Federal Court of Australia

Cai v Minister for Immigration and Citizenship FCA [2026] FCA 601

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    The application for review be dismissed.

3.    The applicant to pay the costs of the first respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant was born in China on 15 June 1981. He arrived in Australia as a holder of a visitor visa in 2012. He returned to Australia in 2015 with his wife and daughter, after being granted a Subclass 457 visa as a secondary visa holder in connection with his wife’s Subclass 457 visa. The applicant was granted a Subclass 186 visa on 10 July 2019.

2    On 16 June 2022 the applicant was convicted of one count of Dealing with Proceeds of Crime $1,000,000 or more: s 400.3(1) of the Criminal Code Act 1995 (Cth). He was sentenced to 7 years and 6 months imprisonment, with a non-parole period of 4 years. On 3 September 2024, the applicant’s visa was mandatorily cancelled. On 10 September 2024, the applicant sought the mandatory cancellation of his visa be revoked, which was refused on 27 May 2025. On 20 August 2025, the Administrative Appeals Tribunal (Tribunal) affirmed the decision not to revoke the cancellation. This is an application for an extension of time in which to apply for a review of that decision. The extension of time was not opposed by the Minister. In those circumstances, the extension of time is granted. The hearing proceeded as a review of the Tribunal’s decision.

3    The sole ground of review is that the Tribunal misunderstood and/or misapplied paragraph 8.5 of Ministerial Direction No 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024) (Direction) in affirming the decision not to revoke.

4    While the application for the extension of time is granted, for the reasons below the review application is dismissed.

Consideration

5    As this review is based on paragraph 8.5 of the Direction it is appropriate at the outset to recite its terms in full.

6    Paragraph 8.5 requires the Tribunal to consider ‘Expectations of the Australian community’ in determining cases under s 501CA(4) of the Migration Act 1958 (Cth). It 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.

(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 of 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 measureable 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.

7    In summary, the applicant submitted the Tribunal erred by misapplying paragraph 8.5. Paragraph 8.5(1) refers to the fact that where a non-citizen has engaged in serious conduct in breach of the expectation that non-citizens will obey the law in Australia, the Australian community as a norm expects the Government to not allow such a non-citizen to enter or remain in Australia. Paragraph 8.5(2)(a)-(f) goes on to expressly refer to specific categories of conduct that would cause the Australian community to expect the Australian Government to refuse entry or cancel a non-citizen’s visa. The applicant’s offence did not fall within any of the categories identified in paragraph 8.5(2)(a)-(f). He submitted that on the reasoning in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; 280 CLR 265 (Ismail) at [52], the Tribunal was to proceed on the basis that the views of the Australian Government as set out in paragraph 8.5(1)-(2) of the Direction, were the relevant norm described as the expectation of the Australian community. The applicant submitted while the Tribunal purported to have some regard to this requirement in [64]-[65] of its reasons, it is apparent from the nature and language of the reasons at [70]-[73] that it did not properly understand the nature of its statutory task as it related to the application of paragraph 8.5. That is, it was not to impose its own views as to what the expectations of the Australian community ought to have been, as he submitted the Tribunal had done at [70]-[73]. On that basis the applicant submitted there were two errors. First, the Tribunal did not identify and consider the applicant’s offending did not fall within the categories of ‘serious character concern’ set out in paragraphs 8.5(2)(a) – (f). Second, the Tribunal implicitly imposed its own views as to what the expectations of the Australian community ought to be.

8    The relevant paragraphs are as follows: at [64] – [65]

[64]    I turn now to the expectations of the Australian community. Paragraph 8.5(1) 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, the Australian community expects ‘as a norm’ ‒ but not as an inflexible rule ‒ that the Government should not allow that person to remain in Australia. That principle clearly applies here.

[65]    This expectation is expressed to apply regardless of whether or not the citizen poses a measurable risk of causing physical harm to the Australian community. I am also directed not to assess the community’s expectations in any given case but to apply the expectations as expressed in paragraph 8.5. All in all, this consideration counts considerably against [the Applicant] in my view.

9    And at [70]-[73]:

[70]    The offending in question has, however, breached in a very serious way the expectations of the Australian community. That consideration does not predominate over other considerations: no consideration specified in the Direction does. It is nevertheless important in this case. [The Applicant] chose to engage on an ongoing basis in the collection of very significant amounts of cash which he must have known were being entrusted to Mr Ma precisely because they could not be transferred through the banking system without drawing attention to the associated transactions. [The Applicant] may well have been under significant financial pressure, as he asserts, and I have proceeded on the basis that he was, but I have also concluded that he must have known that the money had a likely criminal origin.

