Federal Court of Australia

Keyte v Minister for Immigration and Citizenship [2026] FCA 745

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Originating Application dated 7 April 2026 is dismissed.

2.    The applicant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    The applicant applies for judicial review, pursuant to s 476A of the Migration Act 1958 (Cth), of the decision of the Administrative Review Tribunal made on 30 October 2025, whereby it affirmed a decision of the Minister’s delegate not to revoke the mandatory cancellation of his visa pursuant to s 501CA(4) of the Act (TD).

2    The applicant is a citizen of New Zealand. On 18 June 2014, he was convicted and sentenced in the County Court of Victoria to a term of imprisonment of 16 months for the offence of attempting to pervert the course of justice. In consequence, his visa was mandatorily cancelled pursuant to s 501(3A) of the Act on 9 August 2024.

3    The applicant made representations about the revocation of his visa. On 7 August 2025, the Minister’s delegate determined not to revoke the cancellation. On 14 August 2025, he applied to the Tribunal to review that decision.

4    By an Amended Originating Application for Review the applicant sets out three grounds of jurisdictional error. In oral submissions only two matters were pressed. First, whether the Tribunal failed to consider a substantial and clearly articulated component of his representation to the effect that, despite his criminal offending, he sought tolerance based on the longevity of his residence in Australia from a very young age as a matter weighing against the weight accorded to the deemed expectations of the Australian community pursuant to cl 8.5 of Ministerial Direction 110. Second, whether the Tribunal correctly addressed the relative weight to be given to the deemed expectations, when read with cl 5.2(6) of the Direction.

5    The applicant was born in New Zealand on 24 July 1984. In December 1988, he arrived in Australia then aged four years and has resided in Australia ever since. His criminal history is relatively significant; including convictions for domestic violence against two of his partners, persistent contravention of family violence safety notices, drug trafficking, destruction of property and attempting to pervert the course of justice arising out of a former partner’s retraction of her complaint of assault by the applicant. The applicant prevailed upon her do so. During his residency he has engaged in paid employment and thereby contributed to the community. He has two minor children; a son and a daughter. They do not reside with him and he has no contact with them in accordance with family intervention orders and the wishes of their mother.

6    The applicant’s first argument relies on his representation to the Minister dated 21 January 2025, prepared and submitted by his solicitors. The representation is divided into alphabetically ordered sections. Section C contains a broad summary of the reasons why the cancellation should be revoked, including because of the applicant’s length of residence in Australia. Section D addressed the Direction Principles and is limited to:

D.1     Pursuant to paragraph 5.2(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.

D.2     The applicant has resided in Australia on a continual basis from the age of 4 (from a very young age) being 36 years of his 40 years (most of their life). Accordingly, the decision maker has discretion to ‘afford a higher level of tolerance criminal or other serious conduct’ in this case.

7    Section H addressed the expectations of the Australian community and commences with an extract from Puni v Minister for Home Affairs [2019] AATA 3943, where a Senior Member observed:

The community's underlying expectation of compliance with the law is tempered with a degree of tolerance and acceptance of some risk from the conduct of non-citizens, depending on its seriousness. The community also generally expects that people will be given an opportunity to realign their behaviour with expected social norms.

8    From there the representation argued:

H.2     The Applicant submits he is already realigning his behaviour through treatment and rehabilitation while in detention (as a continuation of these activities while incarcerated) to ensure he stays within expected social norms. Prior to visa cancellation, as a holder of Class TY Subclass 444 Special Category (Temporary) for over approximately 35 years, prior to his sentencing he had never before been warned or been subject to or garnered the interest of Home Affairs regarding adverse visa compliance.

H.3     The Applicant intends to return to the community, and such has –

•    arranged to live at his parent’s house upon his release from detention which is regionally located;

•    obtained an offer of employment on a full-time basis; and

•    is arranging suitable access to his children.

9    On the second submission the issue is how the Tribunal addressed the principle at cl 5.2(6) when it found in accordance with cl 8.5 that the applicant’s offending met the criteria for family violence offences as well as serious crimes against women and, as such, this factor weighed strongly against revocation: TD [150]-[151]. The applicant’s core argument is that having invoked tolerance as a relevant consideration, the Tribunal was obliged to apply cl 5.2(6) in determining the relative weight “to attribute to the primary consideration of the expectations of the Australian community for the purposes of cl 8.5 of the Direction”.

