Federal Court of Australia

Mwambwa v Minister for Immigration and Citizenship [2026] FCA 931

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the first respondent fixed in the amount of $4,000.

3.    Subject to further order, order 1 of the orders made on 23 June 2026 is discharged with effect from 5 pm AWST on 24 July 2026.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Vincent Mwambwa applied for a Bridging E (class WE) visa. A delegate of the Minister refused his application pursuant to s 501(1) of the Migration Act 1958 (Cth) on the basis that he did not satisfy the character test (specified in s 501(6)). He sought review of the decision in the Administrative Review Tribunal. The Tribunal affirmed the delegate's decision. Mr Mwambwa now applies to this Court to review the Tribunal's decision on the basis of alleged jurisdictional error. The alleged errors focus upon the way in which the Tribunal's reasons addressed the best interests of his young daughter, being a mandatory consideration to which the Tribunal was required to have regard. Ultimately, Mr Mwambwa advanced seven alleged jurisdictional errors by the Tribunal. In order to explain the nature of the alleged errors, it is first necessary to explain the nature of the Tribunal's decision-making task and relevant aspects of the Tribunal's overall reasoning pathway.

The Tribunal's decision-making task

2    The Tribunal was required to make its own decision on the merits standing in the shoes of the Minister's delegate: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ). The procedure to be followed in making that decision was a matter for the Tribunal, subject only to applicable provisions in s 500 of the Migration Act. It was required to act with as little formality and technicality as proper consideration of the matters before the Tribunal permitted. It was not bound by the rules of evidence. The parties were to be given a reasonable opportunity to present their case, make submissions and adduce evidence. The decision to be made by the Tribunal on Mr Mwambwa's review application was whether the discretionary power conferred by s 501(1) of the Migration Act to refuse a visa if a person does not pass the character test should be exercised in respect of Mr Mwambwa's visa application.

3    At the time of the Tribunal's decision, in the performance of its decision-making function, the Tribunal was required to comply with any direction that had been given by the Minister as to the exercise of the discretionary power: s 499(2A) of the Migration Act. Direction No 110 dated 7 June 2024 applied to decisions made in respect of the power conferred by s 501(1) (as well as certain other powers). It is now well established that a failure by the Tribunal to comply with the Direction will amount to jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 32 at [30]-[33] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) and FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O'Callaghan, Colvin and Derrington JJ).

4    The Direction sets out principles which 'provide the framework within which decision-makers should approach their task'. Put broadly, the principles outline aspects of Government policy that may bear upon the exercise of powers to which the Direction applies. They focus upon a stated expectation that non-citizens who are to allowed to enter and remain in Australia are law-abiding as well as concerns for the safety of citizens. In particular, the principles state (para 5.2(3)):

Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

5    The factors 'that must be considered in making a decision under section 501' are identified in a separate part of the Direction (see the opening language of para 5.2 of the Direction). Informed by the principles, 'a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision' (section 6).

6    The Direction identifies 'primary considerations' that are generally to be given greater weight than other considerations. Of those, the protection of the Australian community from criminal or other serious conduct 'is generally to be given greater weight than other primary considerations' (see para 7(2)).

7    There are five primary considerations. They include primary consideration (4), being 'the best interests of minor children in Australia'.

8    Of further significance for present purposes is the following language in para 8.1 of the Direction:

(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen's conduct to date; and

b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

9    Accordingly, the Direction places considerable emphasis upon a Governmental policy to the effect that non-citizens who seek to enter and remain in Australia are expected not to engage in criminal activity or pose a safety risk to citizens. Hence the requirement in the direction that the protection of the Australian community from criminal or other serious conduct must be taken into account and is generally to be given greater weight than other primary considerations which in turn are generally to be given greater weight than other considerations. Any evaluation as to whether there has been compliance with the Direction by the decision-maker must have due regard to these aspects of its terms.