[71]    I bear in mind that [the Applicant] has not been charged with, let alone convicted of, any active involvement in any particular form of illegal activity involving drugs, racketeering, or anything else. So he has not had direct involvement in these crimes. Nevertheless, by committing the offence of which he was convicted, [the Applicant] engaged in a highly antisocial act. I return to the sentencing remarks in this regard, where the Court observed that conduct like [the Applicant] ‘is vital to the success of predicate or contemplated criminal offences because it moves the proceeds of crime to third parties or offshore’.

[72]    [The Applicant] has breached the community’s expectations very seriously, as I say. Notwithstanding his financial pressures, and notwithstanding an undoubted element of distortion in his thinking brought on by his adverse circumstances, he chose on an ongoing basis to participate in what was for him a quite lucrative enterprise (in that he earned over $100,000 in a short period of time although I accept that some 45 per cent may have been paid out in expenses). That is a very serious matter for me to weigh.

[73]    After weighing all relevant matters, I have decided that they favour nonrevocation of the cancellation decision. This is not an easy decision to make, precisely because I accept that it will destroy a family unit, and family life is the cornerstone of a stable Australian community, and my decision will affect each family member grievously. Nevertheless, the Direction speaks firmly against serious crime, and I must weigh that factor carefully, even if, as I say, it does not predominate. I accept that the sentencing Court found that the crime fell within the mid-range of offences of this type; but it was still very serious, and extremely large sums of cash were involved over a short period.

10    The applicant’s submission cannot be accepted.

11    It is uncontroversial that it is necessary to consider those paragraphs from the Tribunal’s decision fairly, and in the context of the Tribunal’s reasons as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [60]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.

12    The applicant’s submission is based on Ismail at [52] where the High Court held, in relation to this factor (as set out in the previous iteration of the Direction being Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)):

Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be “in the particular case” (that is, with the knowledge of the delegate about the applicant’s personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7of Direction 90. The delegate’s reasoning accords with these requirements.

13    The Minister submitted the applicant’s submission is addressed by Plaintiff S22 of 2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 (Plaintiff S22), where Gageler CJ, Edelman and Jagot JJ observed at [25]-[26]:

[25]    Neither contention of the plaintiff withstands scrutiny. Paragraphs 101 to 103 of the delegate's reasons reflect the terms of para 8.5(1), (2) and (3) of Ministerial Direction 110. Paragraph 104 of the delegate's reasons applies para 8.5(4) of Ministerial Direction 110, which required the decision-maker to "proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case". In referring, in para 104, to the "Australian community's general expectations", it is not to be assumed or inferred that the delegate wrongly believed the plaintiff's conduct fell within the list specified in para 8.5(2) of Ministerial Direction 110, thereby triggering the application of the "particular" expectation in the second sentence of that paragraph. To the contrary, the fact that the delegate does not identify any such specific conduct of the plaintiff and instead refers at a high level of generality to para 8.5(2) as concerning "certain kinds of conduct" conveys that the delegate understood both that the plaintiff had not engaged in any kind of the specified conduct and that the plaintiff was therefore not subject to the particular expectation in the second sentence of that paragraph.

[26]    This reading of the delegate's reasons is reinforced by the fact that in para 104 the delegate refers only to the "Australian community's general expectations". Those "general" expectations are to be understood as a reference to the "norm" identified in para 8.5(1) (that "[t]he Australian community expects non-citizens to obey Australian laws while in Australia" and "[w]here a non-citizen has engaged in serious conduct in breach of this expectation ... the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia") and the statement in the first sentence of para 8.5(2) (that "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"). The provision in the second sentence of para 8.5(2) beginning with the words "[i]n particular", as a matter of ordinary English text, operates separately and solely by reference to the specified conduct. Having already characterised the plaintiff's custodial sentence for his offending as reflecting the view of the sentencing court that the offending was "very serious", the delegate was entitled to give the expectations of the Australian community significant weight in deciding against the revocation of the mandatory cancellation of the plaintiff's visa even though the plaintiff's conduct was not of the kind specified in para 8.5(2).

(emphasis added)

14    Plaintiff S22 post-dates the Court’s decision in Ismail on which the applicant relies.

15    The applicant submitted that Plaintiff S22 is inconsistent with Ismail, and to the extent of any inconsistency Ismail is to be preferred.

16    The respondent submitted there is no relevant inconsistency. This is correct. Properly read, Ismail at [52] explained that the delegate is not to depart from the norm, as applicable by reference to the terms of paragraph 8.5(1)-(3). The relevant norm is then to be weighed with the other considerations as required by paragraphs 6 and 7 of the Direction. The issue is what weight to give to that norm. It is in that context where Plaintiff S22 recognised that given the sentencing judge viewed the offending as “very serious”, as recorded in the delegate’s decision, “the delegate was entitled to give the expectations of the Australian community significant weight in deciding against the revocation of the mandatory cancellation of the plaintiff's visa even though the plaintiff's conduct was not of the kind specified in para 8.5(2)”: at [26]. That does not change the norm, which focuses on lawbreaking: FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [101]. The weight that is given to that norm, would necessarily turn on the seriousness of the offending.

