Federal Court of Australia

Tian v Minister for Immigration and Multicultural Affairs [2026] FCA 767

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s amended application for review filed on 24 October 2025 is dismissed, with costs.

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

REASONS FOR JUDGMENT

NEEDHAM J:

Background

1    This is an application for review of a decision of the second respondent, the Administrative Review Tribunal to refuse to grant the applicant a student (subclass 500) visa. The applicant relied on his amended application filed on 24 October 2025.

2    The applicant, Mr Yuan Tian, is a citizen of China and first arrived in Australia in 2007 when he was 18 years old. Mr Tian is married to Ms Rui Zhao, an Australian permanent resident, and Mr Tian and Ms Zhao have two children: a daughter, S, who was born in 2013, and a son, R, who was born in 2022. S and R were born in Australia. Relevantly, R was diagnosed with Severe Aplastic Anaemia in 2024.

3    On 5 July 2017 a delegate of the first respondent, the Minister, cancelled the applicant’s class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Migration Act 1958 (Cth). On 9 December 2017 the applicant was released on parole and transferred to immigration detention.

4    On 17 April 2018, a delegate decided to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act.

5    On 12 January 2022, the applicant was arrested and convicted of further offending.

6    On 22 May 2024, the applicant’s visa was cancelled again under s 501(3A) of the Migration Act. On 11 October 2024 a delegate of the Minister refused to revoke the cancellation of the visa, and on 17 October 2024 the applicant applied to the Tribunal for review of that decision.

7    On 20 December 2024, the Tribunal affirmed the decision under review and provided reasons on 26 March 2025 (Decision).

8    At the hearing, the parties relied on a Court Book and Supplementary Court Book prepared by the first respondent. Mr Tian additionally relied on an affidavit of Alasdair Colin Dougall, solicitor for the applicant, which annexed the transcripts of hearing before the Tribunal. At the Tribunal hearing, Mr Tian was represented and was assisted by an interpreter in Mandarin.

Grounds of review

9    The applicant raised three grounds of review.

10    Ground one challenged the Decision by reference to the way in which it addressed the best interests of the applicant’s children under Ministerial Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). Grounds two and three challenged the Decision by reference to the manner in which the Tribunal considered the expectations of the Australian community under the Direction. In each instance, the applicant contended that the Tribunal made a jurisdictional error.

Principles

11    It was not in contest that the Tribunal, pursuant to s 499(2A) of the Migration Act, was required to comply with the Direction and that an error in the form of a failure to comply with a direction is capable of constituting a jurisdictional error: Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 (Mortimer J); BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] (Collier, Flick and Perry JJ)

12    A Direction such as Direction 110 made pursuant to s 499 of the Migration Act is an expression of a Government expectation as to “the norms by which decisions to refuse or cancel visas are made”: see FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 (Flick, Charlesworth and Stewart JJ) per Stewart J at [89]; see also Charlesworth J at [75]. The expectations set out in the relevant Directions are “a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations …”: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (Mortimer J) at [76].

Did the Tribunal give proper consideration to the best interests of the applicant’s children?

Ground 1 – whether the children’s best interests were given individual consideration

13    The relevant part of the Direction to this ground is paragraph 8.4: “Best interests of minor children in Australia affected by the decision”. Paragraph 8.4(1) provides that the decision-maker – in this case, the Tribunal – “must make a determination about whether cancellation or refusal … is, or is not, in the best interests of a child affected by the decision”. The consideration only applies if the child is under 18 years old at the time when the decision is expected to be made: paragraph 8.4(2), and “[i]f there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”: paragraph 8.4(3).

14    Paragraph 8.4(4) sets out a list of factors that must be considered, where relevant, in considering the best interests of the child. The applicant submitted that the qualification of “where relevant” gives the Tribunal parameters to consider what factors are relevant and what factors are not. However he contended that the Tribunal failed to give proper and genuine consideration to the best interests of his children, particularly in considering the factor in sub-paragraph (d), which is “the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways”.

15    The applicant submitted that the Tribunal did not give proper consideration to the representations made about R’s particular needs in relation to his medical condition, and S’s particular needs as having received less attention when her mother was sole caring for both children.