The Tribunal's reasoning pathway

10    The Tribunal began with matters of 'Background', setting out the history of Mr Mwambwa's criminal offending. The Tribunal then dealt with the history of Mr Mwambwa's visa application and the refusal of that application by the delegate. The focus of the Tribunal upon the history of criminal offending is understandable given its significance for the decision to be made by the Tribunal (having regard to the terms of the Direction) and the need for the Tribunal to determine whether Mr Mwambwa passed the character test. The submission for Mr Mwambwa to the effect that the Tribunal's reasons focussed unduly upon his offending over other considerations should not be accepted. The Tribunal's reasons dealt with each of the primary considerations and other relevant considerations later in its reasons.

11    Next, the Tribunal correctly identified that there were two issues for it to consider, namely whether Mr Mwambwa satisfied the Tribunal that he passes the character test and whether the Tribunal should exercise its discretion to refuse to grant the visa sought by him. After finding that Mr Mwambwa did not pass the character test, the Tribunal turned to the second issue.

12    The Tribunal began its consideration of whether to exercise the discretion to refuse to grant a visa to Mr Mwambwa by referring to the Direction in terms that are not criticised. The Tribunal then referred to 'The Hearing and the Evidence'. The Tribunal referred to Mr Mwambwa as being 'self-represented' and that he 'appeared in person'. It then said that he 'gave evidence and was cross-examined' (para 38). As will emerge, the reference to Mr Mwambwa having given evidence is contentious. One of the grounds advanced by Mr Mwambwa is to the effect that he was not given an opportunity to give 'evidence in chief' (see below). The Tribunal then set out an account of the oral evidence given by Mr Mwambwa and his partner. Much of that account was concerned with their daughter and her need for support from Mr Mwambwa.

13    The Tribunal then turned to the exercise of the discretion conferred by s 501(1) of the Migration Act. It began in the following way (paras 75 to 77, referring to Mr Mwambwa as the Applicant and the Minister as the Respondent):

The considerations relevant in the context of a refusal decision under s 501(1) of the Migration Act are the five ‘primary considerations’ and the four ‘other considerations.’ The considerations are addressed in turn to determine whether the Tribunal’s discretionary power pursuant to s 501(1) of the Migration Act is enlivened.

At the hearing, the Applicant submitted that the best interests of his minor daughter outweighs all other considerations. The Applicant emphasised that he took his rehabilitation seriously and that he and [his partner] are still together after his offending when they could have gone their separate ways or she could have chosen not to forgive him.

The Respondent contended that the protection of the Australian community, the Applicant’s acts of family violence and the expectations of the Australian community weigh heavily in favour of exercising the discretion to refuse to grant the visa and outweigh the countervailing considerations.

14    Before this Court, there was no issue as to the accuracy of this summary. It correctly exposed the significance placed by Mr Mwambwa upon the best interests of his daughter for the discretionary decision to be made by the Tribunal.

15    The Tribunal then turned to the primary considerations. It began with primary consideration (1) (protection of the Australian community). It set out the detailed requirements of the Direction in relation to that primary consideration in terms that are not criticised by Mr Mwambwa.

16    For Mr Mwambwa, a submission was advanced to the effect that the Tribunal's reasons in dealing with primary consideration (1) were more detailed than later reasons addressing the best interests of Mr Mwambwa's daughter (as to which, see below). However, I do not accept the validity of the comparison for two reasons. First, as I have explained the Direction requires matters relating to criminal offending and the safety of the Australian community to generally be given the greatest weight. Second, the Direction has considerable detail as to the matters to be addressed concerning primary consideration (1) and the reasons of the Tribunal simply reflect that aspect of the Direction. The conclusion reached by the Tribunal as to primary consideration (1) was that 'the protection of the Australian community consideration weighs very heavily in favour of it exercising its discretionary power to refuse to grant the visa'.

