Federal Court of Australia

Korat v Minister for Immigration and Citizenship [2026] FCA 755

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed with costs.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

1    This is an application for judicial review of a decision of the second respondent, the Administrative Review Tribunal (Tribunal), made on 6 March 2026. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister), dated 28 February 2023, not to revoke the mandatory cancellation of the applicant’s Employer Nomination Scheme (subclass 186) (ENS) visa, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act).

2    What might ordinarily have been expected to involve a comparatively straightforward determination under s 501CA of the Act has, over time, assumed a labyrinthine procedural character. The present proceeding follows two earlier remittals and concerns the Tribunal’s third consideration of whether that cancellation should be revoked.

3    The applicant, Mr Sanjay Kulabhai Korat, is a citizen of India. He first arrived in Australia in 2009. He was granted an ENS visa and became a permanent resident of Australia. Following the convictions discussed below, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act.

4    There is no dispute that the applicant does not pass the character test for the purposes of s 501 of the Act. The question before the Tribunal was whether there existed “another reason”, within the meaning of s 501CA(4)(b)(ii), why the mandatory cancellation should be revoked. In answering that question, the Tribunal was required by s 499(2A) of the Act to comply with “Direction No 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 110).

5    The applicant advances three grounds of review. For the reasons that follow, no ground is established and the application must be dismissed, with costs.

B    BACKGROUND

6    Mr Korat was born in Gujarat, India on 17 June 1980. He and his wife arrived in Australia in April 2009 as holders of student visas. Their elder child was born in India in 2007, and their younger child was born in Australia in 2013.

7    The evidence before the Tribunal disclosed that, over time, the applicant developed significant problems with alcohol consumption. The applicant’s case before the Tribunal was that alcohol misuse became a substantial feature of his life during the period preceding the offending, which ultimately led to the cancellation of his visa.

8    Mr Korat’s relevant criminal history commenced in August 2018, when he was convicted of driving with a middle-range prescribed concentration of alcohol. In August 2020, he was convicted of a common assault offence involving family violence against his wife. In February 2021, he was convicted of the offence of using a carriage service for a hoax threat and was sentenced to two years’ gaol, to be released after 12 months upon entering a recognisance to be of good behaviour for three years. In April 2021, he was also convicted of a further common assault offence involving family violence and of contravening a prohibition or restriction contained in a domestic violence apprehended violence order.

9    The circumstances of the hoax threat offence were striking and serious. The sentencing court found that the applicant made a false report concerning the presence of an explosive device on Singapore Airlines flight SQ423 travelling from Mumbai to Singapore. The Republic of Singapore Air Force was forced to scramble two F-16 fighter jets for the airliner, carrying 263 passengers, 18 crew and members of the applicant’s family.

10    By reason of the sentence imposed for the hoax threat offence, the applicant had a substantial criminal record within the meaning of s 501(7)(c) of the Act and, on 24 March 2021, the applicant’s visa was mandatorily cancelled pursuant to s 501(3A).

C    PROCEDURAL HISTORY

11    In April 2021, Mr Korat made representations seeking revocation of the cancellation decision. After a delay, in February 2023, a delegate of the Minister decided not to revoke the cancellation. Mr Korat was notified of that decision in March 2023 and applied to the Administrative Appeals Tribunal for review.

12    The first Tribunal hearing took place in June 2023, and the Tribunal affirmed the delegate’s decision. Mr Korat sought judicial review, and after his application was dismissed at first instance, his appeal to the Full Court was allowed in May 2024. The Full Court quashed the Tribunal’s decision and directed that the application be determined according to law.

13    Following that remittal, the matter was heard again by the Tribunal (by then the Administrative Review Tribunal), in October 2024. On 1 November 2024, the Tribunal again affirmed the delegate’s decision.

14    That decision also became the subject of judicial review proceedings. In September 2025, by consent, the Court ordered that the matter be remitted again to the Tribunal.