10    For the following reasons, I reject the applicant’s contentions.

How did the Tribunal proceed?

11    The Tribunal proceeded sequentially through Direction 110. Relevantly for present purposes the following should be noted. The fact of the making of the applicant’s representation is recorded at TD [3]. At TD [7]-[12] the applicant’s long residence in Australia from age four is stated, including his employment and medical history. The various findings of background facts in these paragraphs is consistent with the paragraphs in the applicant’s representation as emphasised in his submissions upon this application.

12    It should be further noted that the Minister’s Statement of Facts, Issues and Contentions in the Tribunal (when addressing cl 5.2(6) of the Direction) acknowledged the fact of the applicant’s residence from a young age, but did not accept that it operated to displace the community expectation consideration at cl 8.5 because of “the serious, recidivist nature of the Applicant’s offending, which includes multiple acts of family violence”.

13    At TD [48] cl 5.2 of the Direction is set out with the observation that the Senior Member had considered the principles in the conduct of the review. Although there is no further explicit reference to cl 5.2(6), at TD [115] the Tribunal found:

The applicant arrived in Australia when he was only four years old and has lived here for 36 years. As he stated at the hearing, he considers, understandably, that he is, in every aspect, Australian. Having arrived as a young child and having spent the majority of his life in Australia, I have taken this into account in my consideration. I have also taken into account that his offending only started many years after his arrival in Australia. Weight must also be given to the positive contributing to the community the applicant has done, in particular his voluntary work which Mr Tatchell discussed at the hearing and detailed in his statements, and the work both paid and voluntary that the applicant did for his parents’ polo club, as well as his volunteer work for the motor-cross club, and as a mentor. These factors all weigh in the applicant’s favour. I also wish to acknowledge the applicant’s statement at the hearing that the sexual assault he was victim to at boarding school was done to him in Australia.

14    The Tribunal gave extensive consideration to the best interests of the applicant’s minor children at TD [118]-[140] to find that they weighed moderately in favour of revocation. There is no complaint about that reasoning or those findings.

15    The Tribunal addressed the expectations of the Australian community at TD [141]-[151], which findings are central to this application:

141.     Paragraphs 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 and breached this expectation, or where there is an unacceptable risk that they will breach it, the Australian community expects as a norm that the Government will not allow such non-citizens to remain in Australia.

142.     Paragraph 8.5(2) further provides that it may be appropriate to refuse the visa of such a person because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa.

143.     This paragraph in particular details that acts of family violence, forced marriage, commission of serious crimes against women, children or other vulnerable members of the community, against government representatives, human trafficking or worker exploitation should be considered particularly seriously.

144.     Paragraph 8.5(3) indicates that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

145.     Paragraph 8.5(4) specifies that 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.

146.     I have considered the principles expressed in paragraph 5.2 of the Direction within which the task of deciding whether to revoke the cancellation of a visa pursuant to s 501CA should be undertaken.

147.     I understand that the expectations of the Australian community are to be determined by reference to Direction 110 itself, not an independent assessment conducted by the Tribunal, and have had regard to caselaw which supports this approach. I accept that this consideration requires the Tribunal to proceed on the basis that the views of the Australian Government, as set out, are the relevant norm described as the expectations of the Australian community, and not to attempt to infer what the expectations of the Australian community would be in this particular case. To make my own assessment of community expectations, or to give this factor weight in favour of granting the visa is impermissible under the structure of the Direction.

148.     The Respondent submits that ‘in light of the serious, recidivist nature of the Applicant's offending, which includes multiple acts of family violence, the Australian community expects the Australian Government to cancel the Applicant's visa.’

149.     It was submitted on the applicant’s behalf by his former representative that the applicant was realigning his behaviour through treatment and rehabilitation, and prior to cancellation had held his visa for 35 years without any warning or having come to the attention of the Department.

150.     In this case, I accept that the applicant’s offending can be characterised as offences for which he has been convicted of family violence offences as well as serious crimes against women, as specified in 8.5(2)(a) and (c).