17    The Tribunal's reasons then addressed primary consideration (2) (family violence) (paras 101 to 111). They began by setting out the relevant part of the Direction. Concise reasons were given for concluding that consideration (2) weighs very heavily in favour of refusing to grant the visa, namely (paras 108 to 110):

The Applicant’s common assault in circumstances of aggravation or racial aggravation and unlawfully assault and thereby did bodily harm with circumstances of aggravation constitute, family violence as defined, being violent behaviour against the Applicant’s former partner and also against his current partner...

Having regard to paragraph 8.2(3)(c) of [the] Direction…, while the Applicant expressed that he knew how much he hurt [his current partner] and that he had apologised to her for his violent offending, he also initially denied having assaulted her and his claimed remorse appears to be more related to how violent offenders are perceived in the community (everyone will see you in a different way’) and from his desire to remain in Australia.

Further, as noted above, the Applicant’s rehabilitation is limited as are any expressed learnings or gains made from rehabilitation courses to date.

(Italics in original)

18    As will emerge, issue is taken by Mr Mwambwa with the procedure that was followed in relation to the making of the adverse finding concerning his claimed remorse.

19    Next, the Tribunal's reasons addressed primary consideration (3) (ties to Australia) and concluded that it weighed moderately against the refusal to grant the visa. Again, the Tribunal set out the relevant parts of the Direction and reasoned concisely to a conclusion. The operative part of the Tribunal's reasons was as follows (paras 115 to 117):

The Tribunal accepts that the Applicant and Ms Knezovich have reconciled following his violent offending against her and that he claims to be a different person now. The Tribunal also accepts Ms Knezovich’s evidence that she cannot imagine her life without him and the Applicant’s mother’s evidence that his detention has had a devastating effect on her.

This being said, the Tribunal cannot overlook the fact that the Applicant’s ties to Ms Knezovich include the fact that she was the victim of one of his family violence offences.

The Applicant has resided in Australia for 12 years, arriving in 2013 at the age of 16 and offending from 2017. The Tribunal accepts the Applicant spent a period of time positively contributing to the community in his employment as a bricklayer.

(Footnotes omitted)

20    The Tribunal then dealt with primary consideration (4) (best interests of minor children in Australia). As will emerge, much of Mr Mwambwa's present application raised grounds that were concerned with this part of the Tribunal's reasoning. After setting out the relevant parts of the Direction, the Tribunal reasoned as follows (paras 121 and 122):

The Applicant has one minor age daughter, who is currently four years old.

Having considered the available evidence against the relevant factors in paragraph 8.4(4) of [the] Direction…, the Tribunal finds that the best interests of the Applicant’s minor age daughter weighs very heavily against the exercise of its discretionary power to refuse to grant the visa, given that it accepts:

(a)     The Applicant’s and [his partner's] evidence that the Applicant and his daughter share a strong bond, his having cared for his daughter and resided with her prior to his being detained.

(b)     The Applicant’s minor daughter has a developmental delay and that she requires assistance from the Applicant in order to be able to financially access the necessary supports and therapists identified in the speech pathology assessment summary and to support her through this process.

(c)     The Applicant’s daughter’s support needs also include her need for assistance with toileting, which also requires the Applicant’s assistance and support in circumstances where according to [Mr Mwambwa's partner], ‘every day is a struggle’ without it.

(d)     The Applicant intends to resume his parenting responsibilities for his minor age daughter if released.

(Footnotes omitted)

21    I observe that aspects of the submissions advanced for Mr Mwambwa in this Court sought to place significance upon the way the Tribunal's reasons as to primary considerations (1) to (3) were footnoted and sought to contrast them with the way in which the Tribunal dealt with primary consideration (4). I do not accept that any material distinction may be drawn between the Tribunal's form and style of reasons as between the different primary considerations. Throughout the reasons there are footnotes, at some places referring to material before the Tribunal and not at others. In each case, express reference is made to the relevant parts of the Direction, sometimes using footnotes, sometimes in the body of the reasons. No basis has been established for drawing some form of inference from the manner of footnoting and references to paragraphs in the Direction that the Tribunal was less attentive or gave less consideration to those aspects of the Direction that concerned primary consideration (4) when compared to the reasons for primary considerations (2) and (3).