15    Following the second remittal, the Tribunal conducted a further hearing in March this year. The Tribunal had before it the material submitted to the previous hearings, along with further material including recent reports concerning Mr Korat’s psychological condition, treatment, abstinence from alcohol, family circumstances, proposed employment and risk of future offending.

16    The Tribunal also heard oral evidence from the applicant, his wife, one of his children, a proposed employer and Dr Scally, a forensic psychologist.

17    The applicant’s case before the Tribunal was that he had achieved substantial rehabilitation, had remained abstinent from alcohol for an extended period, had developed insight into the causes of his offending, had engaged meaningfully with counselling and treatment programmes, and presented a low risk of future offending.

18    The Minister contended that the seriousness of the offending, including the family violence offending and the hoax threat offence, together with the need to protect the Australian community, outweighed the considerations relied upon by the applicant.

19    On 6 March 2026, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant’s visa.

20    It is that decision which is the subject of the present proceeding.

D    STATUTORY FRAMEWORK

21    The relevant statutory framework is well known and has been considered in a very large number of decisions of this Court, and also the Full Court and the High Court. It is unnecessary to set it out at length.

22    Where a visa has been cancelled under s 501(3A), s 501CA(4) confers a power to revoke the cancellation. Relevantly, that power may be exercised if the person has made representations in accordance with the statutory invitation and the decision-maker is satisfied either that the person passes the character test, or that there is “another reason why the original decision should be revoked”: s 501CA(4)(a), (b) of the Act.

23    As I have indicated, the only question before the Tribunal was whether there existed another reason why the cancellation decision should be revoked. In answering that question, it was required by s 499(2A) of the Act to comply with Direction 110 (which identifies a number of considerations relevant to the exercise of the revocation power). The grounds advanced by the applicant concern two of these considerations.

24    The first consideration is the protection of the Australian community. Relevantly, para 8.1.2(2) of Direction 110 provides:

8.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

…

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen re-offending; and

ii    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

25    The second consideration is family violence committed by the non-citizen. Paragraph 8.2 reflects the Government’s serious concern about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia and identifies matters relevant to the assessment of the seriousness of such conduct. It provides:

8.2    Family violence committed by the non-citizen

(1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2)    This consideration is relevant in circumstances where:

a)    a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b)    there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3)    In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

a)    the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

b)    the cumulative effect of repeated acts of family violence;

c)    rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

i.    the extent to which the person accepts responsibility for their family violence related conduct;

ii.    the extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse (particularly children);

iii.    efforts to address factors which contributed to their conduct; and

d)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.

E    THE GROUNDS OF REVIEW

26    It is now convenient to turn to the specifics of the applicant’s three grounds of review.

27    Ground One concerns the Tribunal’s assessment of the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. The applicant contends that the Tribunal misconstrued or misapplied para 8.1.2(2) by failing properly to engage with evidence bearing upon rehabilitation, abstinence from alcohol and the likelihood of future offending. As refined in reply, the applicant also contends that the Tribunal discounted that evidence because the rehabilitation had occurred in detention and had not been tested in the community, thereby imposing an evidentiary hurdle which, in circumstances where he remained in immigration detention, was incapable of meaningful satisfaction: T8.29–30; T10.4–11; T11.11–15.

28    Ground Two concerns the Tribunal’s assessment of family violence. The applicant contends that the Tribunal misconstrued or misapplied para 8.2(3) by failing properly to engage with evidence said to bear upon the seriousness of the family violence offending, including evidence concerning the circumstances of the offending, the absence of any increasing trend, rehabilitation, responsibility and insight.

29    Ground Three is expressed as a ground of legal unreasonableness and substantially overlaps with Grounds One and Two. In broad terms, the applicant contends that the Tribunal reasoned illogically or irrationally by discounting the most recent evidence of rehabilitation and low risk by reference to earlier reports, by treating the applicant’s rehabilitation in detention as insufficient because it had not been tested in the community, and by attributing disproportionate weight to the family violence consideration.