151.     Having had regard to the Direction and the caselaw, I find that this factor weighs strongly against revocation.

16    The Tribunal proceeded to consider each other relevant clause of the Direction before turning to the overall conclusions at TD [171]-[178]. The Tribunal understood, conformably with CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35] that it was obliged to apply an evaluative assessment by weighing and balancing the various relevant considerations in the Direction. At TD [178] the Tribunal concluded:

Applying the principles in CRNL, I have decided to give great weight to the primary consideration of protection of the Australian community and the offending constituting family violence. These factors as well as the expectations of the Australian community weigh against revocation. Despite the significance of the best interests of the children here and the applicant’s ties to the Australian community and other considerations weighing in favour of revocation, they do not displace these primary factors. In this case they clearly demonstrate that the revocation should not be set aside for the reasons above.

The review grounds and the Minister’s response

17    The gravamen of the complaint as expressed in the amended grounds of review is that the Tribunal in the assessment of the relative weight to afford to the expectations of the Australian community, failed to bring to mind or engage in an active intellectual consideration of the relative weight to be afforded to that expectation as set forth in the representation and by application of cl 5.2(6) of the Direction. In oral submissions, his counsel Mr Murano, emphasised that the applicant’s representation sought tolerance pursuant to cl 5.2(6) based on the length of his residence in Australia together with his personal circumstances – notably his minor children, his schooling and work history. As much may be accepted and, as noted, was not disputed by the Minister. Thus, in the circumstances of this case, the Tribunal was “required” to consider the representation and apply cl 5.2(6) of the Direction in its determination of “what relative weight” to attribute to the expectations of the Australian community pursuant to cl 8.5 of the Direction.

18    The submission continued that when the Tribunal considered cl 8.5 of the Direction at TD [141]-[151] it failed to engage in any active intellectual consideration of the applicant’s representation and cl 5.2(6) of the Direction as required by Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [24]-[26], Kiefel CJ, Keane, Gordon and Steward JJ. Further, the Tribunal was obliged to expose why the expectations of the Australian community weighed strongly against revocation where it accepted that the tolerance principle at cl 5.2(6) applied. As to the reasoning at TD [149] (and the reference therein to a component of the applicant’s representation), the submission is that it fails to reveal how the Tribunal assessed that matter as bearing upon the weight ultimately attributed to the expectations of the Australian community and/or failed to understand that this representation was “plainly directed” to another consideration being the limited timeframe within which the applicant committed offences when balanced against his subsequent treatment and rehabilitation.

19    Overall, the submission is that the reasons cannot be read as opening for inference that the Tribunal made findings or drew conclusions about the applicant’s representation and cl 5.2(6) of the Direction where those matters are not mentioned in the reasons. Further, that it is not open to imply or infer “critical findings of fact” that are not expressed in reasons. It is also submitted that there is “a patent gap” at TD [141]-[151] as to why the expectations of the Australian community weighed strongly against revocation having regard to the applicant’s representation and cl 5.2(6) of the Direction.

20    In contrast, the Minister submits that the applicant’s representation was expressed in general terms – it was not specifically directed as to how the Tribunal ought to weigh and assess the expectations of the Australian community. When the reasons are considered in their entirety, the Tribunal accepted the applicant’s long-standing residence in Australia as a relevant consideration. The Tribunal set out each of the cl 5.2 principles at TD [48] and expressly stated they had been considered at TD [146]. In the entirety of the reasons, it is clear that the Tribunal understood the essential facts conveyed by the applicant’s representation and took them into account. The Tribunal was not obliged to consider the principle at cl 5.2(6) mechanistically and the weight to be attributed to it was a matter for the Tribunal: Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 16; (2024) 302 FCR 273 at [56], O’Bryan, Abraham and Shariff JJ.

21    The Minister further submits that the applicant’s relative weight submission should not be accepted. Weight is not to be approached by focusing only on the Tribunal’s reasoning when it dealt with the expectations of the Australian community at TD [141]-[151]. Rather, relative weight is to be understood as context specific and the Tribunal was not required to reduce or discount the weight given to the expectations of the Australian community by application of the principle at cl 5.2(6): RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [62]-[81], Horan J; Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 at [97], [108], Beach J. What the Tribunal did, considering the reasons in their entirety, was to take into account the cl 5.2(6) principle when considering the relative weight that it gave to the expectations of the Australian community balanced against other relevant considerations.

Resolution

22    I address first the failure to engage with the representation ground. Plaintiff M1 holds that the decision-maker “must read, identify, understand and evaluate the representations” ([24]), though the requirement is context specific as stated at [25]: the “nature, form and content of the representations” and the “length, clarity and degree of relevance of the representations” are variables that determine the content of the obligation.

