Federal Court of Australia

Mitchell v Minister for Immigration and Citizenship [2026] FCA 703

ORDERS

THE COURT ORDERS THAT:

1. The amended originating application dated 5 May 2026 be dismissed.

2. The applicant pay the respondents’ costs of the application 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

MCEVOY J:

1 By an amended originating application dated 5 May 2026, the applicant seeks judicial review of a decision of the Administrative Review Tribunal made on 19 September 2025. That decision affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s Class BF Transitional (Permanent) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2 The applicant advances two grounds of review. The first is that the Tribunal failed to consider certain relevant matters in making its decision, and thereby fell into jurisdictional error. The second, in substance, is that the decision was unreasonable and that it should be quashed on that basis. The Minister’s position is that the Tribunal’s decision is not affected by jurisdictional error and that the amended originating application should be dismissed.

3 For the reasons that follow, I have determined that the grounds of review advanced by the applicant are without merit, and that the originating application will be dismissed.

background

4 The applicant is a citizen of the United Kingdom. He first arrived in Australia in November 1969, when he was four years old. On 1 September 1994, he was granted the visa by operation of law under the Migration Reform (Transitional Provisions) Regulations 1994 (Cth).

5 Since his arrival in Australia the applicant has been convicted of several criminal offences. Most relevantly, on 27 July 2017 he was sentenced in the Supreme Court of Victoria to a term of 10 years’ imprisonment for the offence of manslaughter.

6 On 4 June 2019, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. The applicant made representations seeking revocation of that decision and, on 1 July 2025, a delegate of the Minister decided not to revoke the mandatory cancellation decision. The applicant sought review of the delegate’s decision in the Tribunal, and it is the Tribunal’s decision affirming the delegate’s decision to not revoke the original mandatory cancellation decision that is the subject of the present application.

THE TRIBUNAL’S decision

7 In their respective submissions the parties have accurately summarised and extracted relevant aspects of the Tribunal’s reasons for decision. To understand the applicant’s grounds of review in their proper context it is helpful to record the Tribunal’s reasoning in summary form. In doing so I have substantially adopted the Minister’s summary at [8] to [17] of his submissions, drawing as appropriate on the applicant’s summary at [14] to [17] of his submissions.

8 The Tribunal accepted the applicant’s concession that he did not meet the character test and focused on whether there was “another reason”, having regard to Ministerial Direction 110 (the Direction), to revoke the mandatory cancellation decision (at [18]–[19]).

9 The Tribunal found that the nature and seriousness of the applicant’s criminal history weighed very heavily in favour of not revoking the mandatory cancellation decision (at [26]–[49]), having regard to:

(a) the violent nature of some of the applicant’s past offending;

(b) the fact that sentences of imprisonment were imposed for a number of the applicant’s offences;

(c) its view that the applicant was a “frequent” offender (at [45]), who had engaged in increasingly serious offending;

(d) the cumulative effect of repeat offending;

(e) the impact on the victims of the applicant’s offending; and

(f) the fact that, 10 months prior to committing manslaughter, the applicant had received a formal warning from the Department of Home Affairs that he would be considered for visa cancellation if further information of relevance came to the attention of the Department.

10 In relation to the risk that the applicant posed to the Australian community, the Tribunal found  that the seriousness of the manslaughter offence was such that the community had a lower tolerance for the risk posed, and that even a slight risk of the applicant causing another person’s death was not acceptable (at [51]–[52]). The Tribunal found that the applicant’s risk of violent reoffending was “moderate” (at [53]–[85]), placing emphasis on:

(a) a recent assessment by a consultant forensic psychologist that he posed a moderate risk of recidivism;

(b) terms of imprisonment and threatened visa cancellation having not prevented further offending; and

(c) his health and age, although being of such a nature as to provide motivation to cease offending, not being of such a nature that he could not reoffend in a similar way.

11 The Tribunal found that the moderate likelihood of the applicant engaging in further serious violent criminal conduct also weighed heavily in favour of not revoking the mandatory cancellation decision (at [85]).

