Federal Court of Australia

Minister for Immigration and Citizenship v QLZD [2026] FCA 590

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the Administrative Review Tribunal dated 24 April 2025 in review 2025/0870.

2.    A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine the review according to law.

3.    The composition of the Tribunal upon the rehearing be a matter for the President to determine.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The first respondent was born in Liberia in 2002 and migrated to Australia in 2016 when aged 13. He held a Class AH Subclass 101 Child Visa until it was cancelled in the circumstances set out below. The Minister seeks judicial review of a decision of the Administrative Review Tribunal which “revoked” a decision of a delegate of the Minister who declined to revoke the cancellation of the first respondent’s visa.

Background

2    In July 2016 the first respondent was granted a visa and migrated to Australia with his two brothers. His father and stepmother were already living in Australia, having arrived in 2009. He has two stepbrothers and a stepsister in Australia. His mother remained in Liberia until her death in 2023. The first respondent gave evidence to the Tribunal that he has no other family or friends in Liberia.

3    On 20 August 2021, the first respondent was convicted in the Children’s Court of Victoria at Melbourne of attempted robbery, armed robbery, intentionally causing injury, committing an indictable offence whilst on bail, robbery, recklessly causing injury, making threats to kill, and stating a false name and address when required by a police officer to provide personal details. He was sentenced to four months’ detention in a youth justice centre.

4    On 17 November 2021, the first respondent was convicted in the Magistrates Court of Victoria at Ringwood of affray, recklessly causing injury, and committing an indictable offence whilst on bail. He was sentenced to five months’ imprisonment.

5    On 9 December 2022, the first respondent was convicted as an adult in the County Court of Victoria of aggravated carjacking and sentenced to three years and six months’ imprisonment. The term of imprisonment was informed by mandatory sentencing provisions which required that the first respondent be imprisoned for a non-parole period of at least three years. He was also convicted of two counts of theft and one count of committing an indictable offence while on bail for which he was fined. The offending commenced on the evening of 12 April 2021 when the first respondent stole alcohol from a bottle shop in Mooroolbark. The following day the first respondent approached a man sitting in his car with the door open in Kew, Melbourne. The first respondent told the victim that he had a knife and gestured to an object concealed under his clothing. The victim tried to close the car door, but the first respondent prevented him from doing so. The victim then got out of the car whereupon the first respondent struck him over the head with a beer bottle and punched him in the face causing him to fall to the ground. The first respondent took the keys to the car and drove away. He later filled the car with petrol and drove away from the service station without paying.

6    During the time of his imprisonment for the carjacking offence, the first respondent was convicted of the following offences:

(1)    On 22 August 2023, the first respondent was convicted in the Magistrates Court of Victoria of recklessly causing injury and sentenced to one month’s imprisonment.

(2)    On 25 August 2023, the first respondent was convicted in the Magistrates Court of Victoria of affray and sentenced to six months’ imprisonment. This offence occurred on 29 September 2022 while the first respondent was detained at Ravenhall prison. He struck a fellow inmate multiple times with a metal vacuum cleaner pipe. When prison staff attempted to intervene, he resisted, pushed past them and continued his assault.

7    On 5 June 2023, a delegate of the Minister cancelled the first respondent’s visa pursuant to s 501(3)(b) and (3A) of the Migration Act 1958 (Cth) on the grounds that the delegate was satisfied that the first respondent had a substantial criminal record and therefore did not pass the character test, and was then serving a term of imprisonment.

8    The first respondent then made representations to the Minister pursuant to s 501CA(4) of the Act claiming that there was another reason why the mandatory cancellation of his visa should be revoked.

9    On 29 January 2025, a delegate of the Minister determined that the first respondent did not pass the character test, and that there was not another reason why the mandatory cancellation of the first respondent’s visa should be revoked. The first respondent sought review by the Administrative Review Tribunal of the delegate’s decision not to revoke the cancellation of his visa. The Tribunal “revoked” the delegate’s non-revocation decision. The Tribunal’s decision could have been better expressed as a decision to set aside the delegate’s decision and in its place to revoke the mandatory cancellation of the first respondent’s visa: see the Tribunal’s powers in Administrative Review Tribunal Act 2024 (Cth), s 105. It was not in dispute that this was the objective intention of the Tribunal’s decision.

The Tribunal’s reasons

10    It was not in issue that the applicant did not pass the character test. The question before the Tribunal was whether there was another reason to set aside the delegate’s non-revocation decision.