23    Contrary to the applicant’s submissions, the reference in the representation to tolerance was limited in section D to cl 5.2(6) that operated in the applicant’s case to afford a higher level of tolerance to his criminal behaviour by reason of the length of his residence. And when this point was elaborated upon in section H, which specifically addressed the expectations of the Australian community as a relevant primary consideration, the applicant’s contention focused on his rehabilitation and the prospects of a successful return to the community upon release from his term of imprisonment. The representation did not expressly assert that the tolerance principle should be applied in the applicant’s favour as relevant to other considerations that may then be weighed to offset the weight that may be accorded to the expectations of the Australian community as mandated by cl 8.5.

24    The Tribunal addressed the representation in this way at TD [115]-[116], when considering the strength, nature and duration of the applicant’s ties to Australia, and found that his long residence together with his family ties and his positive contribution to the community each weighed in his favour – ultimately “strongly in favour of revocation”: TD [117].

25    Thus, there was no failure by the Tribunal to evaluate the representation that was made: the applicant’s argument as now advanced was not “clearly articulated” nor did it “clearly arise on the materials before [the Tribunal]”: Plaintiff M1 at [25].

26    Dealing next with the second contention, the weighing of Principle 5.2(6) of the Direction with the expectations of the Australian community was addressed by the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454, Flick J (dissenting), Charlesworth and Stewart JJ. That case concerned the similarly worded clauses 6.3(5) (tolerance) and 11.3 (expectations of the Australian community) of Direction 65. Pausing there, it should be recalled that the requirement of cl 6 of the Direction is that a decision-maker “informed by” the principles in cl 5.2, must take into account the primary considerations in cl 8 and the other considerations in cl 9.

27    Charlesworth J at [76]-[77] stated (noting that the reference to cl 8.4 now corresponds with cl 7.2 of Direction 110):

The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.

28    Stewart J reasoned similarly at [105] observing: “It is a question of weight, not prescription as to outcome”.

29    The applicant relies on Kelly in support of the submission that jurisdictional error may arise if the decision-maker fails to engage in active intellectual consideration of the relative weight to be given to the deemed expectations of the Australian community. With respect, Beach J did not so hold in that case. That case concerned review of the personal decision of the Minister not to revoke a visa pursuant to s 501CA(4) of the Act where the Minister was not obliged to comply with the relevant Direction but nonetheless purported to do so. His Honour at [97] and [108] reasoned conformably with FYBR that the assessment of countervailing factors from a person’s circumstances are to be considered when deciding the relative weight to be given to community expectations. The error that his Honour found was made out is that the Minister gave no consideration to what weight he would give to the deemed expectations having regard to the applicant’s specific circumstances.

30    More recently, in RCLN one ground of challenge considered by Horan J concerned asserted error by the Tribunal in denying procedural fairness by failing to address a moderation submission by reason of length of residence when assessing the relative weight to be given to the expectations of the Australian community pursuant to Direction 99. The ground failed (as did all other grounds).

31    His Honour undertook an extensive analysis of the tolerance/weight ground at [46]-[81] and the relationship to the expectations of the Australian community as the primary consideration. Applying the reasoning of Charlesworth J in FYBR, his Honour relevantly stated in part at [56] and [57]:

[T]he decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.

…

On the proper construction of para 8.5 of the Direction, the matters on which the applicant relies concerning his ties to Australia were not directly relevant to this primary consideration and were not capable of altering the Tribunal’s finding about the expectations of the Australian community. Rather, those matters were relevant to other considerations which might potentially offset the heavy weight that was accorded to Primary Consideration 5. In this way, the matters specific to the applicant’s personal circumstances were relevant to the relative weight to be accorded to each of the primary and other considerations, including Primary Consideration 5.