12 The Tribunal gave the strength, nature and duration of the applicant’s ties to Australia heavy weight in favour of revoking the mandatory cancellation decision. In reaching that conclusion (at [91]–[110]), it had regard to:

(a) the applicant’s close relationship with his partner, which his partner indicated would end if he departed from Australia;

(b) the applicant’s reconnection with his brother while imprisoned;

(c) the impact that the applicant’s departure from Australia would have on his three (adult) children, as well as his three (adult) stepchildren;

(d) the applicant’s arrival in Australia “over 55 years ago” (at [104]), emphasising that his young age on arrival and periods of positive contribution to the Australian community were such that more weight may be given to his ties to the community;

(e) the applicant’s other ties to his grandchildren and to his partner’s children; and

(f) the applicant’s ties to the Aboriginal community through his stepdaughter’s heritage, which the Tribunal considered were “limited” (at [109]).

13 The Tribunal had evidence before it of a number of children in the applicant’s life or the lives of persons associated with the applicant (at [111]–[124]). It found that it was in the best interests of each of the children in the applicant’s life, particularly his grandchildren, that he remain in Australia (at [125]). However, the Tribunal noted that the children in question were accustomed to contact with the applicant electronically, and that the applicant did not play a parental role in any of their lives. Accordingly, the Tribunal gave consideration of the best interests of minor children moderate weight in favour of revoking the mandatory cancellation decision (at [126]).

14 The Tribunal found that the expectations of the Australian community, deemed by the Direction, were that the visa remain cancelled. It gave those expectations heavy weight in favour of not revoking the mandatory cancellation decision in light of the nature of the applicant’s past conduct and the unacceptable risk of it recurring (at [127]–[131]).

15 The Tribunal found that the legal consequences of a non-revocation decision were that the applicant would be detained and removed from Australia and, after his removal, would be the subject of special return criteria that provides for permanent exclusion from some types of visas should he apply for those visas (at [136]). Having regard to the applicant’s family ties to Australia, his health, and the difficulty he would face re-establishing himself in the United Kingdom, the Tribunal gave those legal consequences weight in favour of revoking the mandatory cancellation decision (at [133]–[138]).

16 The Tribunal accepted that if the applicant were removed to the United Kingdom, his mental health may deteriorate. It also accepted that the applicant had a number of physical health issues. However, it found that the applicant would have access to social, medical and economic support in the United Kingdom (at [143]). The Tribunal further noted that one of the applicant’s sons could offer some financial support to him to assist him in re-establishing himself in the United Kingdom, and that the applicant would not face significant linguistic or cultural barriers there. Placing emphasis on the applicant’s physical and mental health issues and the difficulties he may face re-establishing himself, the Tribunal gave the extent of impediments if removed moderate weight in favour of revoking the mandatory cancellation decision (at [139]–[146]).

17 Having regard to all of these matters, the Tribunal found that there was not another reason to revoke the mandatory cancellation decision, and affirmed the delegate’s decision (at [156]–[162]).

GROUND 1: ASSERTED FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS

The tolerance principle

18 By particulars (a) to (c) of ground 1, the applicant contends that the Tribunal failed to properly apply what has been referred to as the “tolerance principle” when considering the weight to be given to each of the relevant considerations under the Direction.

19 Clause 5.2(6) of the Direction sets out that principle in the following terms:

5.2 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.

…

(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.

20 The applicant submits that the Tribunal noted this principle in the introduction and conclusion of its reasons (at [21] and [156]), but did not engage with it as required by law. He contends that the Tribunal did not assess how the tolerance principle informed the weight to be given to the various relevant factors when deciding whether to restore his visa. The applicant submits that the principle must inform the other factors. In the circumstances of this case, the applicant contends, it is a particularly weighty consideration because of his present age, and the age at which he first came to Australia. The point is that, regardless of his visa status, the applicant has been here for so long that the Australian community should be tolerant of the crimes he has committed, in much the same way as it would be of crimes committed by an Australian citizen.