17    In DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344, considering a predecessor to the Direction, the Full Court said at [57]:

We now turn to the appellant’s claim that the Tribunal made a jurisdictional error by failing to take account of the considerations and submissions referred to at [52] above in evaluating the weight to be given to the expectations of the Australian community. It is important to remember that the norm in para 13.3 is that the Australian community expects non-citizens to obey laws while in Australia. That is the starting point of the analysis. It is relevant to observe that the essence of that norm is obedience to the law. In this regard, specific circumstances directly relevant to obedience to the law, such as frequency, nature, and extent of offending, although the subject of other primary considerations, will often inform the application of the general norm in para 13.3 because those circumstances will provide the foundation for the norm’s focus.

18    See also Minister for Immigration v RXJT [2026] FCA 33, where Moshinsky J reiterated at [61]-[62]:

[61]    Nevertheless, it is open to the decision-maker to consider the level of seriousness of the offending in the particular case, and then to assess the weight to be given to the consideration referred to in paragraph 8.5 (expectations of the Australian community) having regard to the level of seriousness of the offending. In FYBR, Stewart J said at [101]:

Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.

(Emphasis added.)

[62]    The emphasised words in the above passage make clear that it is open to a decision-maker to give more or less weight to this consideration depending on the level of seriousness of the offending. See also FYBR at [102]-[103]; DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; 301 FCR 344 at [57].

19    See also RRRB v Minister for Immigration [2026] FCA 337at [32] (McDonald J).

20    During the hearing the applicant (as an alternative submission) also attempted to confine the application of Plaintiff S22, contending its reasoning should not be read as applying generally, but rather the statements made by the High Court were made in the context of the particular type of offending engaged in by Plaintiff S22. To put that another way, the High Court only concluded there was no error in the Delegate’s reasoning on this aspect because of the serious nature of Plaintiff S22’s offences and therefore its reasoning has no broader application. In making the submission the applicant attempted to distinguish this case on the facts of the offending conduct. The underlying premise of the submission cannot be accepted. It is not supported by the reasoning in Plaintiff S22 at [25]-[26], and therefore the submission fails. The submission fails to grapple with the Court’s reasons which considered the Delegate’s decision in light of its construction of paragraph 8.5. In any event, the submission appears to convert this application to a factual challenge. That is, the applicant’s conduct was not as serious as that of Plaintiff S22 and therefore the Tribunal could not rely on it in the manner it did. However, the ground of review is a constructional one, whether the Tribunal’s reasoning breached paragraph 8.5 (in the manner described above). No aspect of the ground of review is based on an allegation the Tribunal’s findings as to the nature and serious of conduct were, as a matter of fact, unreasonable.

21    Turning to the Tribunal’s reasons.

22    In this case the norm is that in paragraph 8.5(1), as it was in Plaintiff S22. In so far as the applicant relies on the failure of the Tribunal to refer to the conduct in paragraph 8.5(2), no error has been established. It is plain from the Tribunal’s reasons that it did not consider the offence came within the conduct specifically referred to in paragraph 8.5(2)(a)-(f). The obvious inference from the terms of the reasons is that the Tribunal considered the categories and recognised this offence did not fall within these: Plaintiff S22 at [25].

23    It is plain from the Tribunal’s reasons at [64]-[65] that the Tribunal applied the norm in paragraph 8.5(1), and its understanding of the meaning of paragraph 8.5 is clear and correct. Nothing in [70]-[73] alters that. The Tribunal recognised that the consideration of expectations of the community does not predominate over others, but is an important one in this case. That is an acknowledgement that there are countervailing considerations against the expectation expressed in paragraph 8.5(1) and they bore heavily on the Tribunal. The Tribunal stated “it [was] not an easy decision” because of those countervailing considerations and the consequences that would flow from its decision: at [73]. The Tribunal referred to the offence, and the sentencing judge’s description of it: at [71], [73]. This is in a context where the Tribunal had earlier considered the applicant’s offending: at [16]-[38]. In effect, the Tribunal described the offending as “very serious”. The Tribunal was entitled to take the nature of the conduct into account in assessing what weight was to be given to it in the weighing process. A fair reading of the reasons does not support the applicant’s submission the Tribunal considered that nothing could overcome the seriousness of the offending. The Tribunal proceeded on the basis that the expectations of the Australian community were as expressed in the Direction and assessed the weight to be given to this consideration having regard to the level of seriousness of the offending. There is no error in doing so. The Tribunal did not determine for itself the expectations of the Australian community, but applied the norm.

24    The applicant has not established the ground of review.

Conclusion

25    The extension of time in which to file the application for review is granted, but the application is dismissed with costs.

Associate:

Dated:    15 May 2026