30    It is convenient to deal with Grounds One and Three together insofar as they concern rehabilitation, abstinence and future risk, and then to address Grounds Two and Three together to the extent they concern family violence. To the extent Ground Three requires separate consideration in an omnibus fashion as a legal unreasonableness ground, I will return to it after dealing with those more specific complaints.

E.1    Grounds One and Three

E.1.1    The applicant’s contentions

31    As I have noted, Ground One overlaps with Ground Three to the extent it alleges that the Tribunal’s reasoning on rehabilitation, abstinence from alcohol and future risk was irrational, illogical or legally unreasonable.

32    The applicant’s case is not that the Tribunal gave insufficient weight to favourable evidence. Properly understood, the contention is that the Tribunal failed to perform the evaluative task required by para 8.1.2(2)(b), because it did not give real consideration to the most recent and most probative evidence concerning the likelihood of future offending: originating application (OA) (at [13]); applicant’s submissions (AS) (at [24]–[34]).

33    The applicant relied particularly upon three reports which were before the Tribunal.

34    First, there was the report of registered psychologist Mr Causley. The report was prepared after a psychological assessment of the applicant and it assessed, among other things, the applicant as a low risk of future reoffending. It also expressly took into account the increased access to alcohol and decreased monitoring that would follow if the applicant were released into the community: application book (AB) (at 1118–1122).

35    Secondly, there was the most recent report of a counsellor, Mr Stojcic. He had provided family therapy and related counselling to the applicant and Mrs Korat. His report addressed matters including relapse prevention, family reintegration, domestic violence prevention and ongoing support systems and assessed the risk of further domestic violence or criminal behaviour as low: AB (at 1123–1140).

36    Thirdly, there was the report of forensic psychologist and clinical neuropsychologist Dr Scally. Her report considered the applicant’s mental health, characterised the offending as contextual and reactive, noted that the applicant’s pre-detention difficulties with sobriety occurred before the development of relapse prevention skills, and identified several controllable factors favouring continued abstinence in Australia: AB (at 1141–1162).

37    The applicant submits that this evidence was directly responsive to para 8.1.2(2)(b), which required the Tribunal to have regard to evidence concerning the risk of reoffending and rehabilitation achieved by the time of decision. It is said that the most recent material showed not merely participation in programmes, but meaningful change, insight, relapse-prevention planning and a current professional assessment of low risk.

38    The applicant further submits that the Tribunal’s reasoning demonstrates a tendency to discount those opinions by reference to earlier assessments of risk and earlier episodes of relapse. It is said that the Tribunal thereby elevated historical material over more recent evidence directed to the applicant’s present circumstances.

39    A particular focus of the oral argument was the Tribunal’s treatment of rehabilitation achieved while the applicant remained in detention. The applicant submitted that the Tribunal treated the fact that abstinence and rehabilitation had not been tested in the community as an effectively insurmountable hurdle. Counsel put the point by reference to the language in the Tribunal’s reasons (TR) (at [92], [94]), submitting that the applicant could not prove community-based rehabilitation while he remained in immigration detention: T8.29–30; T10.4–11; T11.11–15.

40    On the applicant’s argument this reasoning infects Ground Three as no amount of rehabilitation achieved in detention could ever be sufficient because it would always be capable of being dismissed as untested. It is said that the Tribunal’s conclusion was legally unreasonable because it simultaneously accepted substantial rehabilitation while treating the absence of community testing as preventing that rehabilitation from carrying meaningful weight.

E.1.2    Consideration

41    Fundamentally, the question is whether the Tribunal failed to consider the substance of the applicant’s representations, or otherwise misconstrued or misapplied para 8.1.2(2) of Direction 110. Needless to say, it is not whether this Court would have made the same predictive assessment of future risk.