32    And then relevantly for present purposes at [62] his Honour observed:

However, the weight to be accorded to each of the primary and other considerations was a matter for the Tribunal. There is nothing to suggest that the Tribunal failed to perform the task of considering and balancing the competing considerations when determining whether there was another reason to revoke the cancellation decision. The Tribunal was not required to address the applicant’s tolerance submission in the context of considering what weight should be given to the expectations of the Australian community under Primary Consideration 5, as opposed to the relative weight to be given to the various primary and other considerations in the ultimate balancing process. Accordingly, no inference arises that the applicant’s submission was overlooked by the Tribunal. The Tribunal’s finding that the expectations of the Australian community (as articulated in para 8.5 of the Direction) weighed “extremely heavily against revocation” was not about the relative weight to be accorded to that consideration in the balancing process, and did not preclude other considerations from being weighed in favour of revocation, whether slightly or heavily. The matters to which the applicant’s submission was directed were directly addressed in the context of other primary considerations, and were thereby taken into account in the “final balancing exercise” that was performed by the Tribunal at paras [297]-[305] of the Reasons.

33    As correctly submitted by Mr Barrington for the Minister, the analysis of Horan J (with which I respectfully agree) is a complete answer to this ground.

34    The applicant’s long residence in Australia and the tolerance that may thereby be afforded to his criminal and other serious conduct by operation of cl 5.2(6) and how this matter was relevant to the weight to be given to considerations other than the expectations of the Australian community was a matter for the Tribunal. As was whether these considerations operated in the ultimate analysis to offset the weight given to the expectations of the Australian community. The Direction required no more than (informed by the principles in cl 5.2) that be taken into account. That is how the Tribunal proceeded. When the reasons are considered in their entirety the Tribunal made findings in the applicant’s favour about his length of residence at TD [7]-[12], and expressly stated that each of the principles had been considered at TD [48]. The Tribunal then dealt with the way in which the tolerance submission had been put in the representation at TD [115], concluded at TD [117] that the strength, nature and duration of his ties with Australia weighed strongly in favour of revocation and then, when specifically considering the expectations of the Australian community at TD [146], explicitly stated that the principles at cl 5.2 of the Direction had been taken into account. What counted against the applicant in the weighing assessment was his serious crimes against women and his history of family violence: TD [150]-[151]. It is these matters which the Tribunal evaluated and weighed (consistently with CRNL at [35]) to conclude at TD [178] that “despite the significance of… the applicant’s ties to the Australian community and other considerations weighing in favour of revocation” the expectations of the Australian community (as the primary consideration) was not displaced.

35    The Tribunal did consider the effect of the tolerance representation in the evaluative weighing assessment. So much is clear from TD [115], [146], [172] and [178]. The applicant’s various complaints of template formulaic reasoning devoid of active consideration are not made out on consideration of the whole of the reasons. The arguments mask an attempt to impose structural rigidity to the weighing process contrary to Reid at [56]:

We also agree with the Minister’s submission that the Tribunal was not bound to consider the “Tolerance Principle” in any particularly rigid way. As explained above, the “Tolerance Principle” is stated in cl 5.2 to be part of the “framework” within which decision-makers approach their task, and cl 6 directs that the mandatory considerations identified in cll 8 and 9 of Direction 90 must be taken into account as “informed by” the principles in cl 5.2. The weight to be attributed to the “Tolerance Principle” expressed in cl 5.2(4) of Direction 90 is a matter for the Tribunal in any given case, and it may be but one factor that informs the balancing exercise: FYBR at [75]-[77]. In the present case, as noted above, the Tribunal considered the “Tolerance Principle” and, as the Minister submitted, the Tribunal was not then bound to expressly refer to or revisit it as a consideration in the expression of its conclusions given that it had already taken that factor into account.

36    That is to say the applicant’s arguments seek to cast aside how the Tribunal proceeded by confining the consideration of the tolerance submission at TD [115] to the matters to be assessed at cl 8.3 of the Direction and then navigate to the central criticism that later the Tribunal failed to weigh this matter as an offset against the weight accorded to the primary consideration at cl 8.5: TD [141]-[151]. That approach ignores the structure of the entirety of the reasons and the obvious picking up of that consideration as a factor relevant to the relative weight that the Tribunal gave to the expectations of the Australian community at TD [146] and [172], [177] and [178].

37    I also accept the Minister’s submission that the applicant’s arguments invite impermissible analysis of the quality of the Tribunal’s evaluative reasoning: ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8], Mortimer, Colvin and O’Sullivan JJ.

38    As a result, the Amended Originating Application must be dismissed. Counsel agreed that there is no reason why costs do not follow the event.

39    The Court records its appreciation for the assistance of Mr Murano and Mr Fitzgerald acting as pro bono counsel for the applicant in the best traditions of the bar. Their arguments were focused and succinct.

Associate:

Dated:    15 June 2026