11    The Tribunal’s statement of reasons (R) followed the framework of Ministerial Direction No 110. Subsection 499(2A) of the Migration Act required the Tribunal to comply with the Direction. The Direction distinguished between primary considerations and other considerations. The primary considerations are the protection of the Australian community, the strength, nature and duration of ties to Australia, the best interests of minor children in Australia, and the expectations of the Australian community. The other considerations are the legal consequences of the decision, the extent of impediments if removed and the impact on Australian business interests.

12    The Direction provided in subsection 7(2) that the primary consideration of the protection of the Australian community was generally to be given greater weight than the other considerations, and that otherwise primary considerations should generally be given greater weight than other considerations.

13    There are elements of the Tribunal’s reasons that are not altogether clear. The Tribunal’s treatment in its reasons of the expectations of the Australian community is ambiguous and contentious, and I will address it later. Otherwise, at a high level, the Tribunal made the following findings in relation to factors to which the Direction required attention –

(a)    the nature and seriousness of the first respondent’s criminal offending was serious, and he posed a moderate risk to the Australian community which weighed in favour of affirming the cancellation decision;

(b)    there was no history of family violence, and therefore this factor was neutral;

(c)    the first respondent’s ties to Australia, including the presence of his father, stepmother, siblings and stepsiblings, weighed in favour of revoking the cancellation decision;

(d)    similarly, the best interests of children, specifically the first respondent’s siblings and stepsiblings, weighed in favour of revoking the cancellation decision;

(e)    the first respondent’s personal circumstances, including his young age, the support of his family, and the fact that he had voluntarily undertaken several rehabilitation courses while in prison were given “great weight”, with the Tribunal finding that the first respondent did not pose an unacceptable risk to the Australian community with the result that the Tribunal stated at R [97] that it had given “some weight” to the fact that the first respondent did not present an unacceptable risk to the Australian community in favour of revoking the cancellation decision;

(f)    the legal consequences of the Tribunal’s decision, which were identified as including removal to Liberia in circumstances where the first respondent stated that he feared harm, were given little weight because it would be open to the first respondent to apply for a protection visa at which time Australia’s non-refoulment obligations would be properly considered;

(g)    the first respondent’s limited education and vocational skills, mental health issues, including depression, anxiety, post-traumatic stress disorder, and substance misuse disorders, and physical health issues, including Hepatitis B weighed heavily in favour of revoking the cancellation decision; and

(h)    there was no evidence that Australian business interests would be affected by the decision, and therefore this factor was considered neutral.

The application to the Court

14    The applicant seeks an order that the decision of the Tribunal be quashed on the ground of jurisdictional error, and that a writ of mandamus issue requiring the Tribunal, differently constituted, to determine the first respondent’s review according to law. There were two preliminary issues regarding the competency of the application raised by the first respondent which fell away during the course of the hearing with the result that they do not need to be addressed.

The grounds of review

15    The Minister relies on two grounds for the relief sought in the originating application, supported by particulars.

The first ground – offences committed by the first respondent when he was a minor

16    The first ground of review is as follows –

1.    The Tribunal erred in refusing to consider all of the First Respondent’s past criminal convictions and therefore failed to exercise its statutory task under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

Particulars

(1)    The First Respondent had been found guilty, convicted and sentenced to terms of detention for criminal offences by the Melbourne Children’s Court on 20 August 2021 and the Ringwood Magistrates’ Court on 17 November 2021.

(2)    The Tribunal held it was bound not to consider those convictions in deciding whether there was “another reason” the First Respondent’s visa cancellation should be revoked, on the authority of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 and Lesianawai v Minister for Immigration, Citizenship, and Multicultural Affairs [2024] HCA 6.

(3)    The Tribunal incorrectly considered that Thornton and Lesianawai required it to ignore any juvenile offending of the First Respondent, regardless of whether convictions had been recorded or terms of detention imposed.

(4)    Thornton and Lesianawai only required the Tribunal to ignore any juvenile offending of the First Respondent for which no conviction had been recorded, by force of s 85ZR(2) of the Crimes Act 1914 (Cth).

(5)    The Tribunal therefore erred in refusing to consider the full extent of the First Respondent’s relevant criminal history, including his juvenile convictions, as required by Part 8.1 of Direction No. 110.

(6)    Further or alternatively, the Tribunal erred in failing to consider the convictions recorded by the Ringwood Magistrates’ Court as those offences were committed while the First Respondent was an adult, not a juvenile.