42    The applicable principles may be stated shortly.

43    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, the plurality explained that the decision-maker must “read, identify, understand and evaluate” representations, but may then “sift them, attributing whatever weight or persuasive quality is thought appropriate”: (at 598 [24] per Kiefel CJ, Keane, Gordon and Steward JJ). Their Honours also cautioned that a reviewing court should not too readily infer jurisdictional error from the manner in which reasons deal with representations: (at 599 [26]).

44    That approach does not mean that important material may be ignored. If a decision-maker overlooks a substantial, clearly articulated argument or misunderstands material bearing upon the statutory task, jurisdictional error may be established: Plaintiff M1/2021 (at 600 [27]).

45    It is also accepted that a failure to comply with a mandatory aspect of Direction 110 may amount to jurisdictional error. That is the point made by the applicant by reference to CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228 and various other cases. However, acceptance of that proposition does not resolve the present grounds. The question remains whether the Tribunal failed to consider a mandatory consideration or failed to engage with it in substance. This is, of course, distinct from attributing less weight to favourable evidence.

46    The applicant also referred to Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 for the proposition that it is not enough for a Tribunal merely to recite a mandatory consideration. The Full Court in that case held that the Tribunal’s reasons did not show an active intellectual engagement with the question of general deterrence as it related to Mr Lafu’s circumstances: (at [49]). The vice was that the Tribunal had turned to the mandatory factor but had not identified whether, and if so how, that factor operated on the facts of the particular case: (at [50]–[54]). The applicant says the Tribunal did no more than recite, or at most summarise, parts of the recent reports and then proceed to a conclusion inconsistent with those reports without explaining why.

47    The applicant also sought to rely on various other cases such as Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47, to emphasise the Tribunal’s review function and its obligation to consider relevant material. I accept, at that level of generality, that the Tribunal was not confined to a narrow adversarial model and was required to determine the correct or preferable decision on the material before it. But those authorities do not alter the question for present purposes: whether the Tribunal understood and considered the substance of the case advanced on rehabilitation and future risk.

48    Finally, it is worth remarking that Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 does not assist the applicant in the way suggested during the course of argument. SZJSS concerned a protection visa decision and the weight given to letters. Ultimately, the High Court cautioned against a reviewing court substituting its own assessment of evidentiary material for that of the Tribunal. But it does not permit a Tribunal to ignore a substantial argument or critical evidence. The boundary is between ensuring that the Tribunal performed its task and undertaking that task again.

49    The difficulty confronting the applicant is that the Tribunal plainly understood the substance of the case advanced before it. The applicant’s submissions tended to proceed as if the Tribunal was required to engage separately with each passage of each report relied upon, and to explain why each discrete aspect of favourable evidence was not accepted as determinative. That is not the relevant legal standard.

50    Contrary to the applicant’s submissions, the Tribunal’s consideration of future risk was not confined to the concluding paragraphs: TR (at [91]–[96]). The Tribunal undertook a detailed review of the applicant’s alcohol misuse, treatment and rehabilitation history before turning specifically to the more recent reports relied upon by the applicant.

51    The Tribunal referred to Mr Causley’s report: TR (at [80]). It recorded that the applicant had demonstrated self-reflection, insight and ownership of past behaviour, and that Mr Causley assessed the applicant as a low risk of reoffending, noting abstinence from alcohol, engagement with professional supports and family, insight and remorse.

52    The Tribunal also referred to the updated report of Mr Stojcic dated 23 February 2026: TR (at [81]). It recorded that Mr Stojcic referred to the applicant’s “genuine commitment to personal change”, complete abstinence from alcohol and engagement in therapeutic interventions. It also recorded that the applicant and Mrs Korat had established safety protocols and support systems to prevent future domestic violence incidents, and that Mr Stojcic had outlined causal factors leading to alcohol abuse and domestic violence and the programmes undertaken to reduce the risk of reoffending.