21 The applicant does not say that the tolerance principle must be applied rigidly, but he contends that it must feature in the weighing exercise and that this is something that the Tribunal failed to do. Shortly put, the applicant’s submission is that that tolerance principle was so obviously engaged that it needed to be considered more explicitly than it was. The applicant submits that because the Tribunal did not properly apply the principle, it therefore did not understand and evaluate the representations, the evidence and the submissions in light of the principle in the course of determining the weight to be given to each of the relevant considerations. This, it is said, then determined the Tribunal’s decision.

22 Although on one view the Tribunal might have been more detailed in its consideration of the tolerance principle, I accept the Minister’s submission that, properly understood, the principle is one that informs the task of taking into account the various primary and other considerations that the Direction prescribes are to be taken into account: Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94; 412 ALR 502 at [65] (Logan, Sarah C Derrington and Anderson JJ), approving CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [60] (Colvin J) (Kumar No 1); see also Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 16; 302 FCR 273 (Reid) at [55] (O’Bryan, Abraham and Shariff JJ). The Minister is correct to submit that the Tribunal is not bound to consider the principle in any particularly rigid way. It is a matter for the Tribunal to form a view as to whether, and if so in what way, in the circumstances, the principle should guide the process of taking the primary and other considerations into account: Kumar No 1 at [53]; Reid at [55].

23 As the Minister submits, it follows from this that nothing therefore required the Tribunal to apply the tolerance principle when addressing each of the considerations set out in the Direction, nor to make explicit reference to that principle in relation to each consideration so as to show that the principle was being applied. In this regard it is well-established that the Tribunal is not required to articulate every detail of its consideration of the weighing process: Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 188; 295 FCR 210 at [36] (Burley, Thomas and Abraham JJ), referring to Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45] (Derrington J, Greenwood and Logan JJ agreeing).

24 In any event, the Minister is correct to submit that it is apparent on the basis of the Tribunal’s reasons that it did have regard to the tolerance principle: see at [21] where the Tribunal extracted the principle and the other principles in cl 5.2 of the Direction as principles that “provide a framework to approach decision making”, and in its conclusion at [156] where it stated that the applicant had “been in Australia for over 57 years, arriving when he was 4 years of age, and Australia may afford him a higher level of tolerance of criminal conduct”.

25 Particulars (a) to (c) of the applicant’s ground 1 must therefore fail. The applicant’s submissions amount to an invitation for the court to embark impermissibly on a merits review of the findings of the Tribunal in relation to this aspect of the matter.

Past abuse as part of the applicant’s ties to Australia

26 Particular (d) of ground 1 is, in effect, a complaint that the Tribunal had an obligation to consider what the applicant described as his “traumatic ties” to Australia. The applicant submits that the phrase “ties to Australia” directs attention generally to all the ways in which he engaged with Australia — and a critical and formative way in which he did so was that as a permanent resident child, who was owed respect and protection in and by the Australian community, he was failed and abused, and this caused him lasting trauma. The applicant submits that this was part of his engagement with Australia — that close associates within the Australian community failed and damaged him seriously, and this needed to be considered and weighed by the Tribunal, but was not (at [91]–[110] of the Tribunal’s reasons).

27 A further negative tie, the applicant submits, is his injury here as a truck driver. The applicant contends that had the Tribunal considered this aspect of his history (being assaulted, traumatised and injured in Australia) in the course of assessing the “strength, nature and duration” of his ties to Australia, the Tribunal may have concluded that the damage he had suffered meant that Australia owed him some additional consideration. Indeed, the applicant submits that the Tribunal may have concluded that the strength, nature and duration of his ties to Australia weighed not “heavily” (at [110] of the Tribunal’s reasons), but “very heavily” in favour of revoking the cancellation of his visa.

28 The applicant submits that this possible difference in the weight to be attached to this consideration may have affected the Tribunal’s decision and that it was therefore a material error for the Tribunal not to have taken this aspect of matters into consideration.