(7)    The Tribunal’s legal error was material as, had it taken into account the First Respondent’s full criminal history, there was a realistic possibility it might have changed its assessment of whether there was “another reason” the First Respondent’s visa cancellation should be revoked.

17    By the first ground the Minister claims that the Tribunal erred by deciding that it was precluded from placing any weight on the offences committed by the first respondent while he was a minor. The first respondent accepts with minor qualifications that the Tribunal erred in this regard, but disputes that the error was material.

The first ground – identification of the Tribunal’s error

18    In considering whether there was “another reason” to revoke the cancellation of the first respondent’s visa, paragraph 8.1 of Direction No 110 required the Tribunal to consider the nature and seriousness of his offending. However, at R [34] to [36] the Tribunal erroneously concluded that it was compelled by authority not to consider the first respondent’s juvenile offending –

34.    In the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton the High Court held that ss 85ZR(2) and 85ZS(1)(d)(ii) of the Crimes Act 1914 (Cth) prohibited an administrative decision maker from taking a finding of guilt into account in circumstances where no conviction was recorded for the offence because of the operation of s 184(2) of the Youth Justice Act (Qld).

35.    In Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs it was held that s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW), ('Children Proceedings Act') in its terms and effect, was sufficient to engage s 85ZR(2) of the Crimes Act 1914 (Cth) and as such the Applicant was taken to have never been convicted of the offences dealt with by the Children's Court. The provisions of the Children Proceedings Act reflect a clear distinction between a finding of guilt and a conviction. Beech-Jones J held that under the Children Proceedings Act, a finding of guilt is not a conviction and, subject to any statutory provisions that provide to the contrary, is not treated as a conviction for any purpose.

36.    Accordingly, the Tribunal has not placed any weight on the Children's Court offences for the purpose of this decision.

19    There were two groups of offences committed by the first respondent that the Tribunal treated as juvenile offending. The Tribunal at [36] referred to both groups of offences as “the Children’s Court offences”. The first group of offences were the subject of the findings of guilt and conviction by the Children’s Court at Melbourne on 20 August 2021. The second group were the subject of findings of guilt and conviction on 17 November 2021 at the Magistrates Court at Ringwood.

20    The Tribunal’s treatment of the second group of offences as juvenile offending is the subject of a discrete challenge by the Minister on the ground that the first respondent committed those offences as an adult and not as a minor. However, the Minister accepted that the Tribunal’s error appears to have resulted from the Tribunal acting on the facts stated in the statement of facts issues and contentions filed by the Minister with the Tribunal. Nonetheless, the Minister persisted with a submission that the Tribunal thereby fell into jurisdictional error.

21    It is convenient to dispose of that aspect of the first ground of review immediately. The idea that the Tribunal would fall into jurisdictional error by acting upon a factual assumption in the Minister’s statement of facts issues and contentions is a surprising one. There was no submission that the Tribunal acted unreasonably in doing so. The Tribunal’s error in treating the second group of offences as juvenile offending was founded upon an error of fact that was induced by the Minister’s conduct in the review. I reject the Minister’s submission that this was a jurisdictional error. The error did not involve any legal unreasonableness, and any mischaracterisation of the offending was a factual error within jurisdiction. However, the real point is whether, on the other grounds that were advanced, there was a supervening error in failing to take account of the offences that the Tribunal described as “the Children’s Court offences” on the ground that the Tribunal misdirected itself as to the law.

22    The error advanced by the Minister arises from the Tribunal’s application of the High Court’s decisions in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; 276 CLR 136 (Thornton) and Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs [2024] HCA 6; 281 CLR 1 (Lesianawai). Both Thornton and Lesianawai concerned the application of s 85ZR(2) of the Crimes Act 1914 (Cth), which provides:

(2)     Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or foreign country:

…

(c)    the person shall be taken, in any State or foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.

23    In both Thornton and Lesianawai, the High Court considered whether the State laws in issue attracted the operation of s 85ZR(2), that is, whether they had the effect that the offender was to be taken never to have been convicted of the offence for which they were found guilty. In Thornton, the relevant State law was s 184(1) of Youth Justice Act 1992 (Qld) which provided that “a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose”. In Lesianawai, the relevant State law was s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) which prohibited the Children’s Court of New South Wales from recording a conviction in relation to a child under the age of 16 years.