53    The Tribunal further referenced Dr Scally’s report and oral evidence: TR (at [82]–[83]). It recorded her opinion that the offending occurred at the peak of the applicant’s alcohol dependence, that intoxication was a factor in each offence, that the applicant did not exhibit broader criminal or antisocial tendencies, and that his risk of general, violent and intimate partner violence recidivism was low.

54    The critical reasoning then appears at TR [91]–[96]. The Tribunal accepted that the applicant had gained better skills and coping mechanisms, and that the risk of reoffending would be significantly minimised if he did not consume alcohol. The Tribunal then identified the predictive question as whether the applicant would be able to abstain from alcohol if released into the community.

55    The Tribunal accepted that the applicant had engaged in meaningful rehabilitation, attended counselling and other programmes, and genuinely intended to avoid alcohol: TR (at [92]). The Tribunal went so far as to say that the applicant “may have done everything possible to reduce the risk of reoffending and avoid alcohol use”. It then said, however, that past rehabilitative attempts had not been successful and that the applicant’s ability to abstain and maintain rehabilitation “has not been tested”.

56    The Tribunal also accepted that the applicant genuinely wished to avoid alcohol and that he genuinely believed he had acquired the skills to do so: TR (at [94]). It nevertheless found that there was insufficient probative evidence to satisfy it that the present programmes would necessarily have greater efficacy in the community than programmes completed in the past.

57    The distinction between earlier medium-risk assessments and more recent low-risk assessments was also acknowledged by the Tribunal: TR (at [95]–[96]). It accepted that the risk may be low but concluded that the risk was real and not remote, and that, given the serious harm that could be caused if the applicant reoffended, the protection of the Australian community weighed heavily against revocation.

58    The applicant also argued that the recent reports were directed to the very concern which ultimately drove the Tribunal’s reasoning. Mr Causley expressly considered increased access to alcohol and decreased monitoring in the community. Mr Stojcic identified relapse-prevention and family reintegration structures. Dr Scally addressed the fact that earlier difficulty maintaining sobriety occurred before the development of relapse-prevention skills.

59    It would perhaps have been preferable for the Tribunal to have addressed those matters more directly when explaining its conclusion at TR [91]–[96]. The reasons could have said, in terms, why the Tribunal was not persuaded by the aspects of the reports directed specifically to community-based risk. But the reasons must be read fairly and as a whole: see Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 (at [55]).

60    This is not a case like Lafu where the Tribunal merely recited an abstract mandatory consideration and left the applicant to guess whether, and if so how, it applied to the facts. The Tribunal identified the central issue: the future risk if the applicant were released into the community. It summarised the recent reports and accepted that those reports were favourable in important respects. It then explained why it remained concerned, namely the applicant’s previous failure to maintain abstinence in the community, the controlled nature of detention, the likelihood of future stressors, and the fact that the low-risk assessments depended upon continued abstinence.

61    Nor is this a case where the Court should draw the inference that critical material was not considered because it was not mentioned. The reports were mentioned, and the central propositions for which they were relied upon were recognised. The real complaint is that some of the most favourable passages were not separately analysed. That is not enough to establish jurisdictional error where the reasons demonstrate that the Tribunal understood the substance of the representation and the competing material.

62    The Healthcare Australia records were relied upon as part of the evidence of sustained abstinence and treatment. The Tribunal accepted, in substance, that the applicant had been abstinent for a substantial period and had engaged in rehabilitation. No separate point arising from those records required distinct analysis once the Tribunal accepted those underlying matters.

63    The applicant’s detention point requires separate attention. There would be error if the Tribunal treated community testing as a necessary precondition to revocation, or as a precondition to giving rehabilitation meaningful weight. Obviously enough, a person in immigration detention cannot demonstrate sustained abstinence in ordinary community life unless first released. A decision-maker could not rationally make the absence of an impossible form of proof decisive.