29 There are, however, two obvious difficulties with this complaint. The first, as the Minister points out, is that the Tribunal is only required to consider claims which are either the subject of substantial, clearly articulated argument relying upon established facts or which otherwise clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; 144 FCR 1 at [55], [68] (Black CJ, French and Selway JJ) (NABE), referring to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 73 ALD 321 at [24] (Gummow and Callinan JJ); see also Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ). Further, a finding that a claim clearly emerges from the materials is not to be made lightly, and it will not be enough if it can only be said that a claim might emerge from the materials: NABE at [68]. It is also the case, as the Minister submits, that a finding that an unarticulated claim clearly emerges from the materials is more likely to be made in circumstances where an applicant is self-represented before the Tribunal. The manner in which an applicant who is represented before the Tribunal presents his or her application before it affects how the Tribunal is expected to review the application: CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [74]–[75] (Thawley J).

30 The fundamental point, as the Minister submits, is that on judicial review a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2023] HCA 71; 216 CLR 473 at [1] (Gleeson CJ).

31 The difficulty here is that the applicant, who was legally represented before the Tribunal, did not contend that the fact of his sexual abuse or driving injury were traumatic ties that needed to be considered as part of the “strength, nature and duration” of his ties to Australia. Indeed, as the Minister submits, the only contention made about either of those matters was in relation to sexual abuse, which was said to be “linked” to the applicant’s offending: see the applicant’s statement of facts, issues and contentions in the Tribunal at [25]. The Minister is therefore correct to submit that there is no basis to conclude that the applicant made a substantial, clearly articulated argument of the kind now advanced, or that the issues clearly emerged before the Tribunal.

32 The second difficulty with the applicant’s submission in this regard is that I accept that the applicant has not established that the Tribunal in fact failed to consider his negative ties to Australia: see, on the question of onus, BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). I accept that the Tribunal’s reasons make it plain that it was conscious both of the sexual abuse the applicant had suffered, and his injury: at [4]–[5], [57], [70], [75], [84], [94].

33 As the Minister submits, the appropriate inference to draw is simply that the Tribunal, having noted those matters, considered them when considering the strength, nature and duration of the applicant’s ties to Australia. The Tribunal did not, however, consider them to be ties attracting any real weight in its assessment and determined that they did not necessitate explicit mention: see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [33]–[34] (Katzmann, Griffiths and Wigney JJ).

34 Particular (d) of the applicant’s ground 1 must also fail.

Absorbed person ties to Australia

35 The applicant accepts that particular (e) of ground 1 is effectively an extension of particulars (a) to (c) of ground 1; namely, the proper application of the tolerance principle. The applicant submits that squarely arising on the evidence and submissions before the Tribunal was the fact that, having lived in Australia for 55 years since he was four years old, he had really become a part of the Australian community rather than any part of the community in the United Kingdom. The applicant contends that the Tribunal did not properly consider this issue. The fact that the applicant was a person whose history was such that he may have had an “absorbed person visa” was emphasised in support of this submission.

36 I do not accept that there is any difficulty with the Tribunal’s reasons in this regard. Indeed there is force in the Minister’s submission that particular (e) of ground 1 simply invites the court, impermissibly, to find that the Tribunal should have made a particular finding of fact. I accept the Minister’s submission that the Tribunal’s reasons make it clear that it was aware both of the applicant’s long presence in Australia, and the absence of familial and social ties to the United Kingdom (at [104], [143]). The way in which the Tribunal gave expression to these matters was a matter for it.

37 Nor is the conclusion affected in any way by the “absorbed person visa” point the applicant now makes. I accept the Minister’s submission that the underlying fact in this regard was properly a matter for the Tribunal to determine, and it was not advanced by his legal representatives in the Tribunal. It is not, in any event, a mandatory relevant consideration when making non-revocation decision in respect of a transitional (permanent) visa: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [129] (Heydon and Crennan JJ, Gleeson CJ agreeing); Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 428 at [56]–[57] (Yates J).

38 Particular (e) of the applicant’s ground 1 must also fail.

Whether there was an unacceptable risk of reoffending

39 The applicant accepts that particular (f) of ground 1 is also something of a corollary of particulars (a) to (c) of ground 1. The point is, in substance, that because Australian law permits people who have been convicted of serious crimes to resume membership of the community once they have served their time in prison, some level of tolerance ought to be extended to the applicant in the same circumstances, even though he is not a citizen. This, it is said, should have been taken into account when the Tribunal considered whether the applicant posed an unacceptable risk.