16    The relevant representations were set out in the applicant’s submissions at paragraph 14. In summary, the applicant stated that R was diagnosed with Severe Aplastic Anaemia in early 2024, and as a result his “whole family’s life ha[d] been turned upside down” by having to focus exclusively on his son. The applicant’s wife, Ms Zhao, gave evidence about the pressure of the care-taking role, and gave evidence at the Tribunal hearing through an interpreter which is extracted below:

INTERPRETER: Well, the medical condition is that my son's bone is not producing blood, the bone marrow is not producing blood, you know. So we need to keep a close we have to watch him closely and the doctor said that any bleeding or infection should be avoided, has to be avoided. In case of fever we have to take him to the emergency department in the hospital immediately. So I can't even remember how much time we spend in the emergency department now because every time when he was taken to hospital, he had to stay there for several days, and I don't even have time to take care of my daughter.

…

INTERPRETER: After my husband came back, my pressure has been greatly reduced. Because usually I had to do everything by myself. And the younger child was little, you know. And at the same time I had to take care of my brother. And when my husband came back home, he was doing a time when the real needs of [R] was most serious. He had been staying in the hospital for two months, you know. He was very sick. He actually – he actual underwent a procedure called the metal piercing - a metal penetrating. And because of the infection, he also had to stay in the ICU. So after my husband came back, he was able to help me to look after the family, to take care of the daughter. So we were able to take turns to go to the hospital to take care of our son …

17    There was also medical evidence before the Tribunal about R’s medical condition.

18    The Tribunal dealt with paragraph 8.4 of the Direction at some length in the Decision; it set out the requirements of the consideration in paragraphs 74 to 76, dealt with each factor in paragraph 8.4(4) of the Direction in paragraphs 77 to 90, and set out its conclusion in paragraphs 92 to 95. The applicant submitted that the Tribunal failed properly to consider the factor in paragraph 8.4(4)(d) of the Direction, by reference to the representations that were made about each of the children, their interests and the impact of separation upon them, in the event of a non-revocation decision. It was submitted that these representations were of significance and the Tribunal was required to engage in an “active intellectual process” with the representations: Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 659 at [36(d)].

19    The Tribunal’s reasons for its consideration of paragraph 8.4(4)(d) are at paragraphs 86 to 87 of the Decision. These paragraphs are extracted below:

86.    Sub-paragraph (d): given the close nature of the parental relationship between the Applicant and each of the children, continued separation from the children will continue to adversely affect each of the children. This will be especially so if the Applicant is removed to China as this will prevent any in-person contact between the Applicant and the children unless the children were able to visit him in China. The Applicant and his children will be able to maintain contact through electronic means, but that, of course, is no substitute for real in-person contact.

87.    The Tribunal notes however that while there is no doubt that the children will each continue to suffer hardship as a result of the absence of their father if he is removed. If the Applicant were to continue to reoffend, which the Tribunal has found is a real risk, it may well be that removing the Applicant from Australia now may be preferable for the interests of the children rather than giving them false hope now only for the Applicant to reoffend and be removed at a later point.

20    The applicant placed significant weight on the requirement in the Direction that, to the extent the interests of more than one child differ, the Tribunal should individually consider the best interests of each child. Mr Johnson, who appeared for the applicant, submitted that the Tribunal failed properly to consider, by reference to the submissions that were made about each of the children, their interests, and the impact of separation upon them. He took the Court to the paragraphs of the Decision which dealt with the submissions in relation to each of the children, and submitted that, while the Tribunal was “not ignorant of the representations that were made about the children” it paid insufficient consideration to the impact on the children of separation from their father. Rather, it focused on the impact upon them if he continued to re-offend. It did not make any more nuanced consideration, it was submitted, than that “continued separation from the children will continue to adversely affect each of the children”.

21    In particular, the applicant contended that the Tribunal did not deal with the importance of the applicant in his children’s lives, the struggle that his wife was having with the younger child, R, who suffered significantly from illness, and the positive impact on the family when the applicant was on bail for a period of time.

22    I was taken to the evidence before the Tribunal, in particular the statements of Mr Tian’s wife and daughter in Exhibits 4 and 10, and Mr Johnson read some evocative statements which painted a picture, realistic to any parent of an unwell child, of the difficulties in caring for that child and balancing the interests of the other child. An example of the mother’s evidence as to her children and the impact that her husband’s absence had on her family was given:

I’m really tired. During this period, I don’t know how many times I have taken [my son] to the emergency department. Now I’m afraid at night that he will have a fever. When I’m in the hospital, I still worry about our daughter. She is also a child. She also needs her father and mother to take care of her. The daughter also misses her father very much. She often asks when daddy can come home.

