsel for Mr Donevski pointed out that the principle found in paragraph 5.2(6) about the level of tolerance afforded by the Australian community does not say that the tolerance is diminished by repeat offending. He submits that it was therefore not open to the Tribunal to 'add an additional step to the principle that limits the extent to which the applicant would be afforded tolerance' (ts 12). In short, he submits that the Tribunal was not free to modify the principle in paragraph 5.2(6) by adding its own assessment that the community's tolerance was diminished by repeated offending.

66    His counsel also submitted that it would be 'somewhat circular' to apply Direction No 110 by starting with the proposition that tolerance of serious conduct is increased because a person has lived in Australia from a very young age, but then to reason that the tolerance is diminished because it is serious conduct.

67    In response to questions from the bench, Mr Donevski's counsel explained the point this way. The Tribunal was required to apply the principle in paragraph 5.2(6) to its assessment of the weight to be given to the expectations of the Australian community. But rather than determining that the frequency of Mr Donevski's offending was relevant to those expectations, as it was entitled to do, the Tribunal determined that it was relevant by diminishing the level of tolerance that the community would afford to him, despite the fact that he was in Australia from a very young age, so that it effectively failed to apply that principle.

Consideration

68    With respect, the submissions advanced on behalf of Mr Donevski fail to engage with one well known case of general application, with the text of Direction No 110 itself, and with another case of specific relevance.

69    The well-known case of general application is Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272: the Tribunal's reasons are not to be read with an eye keenly attuned to the perception of error. As a busy administrative tribunal, it is not to be held to unrealistic standards of linguistic or logical purity. Read fairly as a whole, the Tribunal's key reasoning in paragraph 149 as set out at [27] above gave due regard to the principle that an increased tolerance would be afforded to non-citizens who had been in Australia from a very young age. But it also took account of the matter, reflected in an earlier principle (that in paragraph 5.2(4)), as well as in the mandatory wording of paragraph 8.5(3), that serious character concerns would lead to an expectation on the part of the Australian community that the visa would remain cancelled. That the Tribunal expressed this expectation in terms of reduced 'tolerance' does not mean that it misunderstood or misapplied or failed to apply the principles in paragraphs 5.2(4) and 5.2(6). An expectation that a visa would remain cancelled due to certain conduct bespeaks a reduced tolerance for that conduct.

70    The aspects of the text of Direction No 110 which ground 2 overlooks are fourfold.

71    First, there is the broad language at the beginning of paragraph 5.2 that the principles 'provide the framework within which decision-makers should approach their task'. Such deliberately indeterminate language does not mandate any mechanical application of the principles, as though they are rules to be applied in all circumstances, regardless of the circumstances. Rather, it is the mandatory considerations in Part 2 that must be taken into account (where relevant) and the principles provide a framework, in the sense of a guide.

72    Second, paragraph 5.2(6) is not the only principle that forms part of the framework, and the Tribunal was entitled, indeed bound, to incorporate other principles as part of the framework within which it was to approach its decision. In some circumstances, the principles may pull in different directions. It will be for the Tribunal to determine how to resolve that tension, including by deciding what weight to apply to each principle in the circumstances. The Tribunal's reasoning as set out above was entirely consistent with this.

73    Third, paragraph 5.2(6) itself only provides that Australia 'may' afford a higher level of tolerance to those who have been in the community for a long time or from a young age. This is an implicit recognition that it is a guiding principle only, and the weight to be given to it will be a matter for the Tribunal to determine in the circumstances of the particular matter.

74    Fourth, paragraph 6 of Direction No 110 provides that decision makers are to take into account the various primary and other considerations '[i]nformed by the principles in paragraph 5.2'. This again is deliberately open-ended language which affords the Tribunal latitude as to how it applies the principles.

75    The case of specific application with which Mr Donevski's submissions failed to engage is CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382. There, Colvin J considered the correct approach to take to the principle now found in paragraph 5.2(5) of Direction No 110, which was referred to before him as 'the tolerance principle'. Of this, his Honour said:

[26]    … Given its character it may be complied with by decision-makers (in the present case, the Tribunal) using the principle and the other principles as a framework or overall structure within which to undertake their deliberations. Unlike other provisions in the Direction (some of which are described below), the tolerance principle is not expressed as a consideration which the decision maker must take into account and attribute weight in the decision-making process. This is a significant aspect to be borne in mind when considering the submissions advanced by the applicant as to alleged flaws in the Tribunal's reasoning developed by reference to the terms of the tolerance principle.