64    However, that conclusion cannot be fairly drawn from the Tribunal’s reasons. The Tribunal did not say that rehabilitation achieved in detention was irrelevant. It did not say that detention-based abstinence could carry no weight. It accepted that rehabilitation had occurred, accepted that the applicant had done much to reduce the risk of reoffending, and accepted that the risk may be low.

65    The Tribunal used the absence of community testing as but one factor in a predictive assessment. That was permissible. The applicant’s own case was that alcohol misuse was the principal driver of the offending; it followed that the future maintenance of abstinence was central to the assessment of risk. In that context, the Tribunal was entitled to consider the conditions in which abstinence had been maintained and the difference between those conditions and ordinary community life.

66    The applicant also generally submitted that the Tribunal relied impermissibly on older material and earlier relapse history. I do not accept that characterisation. Earlier material did not become irrelevant merely because later reports were favourable. The applicant’s rehabilitation was a trajectory and his previous attempts, his relapse history, his treatment history, and his later progress were all part of the relevant factual matrix bearing on future risk.

67    It is simplistic to assert that the Tribunal ignored the recent evidence in favour of old evidence. It acknowledged the more recent low-risk assessments and accepted important aspects of them but remained unpersuaded that the risk was reduced to the extent contended for by the applicant, because those assessments depended upon continued abstinence and the Tribunal was not satisfied that abstinence would necessarily be maintained in the community.

68    In Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ explained that legal unreasonableness may be shown where a decision lacks an evident and intelligible justification. But the threshold is not met merely because a different conclusion was available.

69    The Tribunal’s reasoning had an intelligible justification. It accepted rehabilitation, accepted that risk may be low, but concluded that the risk remained real because abstinence was central, had not been tested in the community, and there had been previous unsuccessful attempts. That was not reasoning which offends logical thinking. Nor did it involve a failure to comply with para 8.1.2(2) of Direction 110.

70    Ground One and the relevant aspect of Ground Three (that is, insofar as the latter ground concerns rehabilitation, abstinence and future risk) are not established.

E.2    Grounds Two and Three

E.2.1    The applicant’s contentions

71    As I have noted, Ground Two concerns the Tribunal’s treatment of the family violence consideration in para 8.2 (and Ground Three overlaps with Ground Two to the extent the applicant submits that the Tribunal’s reasoning on family violence was irrational, illogical or legally unreasonable).

72    The applicant submits that para 8.2 required an assessment of the seriousness of the family violence engaged in by the applicant. Paragraph 8.2(1) states that the Government’s concern is proportionate to the seriousness of the family violence, and para 8.2(3) identifies factors relevant to that assessment, including frequency, any trend of increasing seriousness, the cumulative effect of repeated acts, rehabilitation, acceptance of responsibility, understanding of impact, and efforts to address contributing factors.

73    The Tribunal, it is said, failed to undertake that evaluative assessment. The applicant contends that the family violence offending was contextual, reactive or aberrational, occurred in a confined period, was related to alcohol misuse and mental health difficulties, and was not indicative of a broader pattern of violence: OA (at [14]); AS (at [35]–[40]).

74    In this regard, the applicant relies on Mr Stojcic’s report, which addressed family reintegration, domestic violence prevention, safety protocols, accountability, relationship functioning and low risk: AB (at 1123–1140). He also relies on the letter from “Lives Lived Well”, the report of Dr Scally, and the evidence concerning alcohol abstinence and therapeutic work: AB (at 1109–1110; 1158); AS (at [39]).

75    Orally, counsel submitted that the Tribunal did not engage with the confined nature of the family violence offending, the absence of any increasing seriousness, the evidence that the offending was aberrational, or the evidence of rehabilitation and relationship counselling: T23.1–25; T24.1–14.