23    The submission was that this kind of evidence of the significant challenges to each of the family members should have been dealt with and “it was incumbent upon the Tribunal when applying itself to the direction to do more than deal with it in a single sentence”.

24    The first respondent submitted that the Tribunal properly considered the primary consideration of each of the children’s bests interests. It was submitted that the Tribunal considered; the closeness of the relationship between the applicant and his children (at paragraph 77), the son’s medical condition (at paragraphs 80 to 82), and the impact of the applicant’s imprisonment on his wife and daughter (at paragraph 79). The Tribunal noted that it was not inevitable that the applicant would re-offend, and even if he did, it was not inevitable that he would be removed from Australia (at paragraph 93). Consequently, the Tribunal found that non-revocation of the visa cancellation was not in the best interest of either child, and placed heavy weight on this consideration in the applicant’s favour (at paragraphs 93 and 95). In paragraph 18 of his submissions, the first respondent pointed to a number of paragraphs of the Decision including paragraph 79 in which the Tribunal dealt with the two children separately. Paragraph 79 of the Decision reads:

Sub-paragraph (c): there is limited direct evidence of the impact of the Applicant’s conduct on each of his two children. There is compelling evidence from the Applicant, his wife and his daughter … that each of the Applicant’s two children, and especially his daughter, suffered including emotionally as a result of the absence of their father owing to his imprisonment. It was evident from the Applicant’s wife’s evidence that it has been extremely difficult for her to cope with looking after the two children without the Applicant’s assistance, especially after their son’s severe aplastic anaemia diagnosis last year.

(Emphasis from the first respondent’s submissions.)

25    The Minister submitted that the Tribunal embarked on a detailed analysis of the evidence relating to each of the children, engaging “with specificity” with the matters which the applicant says it did not; that is, his son’s particular needs in relation to his serious medical condition, and his daughter’s needs in light of the focus of her parent on the son’s needs. This was in contrast, the Minister submitted, to the successful argument before Raper J in Rangiuia v Minister for Immigration and Citizenship [2025] FCA 920 at [85] where the Tribunal failed to give more than a cursory examination of the specific factors, and differences in health needs, between the applicant’s three children. In Mr Tian’s case, the Tribunal dealt with the children separately (and the Minister noted the use of the words “especially his daughter” in paragraph 79 of the Decision). In response to this, the applicant submitted that the separate interests of the children were dealt with elsewhere in the Decision, but its silence on the topic in paragraphs 86 and 87 meant that “the better inference [was] that the Tribunal has not turned its mind to that question at all”.

26    The applicant’s reply was that, while the “adverse effect” on the children was acknowledged, the specifics needed to be dealt with, in relation to each child in particular. There needed to be a separate and individual identification of those parts of the applicant’s case which dealt with the children’s separate and individual needs. He submitted that approach is underscored by Rangiuia at [88] and [90], where her Honour inferred from the absence of specific attention to particulars of each child’s interests that “the Tribunal failed to identify material that was manifestly relevant” and so “fail[ed] to assess each child’s interests individually”.

27    I have considered the entirety of the Tribunal Decision. If paragraphs 86 and 87 of the Decision were the only matters in the Tribunal’s consideration of paragraph 8.4(4)(d) of the Direction, it may well have been correct to say that consideration by the Tribunal had been deficient. However, the whole of the decision, while divided into considerations of particular sub-paragraphs, covers the required ground of 8.4(4)(d). For example, consideration of sub-paragraph (f) (the views of the child) at paragraph 89 of the Decision sets out the daughter’s “heartfelt statement explaining her family situation including her brother’s illness and how difficult it has been for her hard-working mother”.

28    The Tribunal’s conclusion is made, not in paragraphs 86 and 87, but in paragraphs 92-95, and the Tribunal placed “heavy weight on this primary consideration in the Applicant’s favour” (at paragraph 95).