[27]    After the Preamble, there is Part 2 of the Direction which is headed 'Exercising the discretion'. It begins with the following provision (para 6):

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

It may be noted that it is the considerations that follow the above provision that are required to be taken into account by the Direction (where relevant). The requirement is that the principles in the Preamble, including the so-called tolerance principle, must inform the manner in which the identified considerations are taken into account. It appears, in effect, that the principles are overarching matters that must guide the manner and circumstances in which the identified considerations are to be taken into account.

[28]    However, contrary to submissions advanced for the applicant, these aspects of the Direction are not mandatory relevant considerations for the exercise of the discretionary power to refuse a visa application that is conferred by s 501(1) in the particular circumstances specified in that provision. Rather, the requirement imposed by s 499 is to comply with the Direction.

76    And later, his Honour said (omitting citations):

[53]    In any event, the use of the words 'may afford a higher level of tolerance' in the second part of the tolerance principle, meant that it was a matter for the Tribunal to form a judgment as to whether and if so in what way, in all the circumstances, the tolerance principle (as part of the framework to inform the manner in which the Tribunal would take into account the primary and other considerations) might guide the process of taking the specified considerations into account.

[54]    The tolerance principle is a statement of a normative principle to the effect that the Australian community may afford a higher tolerance for offending by those non-citizens who have lived in the country for most of their life or from a very young age. It ameliorates the deeming effect of the preceding principle stated in para 5.2(3) of the Direction, which is a principle to the effect that the Australian community expects its government to refuse entry to people who engage in conduct that raises serious character concerns …

77    Then, when describing the reasoning of the Tribunal in that case, Colvin J said:

[59]    The Tribunal then concluded in respect of the tolerance principle, that the Australian community's expectations (being that entry should be refused to a person who has engaged in conduct that raises serious character concerns) 'are not fundamentally modified' by the tolerance principle. This was a conclusion that could not be described as inconsistent with the terms of the Direction concerning the tolerance principle. Nor could it be described as illogical. It was an analysis of the circumstances of the Visa Applicant that was reasonably open to the Tribunal.

[60]    Further, the tolerance principle was not itself a matter to which the Tribunal was required to have regard if relevant. Rather, as has been explained, it was a principle that was to inform the task of taking into account those matters which the Direction required the Tribunal to take into account in deciding whether to exercise the discretion conferred by s 501(1). It was a principle which itself was expressed in terms that required an evaluation as to whether the higher level of tolerance 'may' in all the circumstances be afforded. In those circumstances, there was no evident flaw in the Tribunal considering the principle in the manner in which it did and reaching a conclusion that for the purposes of primary consideration (4), the tolerance principle did not fundamentally modify the deeming aspect of the earlier principle to the effect that there was an expectation that entry should be refused if a visa applicant had engaged in conduct that raised serious character concerns.

78    This reasoning was upheld on appeal: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94. With respect, it is consistent with the aspects of the text of Direction No 110 to which I have drawn attention, and is inconsistent with Mr Donevski's case. That case seeks to ascribe to the principle in paragraph 5.2(6) categorical and exhaustive qualities which it does not have.

79    At bottom, the approach the Tribunal took to the principle here was to apply common sense. It gave such credence and weight to the principle as it considered appropriate in the circumstances, but also took account of another matter - the repeated nature of Mr Donevski's offending - which was likely to reduce the level of tolerance the Australian community would display, and so would affect the weight to be placed on the consideration of the expectations of that community. To do this was to apply another principle, the one in paragraph 5.2(4). And it was essentially consistent with the reasoning of the different Tribunal which Colvin J approved in CWRG.

80    In this case, then, the Tribunal did not graft some additional principle onto paragraph 5.2(6); it simply put the principle in its proper place in the array of matters that affected the weight to be accorded to the primary consideration of the expectations of the Australian community.

81    I do not uphold ground 2.

Conclusion

82    The application for judicial review will be dismissed, with costs. The Minister sought 145 days for the parties to seek to agree on costs before it would be referred to a registrar to be assessed on a lump sum basis. While that seems at first blush to be a very long period of time, I assume that it reflects the experience of the Minister as a litigant who frequently seeks to reach agreement on costs in circumstances like these, and it was not opposed by Mr Donevski, so an order to that effect will be made.

Associate:

Dated:    12 March 2026