76    The applicant also developed a related point concerning TR [104]. Here, the Tribunal quoted Patterson and Minister for Home Affairs (Migration) [2019] AATA 5175 which in turn quoted Mendoza and Minister for Immigration and Border Protection [2018] AATA 686, for the proposition that the Australian community has “zero tolerance” for domestic violence. The applicant submitted that this language is inconsistent with para 8.2 of Direction 110, which requires the concern to be proportionate to seriousness: T25.24–44.

E.2.2    Consideration

77    The live issue is whether the Tribunal considered the seriousness of the family violence proportionately, as para 8.2 required, or whether it treated the mere fact of family violence as sufficient to give the consideration heavy weight.

78    As with Ground One, the substance of the complaint advanced by the applicant requires careful identification. Although expressed as a misconstruction or misapplication of para 8.2, the applicant’s argument ultimately proceeds upon the footing that the Tribunal failed properly to engage with evidence bearing upon the seriousness of the family violence offending and the significance of subsequent rehabilitation.

79    The Tribunal’s reasons on this issue appear at TR [97]–[105]. There, it set out para 8.2(1), including the proportionality language. At TR [98]–[101], it dealt with the applicant’s earlier position that the family violence consideration was not relevant or was neutral and recorded that the applicant now conceded he had committed family violence offending.

80    Ultimately, the Tribunal accepted that the applicant had committed family violence offending: TR (at [102]). It then referred to evidence favourable to the applicant. It referred to Mrs Korat’s evidence that more than six years had passed, that she had witnessed a “huge change” in the applicant, and that he had engaged in supports and sessions. It accepted that Mrs Korat genuinely believed the applicant would not reoffend. It accepted that the applicant had completed some programmes and acknowledged his claim to be rehabilitated. It referred to Dr Scally’s evidence that the offending occurred due to intoxication and not inherent criminality, and that Dr Scally assessed the risk of family violence reoffending as low.

81    The Tribunal again accepted that the applicant had completed some programmes and acknowledged Mrs Korat’s support for revocation and evidence of reconciliation: TR (at [103]). It also referred to the adverse effect of the violence on Mrs Korat and the likely effect on the children if the conduct were repeated.

82    As mentioned above, the Tribunal quoted Patterson (at [60]), which in turn quoted Mendoza (at [48]): TR (at [104]). The relevant passage provides:

Legal authority also militates strongly against violence against women, especially in a domestic context. This Tribunal, in the matter of Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 has said that the Australian community has “zero tolerance” for violent offending against women and for domestic violence offending against anyone, and that such conduct is to be regarded as “unacceptable at any time – in any place – in any circumstances.” Similarly, this Tribunal has found that domestic violence is “fundamentally inconsistent with the standard of behaviour expected by the Australian community”.

83    The reference to “zero tolerance” is obviously explicable and justifiable as social commentary but its adoption in the present context is less than ideal. As was noted during argument, that passage from Mendoza appears to have been cited in a significant number of Tribunal decisions; indeed, a search undertaken suggests that para [48] had been cited some 44 times.

84    As I say, the motivation to denounce such conduct is understandable. However, “zero tolerance” is not the language of Direction 110, and it risks obscuring the proportional assessment required by para 8.2. If the Tribunal had treated the mere fact of family violence as automatically requiring heavy weight, without assessing seriousness by reference to the matters identified in para 8.2(3), that would have involved a misapplication of the Direction.

85    The question is whether, read fairly and as a whole, the Tribunal did that. Ultimately, I am not persuaded that it did.

86    First, the Tribunal set out the proportionality language in para 8.2(1). That is not decisive, but it is relevant to understanding the reasoning which followed.

87    Secondly, the Tribunal did not stop at the conclusion that family violence occurred. It referred to the passage of time, Mrs Korat’s evidence of change, the applicant’s engagement with supports, the completion of programmes, Dr Scally’s evidence that the offending was connected to intoxication rather than inherent criminality, and the low risk assessment. Those matters correspond to the applicant’s case on rehabilitation, responsibility, efforts to address contributing factors and risk.