29    I do not consider that the Tribunal failed to consider properly the best interests of each of R and S in accordance with paragraph 8.4(4)(d) of the Direction. On the contrary, the Tribunal took care to review R’s significant medical needs, including having regard to his doctors’ opinions (at paragraph 80), the applicant’s description of his condition (paragraph 81), the applicant’s wife’s evidence on the effect of the applicant’s presence on their daughter and herself (at paragraph 82), the familial love they each had for the other members of the family (at paragraph 83), the video of the wife’s testimony (at paragraph 79), and reading the daughter’s statement (at paragraph 89). Paragraphs 86 and 87 could deal more thoroughly with the considerations in sub-paragraph 8.4(4)(d) of the Direction, but they cannot be read as the total consideration of the difference in impact of the children’s separation from the applicant.

30    It is necessary to consider all paragraphs of the Decision fairly, and in the context of the Tribunal’s reasons as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [60]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. I do not consider that the failure of the Tribunal to cite specific instances of evidence (such as the particular evidence cited above at [22]) indicates a failure to take the evidence as a whole into account. The Tribunal noted that it had considered the “G Documents”, the documents tendered into evidence, and all of the evidence given at the hearing of the matter, including reviewing a video recording of the hearing (at paragraph 22 of the Decision). The Tribunal considered the opinions of two psychologists, one retained for the applicant’s sentencing hearing and one for the Tribunal hearing, each of which considered the supportive nature of his relationship with his family.

31    As raised with Mr Johnson during argument, the question of materiality is also relevant. Had I determined that the Tribunal had failed to give proper consideration to the separate interests of the two children, then I would not have considered that it would have realistically resulted in a different outcome because “heavy weight” had already been placed in the applicant’s favour; see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321.

32    Ground 1 does not succeed.

Did the Tribunal misconstrue or misapply paragraph 8.5 of the Direction?

Ground 2 – whether the Tribunal mistakenly regarded itself as being bound to comply with the expectation expressed in paragraph 8.5 of the Direction

33    Paragraph 8.5(1) of the Direction – headed “Expectations of the Australian Community” states:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

34    The applicant’s contention was that the Tribunal had made an error in considering that it had to comply with the Government’s “statement of policy” in paragraph 8.5 and to consider it as a primary consideration. The applicant’s issue was taken with the following sentence at paragraph 98 of the Decision:

… the Government has provided a statement of policy in relation to community expectations which decision-makers must comply with and consider as a primary consideration.

(Emphasis added in applicant’s submissions.)

35    The argument is that the Tribunal erred in understanding its discretion in applying paragraph 8.5 of the Direction. The applicant contended that in citing that it needed to “comply with” the Government’s statement of policy in relation to clause 8.5, the Tribunal erred; it was required to comply with the Direction, not the “statement of policy”, in the sense that it was not compelled to make a decision consistent with that policy.

36    The applicant drew on the words of Charlesworth and Stewart JJ in FYBR. At [75]-[76], Charlesworth J said:

75.    Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

76.    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.

(Emphasis added in applicant’s submissions.)

37    The Tribunal is not required to give effect to the expectation deemed to be that of the Australian community in the Direction; it must, instead, determine whether it is appropriate, in all the circumstances, to revoke the cancellation or not; see Stewart J in FYBR at [103] where his Honour said: “It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa”.

38    The applicant’s submissions trod a fine line between noting that the Tribunal was correct to express the norm in 8.5(1) as the Government’s expectation that a person such as the applicant should not hold a visa (see the discussion at [12] above), and construing the Tribunal’s reasons as demonstrating an approach that the norms dictate the outcome of the applicant’s proceedings before it. Mr Johnson invited me to read paragraphs 97 to 100 of the Decision contextually, as I must, but submitted that the words in paragraph 98 demonstrated an error, being that the Tribunal considered it was bound to adhere to, or cohere with, the expression of the expectation.

39    Mr Johnson raised the important point that the approach warned of in Wu Shan Liang (at 271-272) still requires a contextual decision as to what the Tribunal, in fact, thought. He submitted that the words should not be thought to have been used “without due consideration or in some folly”.

40    The first respondent submitted that the above argument “relies on an incomplete reading of one part of one paragraph of the Tribunal reasons”, being paragraph 98. The Minister pointed to paragraph 97 of the Decision as being a correct summary of the normative expression of the Australian community’s expectations in 8.5(1) of the Direction, and the statement at paragraph 99 that “the weight to be given to this primary consideration is of course a matter for the Tribunal”. The Tribunal then went on to consider the “relative weight of all considerations” and found that it put “heavy weight” on the primary consideration in 8.5 of the Direction.