40 The point is without foundation and in oral submissions counsel for the applicant came close to abandoning it, confining himself to the applicant’s written submissions. Proceeding on the basis that it is pressed, however, I reject the submission. Once again, in making this submission the applicant effectively invites the court to make findings of fact that were properly matters for the Tribunal. I also accept the Minister’s submission that the subject matter of this ground was not a contention advanced before the Tribunal. As the Minister submits, the Tribunal was required to comply with the Direction, not State sentencing laws or claimed intentions of State Parliaments relating to citizens. Under the Direction, it was open to the Tribunal to find that the applicant’s past offending was of such a nature that any risk of that offending being repeated was “unacceptable” (at cl 8.1.2(1)). The Tribunal made that finding and, as the Minister submits, the fact that it made that finding was entirely a matter for it. No jurisdictional error is disclosed and particular (f) of the applicant’s ground 1 must also fail.

Risk to people in the United Kingdom

41 Counsel for the applicant also came close to abandoning particular (g) at the hearing. The point advanced by the applicant, albeit weakly, is that the Tribunal failed to consider a matter that squarely arose on the evidence, being whether the risk of harm he posed to the Australian community might be less than the risk he poses to the United Kingdom. As the Minister submits, although this point is framed in the amended application in terms of an issue squarely arising, the applicant’s submissions appear to assert that this matter is more in the nature of a mandatory relevant consideration, claiming that the comparative analysis is “made relevant” because of s 4 of the Act, which is reflected in the Direction (at cl 5.1(1)).

42 The first problem with the point, as the Minister submits, is that to the extent that this particular frames the comparative analysis as a matter squarely arising before the Tribunal, the applicant did not advance any contention or evidence before the Tribunal to suggest that the risk posed by him in the United Kingdom would be greater than in Australia and that the Tribunal should conduct some kind of comparative risk exercise. As I have said, and in any event, the manner in which the Tribunal chose to assess risk was, subject to the stipulations in the Direction, a matter for it. The Minister refers, by way of example, to RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 at [71] (Feutrill J), but see Ayoub v Minister for Immigration & Border Protection [2015] FCAFC 83; 231 FCR 513 at [44] (Flick, Griffiths and Perry JJ) and Moana v Minister for Immigration & Border Protection [2015] FCAFC 54; 230 FCR 367 at [71] (Rangiah J, North J agreeing).

43 Further, and as the Minister also submits, to the extent that this particular contends that the Tribunal was required, as a mandatory relevant consideration, to conduct some sort of comparative analysis, it must also fail. Subsection 4(1) of the Act states that the object of the Act is to “regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. Subclause 5.1(1) of the Direction reiterates that object in its Preamble. The Minister is correct in his contention that nothing in either of those provisions (or the Act or the Direction more broadly) mandates that a decision-maker under s 501CA(4) of the Act engage in some national interest assessment, let alone that part of such an assessment entails a comparative risk analysis between the risk posed by a non-citizen in Australia and the risk that he or she might pose in his or her country of origin. I accept the Minister’s submission that to divine such a requirement from s 4 of the Act or cl 5.1(1) of the Direction would be entirely inconsistent with those provisions of the Act which do provide for a national interest assessment to be made (by the Minister, personally) when refusing or cancelling a visa.

44 Particular (g) of the applicant’s ground 1 must also fail, and so ground 1 fails.

GROUND 2: UNREASONABLENESS

45 By ground 2 the applicant claims that the Tribunal’s decision was legally unreasonable. It is said that the statutory context of the applicant’s situation was a life-changing decision. The applicant submits that in making the decision the Tribunal knew that if it decided to affirm the delegate’s decision to not revoke the original mandatory cancellation decision, there would necessarily be considerable suffering and hardship for the applicant and his family. This context, it is said, informed the bounds of legal unreasonableness.