88    Thirdly, the Tribunal also referred to the effect on Mrs Korat and the likely effect on the children if the conduct were repeated. Those matters were relevant to the seriousness and consequences of the family violence.

89    Fourthly, although the Tribunal did not expressly state that there was no trend of increasing seriousness, its reasons do not suggest that it proceeded on the basis that there was such a trend. The better view is that the Tribunal treated the family violence offending as comprising two incidents within a confined period, including one incident involving contravention of an apprehended violence order. That was relevant to frequency and cumulative effect, but it did not require the Tribunal to find an escalating pattern of family violence.

90    I do not accept that the Tribunal overlooked the evidence that the offending was said to be contextual or aberrational. The Tribunal referred to Dr Scally’s evidence that the offending occurred due to intoxication and not inherent criminality. Its earlier discussion of future risk also referred to the professional evidence concerning the applicant’s alcohol dependence, treatment and rehabilitation. The family violence section must be read with that earlier reasoning.

91    The applicant’s reliance on Sam Medlyn’s letter and the counselling evidence does not alter that conclusion. The Tribunal accepted that the applicant had engaged in programmes and supports. The fact that it did not separately refer to every item of counselling evidence does not establish that it failed to consider the substance of the applicant’s case.

92    TR [104] should not be read in isolation. The Tribunal had just identified matters favourable to the applicant and matters adverse to him. As I have noted, it had set out the proportionality language in para 8.2(1). Its conclusion at TR [105] is therefore better understood as an evaluative conclusion that, notwithstanding the favourable matters, the family violence consideration should be given heavy weight.

93    The conclusion of heavy weight was open. There were two family violence incidents within a confined period. The Tribunal was entitled to treat such conduct as serious, while also accepting that rehabilitation had occurred and that risk may have reduced.

94    Ground Three does not materially add to this complaint. The legal unreasonableness argument depends on the proposition that the Tribunal failed to assess seriousness proportionately or gave weight to family violence by applying an automatic zero-tolerance rule. For the reasons given, that premise is not established.

95    Grounds Two and Three, insofar as they concern the family violence consideration, are not established.

E.3    Ground Three

96    Ground Three has been addressed to a substantial extent in dealing with Grounds One and Two. Only a short residual treatment is necessary.

97    The residual unreasonableness case has two principal limbs. First, it is said that the Tribunal discredited or discounted the most recent medical evidence by relying on earlier, superseded or outdated reports. Secondly, it is said that the weight attributed to family violence was not proportionate to the seriousness of that offending: OA (at [15]).

98    For the reasons already given, neither limb is established. The Tribunal did not ignore the more recent reports or treat them as irrelevant. It accepted important aspects of them, including that the applicant had engaged in meaningful rehabilitation and that the risk may be low. It nevertheless remained concerned about relapse, community testing, past unsuccessful attempts and the serious consequences of further offending. That reasoning had an evident and intelligible justification.

99    Nor did the Tribunal apply para 8.2 as an automatic zero-tolerance rule. The reasons as a whole show that the Tribunal considered evidence bearing on seriousness, rehabilitation and risk before attributing heavy weight to the family violence consideration.

100    The applicant’s submissions identify evidence capable of supporting a different conclusion. But legal unreasonableness is not established merely because another decision-maker might have been more persuaded by that evidence. The Tribunal’s conclusions were within the area of decisional freedom conferred by the Act and Direction 110.

101    Ground Three is not established.

F    CONCLUSION

102    Ultimately, the applicant’s challenge seeks repeatedly to transform disagreement with the Tribunal’s evaluative assessment into a complaint about legality. The applicant identifies evidence potentially capable of supporting a different conclusion and contends that the Tribunal should have attributed greater significance to that evidence. That is not, however, the function of judicial review.

103    For the reasons given above, none of the grounds of review has been established. It follows that the application must be dismissed. Costs should follow the event.

Associate:

Dated: 17 June 2026