41    The first respondent submitted that the Tribunal’s reasons, read as a whole, undercut the applicant’s case that the Tribunal regarded itself as having no discretion. There was a rational and probative basis demonstrated in the weighing of the considerations.

42    In reply, the applicant submitted that Ground 2 was not a challenge to the weight the Tribunal placed on the provision; it was instead a “challenge to the anterior step of the Tribunal’s understanding of the provision”.

43    This ground of appeal is not made out. While I agree, along with the majority in FYBR, that the expression in the Direction of a community expectation does not require a decision-maker to decide in a particular way, I do not agree that the Tribunal in this instance failed to understand that. Paragraph 99, which immediately follows the words to which the applicant draws attention in Ground 2, reads:

The weight to be given to this primary consideration is of course a matter for the Tribunal, and I place weight on this consideration primarily by considering the nature and seriousness of the Applicant’s offending which informs severity of the breach of the community expectation to obey the law: see DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344 per curium at [53] to [64]. I will of course consider the relative weight of all considerations at the conclusion of my decision-making process.

44    I am strengthened in this conclusion by the unobjectionable way in which the Tribunal dealt with the weighing of all of the aspects considered from paragraph 111 of the Decision. While the community expectation factor weighed “heavily against revocation of visa cancellation”, the Tribunal went on to weigh all of the relevant considerations against it, and in paragraph 115 said:

After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 5.2 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour.

45    The use of the words “must comply” do not import an erroneous approach to the process of weighing the various factors.

46    Ground 2 should be dismissed.

Ground 3 – whether the Tribunal failed to consider a representation made by the applicant as to the weight to be ascribed to the Australian community’s expectations in paragraph 8.5 of the Direction

47    The applicant’s submission to the Tribunal was that “little weight” should be given to the expectations of the Australian community. This submission was made as follows:

… because paragraph 8.5 required an interpretation that was “extreme, rigid and intolerant” and was “unfair, cruel and ultimately non-representative” of what the Australian community believes, and because of “compelling and compassionate circumstances” of the applicant’s son’s medical condition: [41]-[42] [of the Statement of Facts Issues and Contentions (SFIC)]

48    In his submissions to the Tribunal, the applicant called for a consideration of his circumstances which “any Australian … would find compelling and compassionate”. This representation was not, it was submitted, considered by the Tribunal. Without contending that the Direction was inherently unfair, and indeed, acknowledging that it was open to the Tribunal to weigh the expectations of the Australian community as it saw fit, including by reference to the Direction, Mr Johnson submitted that there was no consideration of the “emotive, but very clear submissions made by the applicant’s representatives about why … the expectations of the Australian community consideration should be given little weight”.

49    The applicant relied on the statement of the High Court in Plaintiff M1 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24] where Kiefel CJ, Keane, Gordon and Stewart JJ said:

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

(Footnotes omitted.)

50    I was taken to QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 where Rangiah J set aside a decision of the (relevant) Tribunal. After setting out the factors the Tribunal took into account in making its decision on the expectations of the Australian community (at [36]), his Honour noted that the Tribunal “did not refer to or engage with the applicant’s submission that this consideration should not weigh heavily against him” (at [37]). The Tribunal in that case had identified that the relevant submission was made, but in listing the factors which it took into account, did not refer to it (at [42]-[43]). The Minister in that case submitted that the conclusion of the Tribunal, noting that it had undertaken “a holistic application of the considerations in the Direction to the evidence” was indicative of a final, overall consideration of the relevant factor, including the submissions. His Honour did not accept that it was a “free-standing further review of all the relevant factors” (at [46]).

51    Mr Tian’s case was that had the Tribunal considered that submission, “it could have resulted in different weight having been attributed to the expectations of the Australian community, which could realistically have resulted in a different outcome”.

52    The Minister characterised this ground as being a complaint “about the harshness of the policy as drafted” and that in reality the portion of the SFIC relied upon was the possibility that the applicant may have been a bone marrow donor for his son. The Tribunal, it was submitted, dealt with that evidence in paragraph 94.

53    The Minister submitted that the complaint in Ground 3 was that the Tribunal did not specifically reject that part of the applicant’s submissions. In argument, I was taken to the preceding paragraph ([23]) in Plaintiff M1 where the majority said:

It is, however, improbable that Parliament intended for that broad discretionary power [in s 501CA(4)] to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

(Footnotes omitted.)