24    The Tribunal applied Thornton and Lesianawai without giving any consideration to the question whether for the purposes of the review there was any Victorian law that attracted the operation of s 85ZR(2) of the Crimes Act. The Tribunal’s reasons do not refer to any Victorian law which has the effect that the first respondent is to be taken never to have been convicted of the offences he committed while he was a minor. The first respondent submitted that s 8(1) of the Sentencing Act 1991 (Vic) and s 584 of the Children Youth and Families Act 2005 (Vic) may in certain circumstances have that effect. However, the first respondent accepted that neither of those provisions applied here because convictions were recorded in relation to the juvenile offending. Accordingly, it was accepted that the Tribunal erred in deciding that it was precluded from giving any weight to the first respondent’s juvenile offending.

25    The first respondent submitted that there was a burden on the Minister within the terms of the grounds that were advanced to establish that the Tribunal was required under Direction 110 to have regard to each and every conviction. The first respondent accepted that paragraph 8.1.1(c) of Direction 110 required the Tribunal to have regard to “the sentence imposed by the courts for a crime or crimes” and that the recording of a conviction may be part of the sentence and thus something to which the Tribunal was required to have regard. I do not consider that this submission squarely addresses the nature of the Tribunal’s error, which was that it erroneously regarded the two groups of offending as mandatory irrelevant considerations. The first respondent accepted that the Tribunal stated at R [36] that it had not placed any weight on the Children’s Court offences for the purpose of its decision while noting that the earlier offending was introduced indirectly through the report of a psychologist, Sandra Cokorilo. The psychologist was of the opinion that the first respondent was at moderate risk of reoffending, and this opinion had been based upon all of the first respondent’s criminal history, including the convictions that were recorded on 20 August and 17 November 2021.

26    Subject to the above submissions, the first respondent accepted that the Tribunal had erred. Therefore, the real issue in dispute in relation to the first ground is whether the Tribunal’s error in not taking account of the first respondent’s the convictions that were recorded on 20 August and 17 November 2021 was material.

The first ground – was the Tribunal’s error material?

27    The question whether the Tribunal’s error was material involves the application of the principles essayed in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 (LPDT) at [9] to [16] and [29] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, with whom Beech-Jones J at [38] agreed). The question whether the Tribunal’s error was material is wholly backward-looking. It requires consideration of whether the decision that was in fact made could, not would, realistically have been different had there been no error. The word “realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the Minister must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker. The point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. At [16] of the joint judgment in LPDT the position was summarised –

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

28    The above passage should be read with [29] of the joint judgment, and especially the concluding sentence –

A reviewing court does not engage in a review of the merits of the decision, reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision.

(Footnotes omitted.)

29    In submitting that the Tribunal’s error was material the Minister referred to several paragraphs of the Tribunal’s reasons which described the first respondent’s offending as occurring over a “short period of time”. The Minister submitted that if not for its misapplication Thornton and Lesianawai, the Tribunal might have viewed the first respondent’s offending as more serious because it occurred over a longer period of time, the Tribunal might have placed greater weight on the expectations of the Australian community, and therefore the Tribunal might have decided to affirm the non-revocation decision.

30    The first respondent submitted that the Tribunal’s error was not material for three reasons. First, the Tribunal otherwise considered the first respondent’s juvenile offending by placing significant weight on the psychological report of Ms Cokorilo, which addressed that offending. Secondly, the juvenile offending was unlikely to have affected the outcome because the Tribunal addressed the first respondent’s more recent and more serious adult offending and nonetheless decided to revoke the cancellation decision. Thirdly, the Minster conceded at the Tribunal hearing that the juvenile offending should not be given much weight and was only relevant as background and history. The transcript of the Tribunal hearing was in evidence, and the following exchange took place between the Tribunal member and the Minister’s legal representative –

Minister’s representative:    My understanding is that the offending that he was convicted of as a juvenile, you can take into account.

Tribunal Member:        And give it much weight?

Minister’s representative:    But not give it much weight. But nonetheless, his carjacking offending, which is the sentence for which his visa was revoked, being three years and six months, I consider as substantial enough that the Tribunal should be able to find that weighs heavily against the Applicant.

We submit that the Tribunal should take a very dim view of the length of the Applicant's criminal history, despite his young age, which amounts to a serious and repeated disregard for Australian law. Further, there is a clear trend of increasing seriousness.

(Emphasis added.)

31    There was second passage of the transcript on which the first respondent relied –

Minister’s representative:    That’s great. Just out of the abundance of caution with respect to your question about the Applicant’s juvenile offending, I’m sure you understand, but just so that I’ve done my due diligence, [inaudible 30:49] background and history not as part of it.

32    I find that by the oral submissions, in combination with the Minister’s statement of facts issues and contentions, the Minister submitted to the Tribunal that the first respondent’s aggravated carjacking was the most serious of the first respondent’s offending, but nonetheless relied on the whole of the first respondent’s criminal history.