46 The applicant submits that legal unreasonableness in making a finding or decision may be shown if there is a finding lacking a logically probative basis, or there are not intelligible reasons, but that there may also be legal unreasonableness even if a finding is not bizarre, referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [67]–[68] (Hayne, Kiefel and Bell JJ) (Li) and also Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [37]–[40] (Gummow ACJ and Kiefel J), [130]–[131] (Crennan and Bell JJ).

47 In support of that argument the applicant mentions various findings the Tribunal made which might be said to be in his favour and submits that, acting reasonably, the Tribunal could not possibly have made the decision that it did. These factors were identified by the applicant in his written submissions as follows:

(a) the fact that the applicant was one of those “non-citizens who have lived in the Australian community for most of their life, or from a very young age”: at [3] and [94] (the applicant means [104]), the applicant having cited the Direction at cl 5.2(6);

(b) the applicant’s age, being nearly 60 at the time of the Tribunal’s decision: at [1], [3], [94] (the applicant means [104]) and [140];

(c) the applicant’s work and positive contributions to the Australian community: at [4] and [104];

(d) the applicant having suffered serious “abuse as a 12-year-old child from a teacher who was a friend of the family, and attributes his subsequent drug use and criminal history to this abuse”: at [5];

(e) the applicant’s injuries and problems with his health including serious problems with his heart, liver, and brain injuries arising in part from assault, as well as depression and anxiety with a history of attempted self-harm: at [76]–[82] and [130]–[132] (the applicant means [140]–[142]);

(f) the applicant’s “significant rehabilitation”, beyond the expectations of the Judge who sentenced him on his conviction for manslaughter in 2017: at [64]–[75];

(g) the applicant’s relationship with his partner: at [86]–[87] (the applicant means [96]–[97]), [113] and [157];

(h) the applicant’s close and supportive ties with his children and other members of his immediate and extended family: at [93]–[103], [105]–[126] and [158];

(i) Australia’s national interest under s 4 of the Act, engaged by reason of Australia’s commitment to supporting the family unit under art 23 of the International Covenant on Civil and Political Rights: at [137] and [150]–[155]; and

(j) the extent of impediments to the applicant if he is removed from Australia, including his not having lived in the United Kingdom since the age of four, 55 years ago, and having no contacts or supports there, and the likelihood of permanent separation from his partner and other family members: at [143]–[146] and [157].

48 The applicant submits that the following were additional relevant factors in favour of revoking the cancellation of his visa:

(a) the fact that after 55 years living in Australia since the age of four years, the applicant is “really a part of the Australian community rather than part of any community in the United Kingdom”; and

(b) whether the risk of harm posed by the applicant to members of the Australian community might be less than the risk he may pose, without his family or other supportive factors, to people in the United Kingdom.

49 It is the applicant’s position, in light of the above-listed matters, that the conclusion of the Tribunal that there was not another reason to revoke the cancellation was “beyond the balance of what was legally reasonable”.

50 Accepting, for the sake of the argument, that the matter can be analysed through the prism of unreasonableness (but see the discussion of the revocation power in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; 295 FCR 315 at [3] (Perry J), [82]–[97] (O’Sullivan J)), I accept the Minister’s submissions that by this ground the applicant simply invites impermissible merits review. The decision the Tribunal made did not lack an “evident and intelligible justification”: see Li at [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ). The Minister is correct to submit that disagreement, even emphatic disagreement, with a decision is insufficient to disclose legal unreasonableness: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [40] (Gleeson CJ and McHugh J).

51 As the Minister submits, just because there were a number of matters in the applicant’s favour in the Tribunal’s decision does not mean that the Tribunal’s decision was legally unreasonable: see, for example, Tuberi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1029 at [36] (Steward J). I accept that the Tribunal’s reasons make the justification for its decision evident and intelligible. That is, that it was concerned about the seriousness of the applicant’s past offending, the unacceptable risk of violent reoffending that he posed, and the deemed expectations of the Australian community. As the Minister submits, perhaps another decision-maker might have given less weight to those matters and greater weight to the matters the applicant emphasises under this ground. This is not, however, the standard by which legal reasonableness is to be assessed. Ground 2 therefore fails also.

conclusion

52 Each ground having failed, the amended originating application must be dismissed with costs.

Associate:

Dated:    5 June 2026