54    The Minister took me to BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 (Colvin J) at [10] where his Honour discussed Plaintiff M1 at [22]-[27], and the High Court’s (Kiefel CJ, Keane, Gordon and Stewart JJ) enunciation of the distinction between:

… considering the representations for the purpose of comprehending their content and evaluating whether they have significance (on the one hand) and considering the representations as part of the deliberative process to be undertaken by the Minister in forming the required state of satisfaction (on the other hand).

55    Mr Liu, for the first respondent, pointed to the distinction enunciated by Colvin J of the requirement by the Minister to form a view as to whether the applicant passes the character test, for which there is a statutory definition, and the “broad discretionary power” to determine, as in this case, whether there is “another reason” for the court to exercise that power in their favour. Mr Liu submitted that there did not need to be a specific rejection of each representation, but there needs instead to be an actual consideration of the expectations of the Australian community. In giving that consideration heavy weight, as the Tribunal did, it implicitly rejected the submission that it should not be given that weight.

56    In response, Mr Johnson noted that the blood donor point was not the sole or only focus of the relevant submission, and that the Tribunal needed to deal with those other points.

57    I have considered the applicant’s SFIC which was contained in the Supplementary Court Book. The expectations of the Australian community (paragraph 8.5 of the Direction) are dealt with in paragraphs 37 to 42. They are, indeed, emotive; they call on not only the unfairness of the Tribunal in interpreting the Direction in a “no-tolerance” way but also on the “pub test or any other reasonable test with regard to being aligned with the values of mainstream Australia”.

58    The SFIC acknowledges the terms of paragraph 8.5(4) of the Direction, which is that “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”. The relevant terms of the SFIC are set out at [47] above.

59    Distilling the arguments in Mr Tian’s submission on paragraph 8.5 of the Direction, it seems to be that despite the clear words of the paragraph, the Tribunal should nonetheless have acknowledged and dealt with the argument that the Direction was unfair, cruel, and ultimately non-representative of the what the Australian community believes, and did not give the applicant a “fair go”.

60    In paragraph 98, the Tribunal noted that “the wording of the Direction does not appear to allow for any subjective evaluation by the Tribunal of what the expectations of the Australian community are”. It described the statement of policy in relation to community expectations as what (as noted above in relation to Ground 2) the decision-makers “must comply with and consider as a primary consideration”. Paragraph 99 is set out above at [43] and the member put that approach in a relative context along with “all considerations at the conclusion of my decision-making process”.

61    Having reviewed the whole of the Tribunal’s reasons, I regard paragraphs 98 and 99 as dealing with the applicant’s submission as to the harshness of the Direction. In particular, the Tribunal considered the fact that the Government has provided in paragraph 8.5(4) a requirement that no independent assessment of the community’s expectations in any individual case should be carried out (which is cited in paragraph 96 of the Decision). I do not regard the failure to independently rehearse the language of the SFIC in the consideration of paragraph 8.5 to be a “[s]ubstantial and clearly articulated argument” which was “ignored, overlooked or misunderstood” (see BLBY at [12]). As Colvin J went on to say at [13]:

… the fact that the Tribunal has not mentioned particular information does not necessarily mean that it has ignored, overlooked or misunderstood and thereby not considered that information: KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111 at [54] (Bromberg, Jackson and Feutrill JJ).

62    The Tribunal’s duty to consider the considerations of the Direction was carried out consistently with the approach of having regard to the content of the representations in relation to each particular factor. A mere failure to refer expressly to a representation does not result in a finding of jurisdictional error, particularly where the Tribunal has addressed each consideration to which it must have regard (which the Tribunal has carefully done in this case). As Colvin J said in BLBY (at [20]), “there must be particular attention to precisely what is required by the Direction and the need for the Direction to be consistent with the nature of the discretionary power conferred by s 501CA(4)”.

63    In this case, the Tribunal had regard to the underlying considerations upon which the discretionary power may have been exercised. A representation that the Tribunal should in fact make an independent assessment of the community’s expectations as to whether a fair go should be given in this case is adequately answered by the Tribunal’s recitation of the wording of paragraph 8.5 (at paragraph 96 of the Decision), and the expression in paragraph 98 that “the wording of the direction does not appear to allow subjective evaluation by the Tribunal of what the expectations of the Australian community are”.

64    The third ground of appeal is not made out.

Determination

65    The application for review should be dismissed with costs.

Associate:

Dated:    18 June 2026