33    As to the second passage of transcript, I am not able to make any findings in relation to what was submitted on behalf of the Minister in that passage. The first respondent submitted that it was open to the Minister to adduce evidence to clarify what was said. However, the Minister’s representative was cross-examined before me by counsel for the first respondent in relation to another issue, and she was not questioned about this issue. And even if I were to apply a principle such as that essayed in Brandi v Mingot [1976] 12 ALR 551 at 559–560 (Gibbs ACJ, Stephen, Mason, and Aickin JJ) concerning the weight to be given to the evidence, that does not assist me in making an affirmative finding in relation to the substance of the submission to the Tribunal.

34    The threshold of materiality is not high. The Tribunal put to one side “the Children’s Court offences” stating that it placed no weight on them. As might be expected, the Tribunal focussed on the aggravated carjacking offence. However, when it came to the weightiest of the primary considerations, being protection of the Australian community, it is not possible to say that the Tribunal’s decision would inevitably have been the same had it taken account of a more complete history of the first respondent’s offending and jail terms without the Court stepping into the Tribunal’s shoes and reconstructing a weighing process directed to determining what the Tribunal’s conclusion might otherwise have been. For instance, the Tribunal held at R [109] that the first respondent did not pose an unacceptable risk to the Australian community yet held at R [73] that the first respondent represented a moderate risk to the Australian community which weighed in favour of affirming the cancellation decision. On the basis of this reasoning the Court is not able to speculate as to what the Tribunal might have concluded had it correctly addressed the first respondent’s full relevant history of offending and sentencing, still less be satisfied that the Tribunal’s decision would not have been different.

35    The Minister has therefore established that the Tribunal’s decision was affected by a material error and that the error was jurisdictional.

The second ground – misapplication of Direction 110

36    The second ground of review in the originating application is as follows –

2.    The Tribunal erred in failing to correctly apply the “Expectations of the Australian community” primary consideration in Direction No. 110 pursuant to s 499 of the Act.

Particulars

(1)    The Tribunal gave “some weight” to the “Expectations of the Australian community” primary consideration in favour of revoking the cancellation of the First Respondent’s visa, on the basis that the First Respondent did not represent an unacceptable risk to the Australian community.

(2)    The Tribunal erred by failing to apply the deemed expectations of the Australian community by reference to the serious criminal conduct engaged in by the First Respondent in breach of those expectations, which was required by paragraph 8.5(1) of Direction No. 110, rather than solely by reference to whether the First Respondent was an unacceptable risk of engaging in such conduct in the future.

(3)    Further or alternatively, the Tribunal’s attribution of weight to the primary consideration in favour of the First Respondent was in error, as the primary consideration must weigh against the revocation of a visa cancellation in every case.

(Emphasis omitted.)

37    By the second ground the Minister claims that the Tribunal misapplied paragraph 8.5 of Direction No 110, concerning the expectations of the Australian community, which provides –

8.5.    Expectations of the Australian Community

(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.

…

(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.

38    The Tribunal addressed this consideration in the following terms, where I have included the heading because of its significance –

Expectations of the Australian community

89.    Paragraph 8.5(1) of Direction 110 provides that 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.

90.    Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation 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. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.

91.    Critically, 8.5(4) states:

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

92.    In FYBR v Minister for Home Affairs [2019] FCAF 185, the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community is an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision. In doing so the Tribunal is required to consider the specific circumstance of the Applicant's case

…

97.    While the Tribunal accepts that the Applicant has committed a serious offence and does possess a risk of reoffending if released into the community, it has placed great weight on the Applicant's young age, the support of his family and the fact that he has undertaken, on his own initiative, relevant courses, and programs to deal with his drug and alcohol abuse and violent offending. Given these circumstances, the Tribunal considers that the Applicant does not represent an unacceptable risk to the Australia [sic] community. As such, the Tribunal has given some weight to the fact that the applicant does not present an unacceptable risk to the Australia community, in favour of revoking the cancellation decision.

39    The Tribunal later concluded –

109.    The primary consideration is the protection of the Australian community. While the Applicant's offending was serious, for the reasons above the Tribunal has found that the Applicant does not pose an unacceptable risk to the Australia [sic] community. Having considered the expectations of the Australian community, the strength, nature and duration of the Applicant's ties to Australia, the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal has found that the Applicant is an acceptable risk to the Australian community. As such, the Tribunal is satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.

The second ground – the parties’ submissions

40    The Minister submitted that the Tribunal erred on four related bases. First, the Tribunal erred in deciding that it was required to “consider the specific circumstance [sic] of the Applicant’s case” in determining “the weight that should be given to this issue”. The Minister submitted that the Tribunal was not permitted to reduce the absolute weight given to community expectations by reference to the first respondent’s circumstances, only the relative weight of that consideration. Secondly, the Tribunal erred in concluding that it was able to attribute no weight to community expectations because the first respondent did not pose an “unacceptable risk” to the Australian community. The Minister submitted that the terms of paragraph 8.5(1) are enlivened where the non-citizen has either engaged in serious conduct or there is an unacceptable risk that he or she may do so. Since the first respondent has engaged in serious conduct, the Minister submitted that the Tribunal was bound to take into account community expectations irrespective of whether there was an unacceptable risk that he would do so again. Thirdly, the Tribunal erred in attributing no weight to the expectations of the community in favour of affirming the non-revocation decision or, fourthly, in weighing this consideration in favour of the first respondent. The Minister submitted that where paragraph 8.5(1) is engaged, community expectations must weight in favour of affirming a non-revocation decision.

41    The first respondent submitted that the Tribunal’s reasons were susceptible of being understood in different ways. The first respondent submitted that the Tribunal correctly summarised and applied paragraph 8.5 of the Direction, and that the Minister’s interpretation of the Tribunal’s reasons as giving no weight to community expectations or giving them weight in favour of revoking the cancellation decision, was wrong. Further, the first respondent submitted that any error in the application of the Direction was not material because the Tribunal had rationally determined that the cancellation decision should be revoked on the basis of strong countervailing considerations.

The second ground – consideration

42    I accept the first respondent’s submission that the Tribunal’s reasons are open to different interpretations.

43    One interpretation of the Tribunal’s reasons is that at R [97] the Tribunal has concluded in the section of its reasons dealing with the expectations of the Australian community that this element actually favours revocation of the cancellation decision because the first respondent does not represent an unacceptable risk to the Australian community, thereby distorting if not neutralising the prescribed expectations of the Australian community. If that is what the Tribunal did, then that would be an error: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at [50] to [51] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ).

44    However, I think the better view of the Tribunal’s reasons is that the Tribunal concluded that the first respondent’s conduct was serious and gave full force to the expectations of the Australian community as set out in the Direction. It did so at R [89] to [92] in referring to and accurately identifying what the expectations were and instructing itself by reference to paragraph 8.5(4) of the Direction – which it set out – that it was not to assess independently the community’s expectations in a particular case. Having reached that point, the Tribunal then engaged in a weighing process. The Minister did not contest that the Tribunal was entitled to weigh the community expectations against other relevant factors in a final weighing process. Whether the first respondent represented a substantial risk to the Australian community was a factor that was relevant to the Tribunal’s evaluation of the first primary consideration and generally to the safety of the Australian community: see paragraphs 8.1.1 and 8.1.2 of the Direction. Now, as I alluded to earlier there is some unexplained tension between the Tribunal’s conclusion at R [73] that the first respondent represented a moderate risk to the Australian community and the Tribunal’s conclusion at R [97] that the first respondent did not present an unacceptable risk to the Australian community and in stating further that this favoured revocation. However, the Minister did not challenge this aspect of the Tribunal’s decision on the ground of irrational reasoning.

45    The Tribunal is a high-volume decision-maker acting under the time constraint in s 500(6L) of the Migration Act. This case is a situation where the High Court’s guidance that a court should not be astute to discern error has work to do: see Plaintiff M1 2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ). The Tribunal’s reasons have to be read as a whole and when R [97] is read together with R [109] the better view is that at R [93] to [97] the Tribunal undertook an interim step in the final weighing process that was then picked up and incorporated into R [109]. There was no necessary error in doing so: DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344 at [62] (Wigney, Wheelahan and Halley JJ). While undertaking an element of the weighing process under the heading “Expectations of the Australian community” was infelicitous, it was not a jurisdictional error.

Conclusions

46    The decision of the Tribunal should be quashed, and the Tribunal should undertake the review according to law.

47    The constitution of the Tribunal upon rehearing of the review is a matter for the President: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42 to 43 (Davies and Foster JJ); Read v Military Rehabilitation and Compensation Commission [2018] FCA 848; (2018) 75 AAR 356 at [38] (Logan J).

48    I will hear the parties on the question of costs.

Associate:

Dated:    12 May 2026