22    For reasons I have given, it was to be expected that the Tribunal's reasons would be more fulsome in relation to primary consideration (1). Even so, I note that a very similar structure to that adopted in dealing with primary consideration (4) was adopted in reaching a conclusion about the nature and seriousness of Mr Mwambwa's offending, being a matter to which the Tribunal was required to have regard in reaching a conclusion concerning primary consideration (1) (see the reasoning at para 84). As to that aspect of its reasons, the Tribunal listed the various matters of significance in the view of the Tribunal in a similar style to that adopted in dealing with primary consideration (4).

23    As to each of the primary considerations, the style of the reasons was similar. The reasons were expressed in a concise way. They identified the main points being made by the parties and then focussed upon particular aspects as the reasons for a conclusion as to whether the consideration weighed for or against the exercise of the discretionary power to refuse the visa application and as to the weight to be afforded the consideration in making an overall decision. Having regard to the structure of the reasons, it may be readily inferred that the matters to which the Tribunal made express reference were those matters that the Tribunal viewed as being of significance. Equally, it may be readily inferred that matters to which no reference was made were not considered to be significant. These matters have relevance for certain of the grounds of review raised by Mr Mwambwa (as to which, see below).

24    Next, the Tribunal dealt with primary consideration (5) (expectations of the Australian community) in a manner that is not criticised, concluding that it 'weighs very heavily in favour of refusing to grant the visa' (para 133).

25    The Tribunal's reasons then addressed the 'other considerations' referred to in the Direction (paras 134 to 153).

26    Having addressed each of the considerations referred to in the Direction, the Tribunal then commenced the final section of its reasons headed: 'Conclusion - The Weighing Exercise'. I will address that part of the reasons below when dealing with the last of the review grounds raised by Mr Mwambwa, which concerns whether the Tribunal properly undertook the weighing task.

The review grounds raised by Mr Mwambwa

27    Allowing for amendments and the way in which submissions were advanced, there were seven alleged jurisdictional errors ultimately alleged by Mr Mwambwa. They were to the following effect:

(1)    The Tribunal failed to comply with s 499(2A) of the Migration Act in that it failed to consider the likely effect that separation from Mr Mwambwa would have on his 4-year-old daughter, as required by the Direction (Ground 2);

(2)    The Tribunal failed to comply with s 499(2A) of the Migration Act in that it did not 'apply':

(a)    cl 8.4(4)(b) of the Direction which required the Tribunal to consider the extent to which Mr Mwambwa was likely to play a positive parental role into the future;

(b)    cl 8.4(4)(f) of the Direction which required the Tribunal to consider the known views of Mr Mwambwa's daughter as expressed in the evidence of others;

(c)    cl 8.4(4)(a) of the Direction which required the Tribunal to consider the nature and duration of the relationship between Mr Mwambwa and his daughter

(Ground 3A);

(3)    The Tribunal failed to afford procedural fairness to Mr Mwambwa in that it did not give him an opportunity to give evidence orally before being questioned by counsel for the Minister (Ground 5AA(a));

(4)    The Tribunal failed to afford procedural fairness to Mr Mwambwa in that it failed to put to Mr Mwambwa the possibility that an adverse finding would be made as to his lack of remorse based upon his evidence about a course that he undertook concerning domestic violence (Ground 5AA(b));

(5)    The Tribunal failed to afford procedural fairness to Mr Mwambwa in that it failed to put to Mr Mwambwa the possibility that an adverse finding would be made as to his lack of remorse based on the evidence he gave about the effect on his partner of his past assault on her (Ground 5AA(c));

(6)    The Tribunal misconstrued or misapplied s 500(6J) of the Migration Act when it refused to receive a document which was a report concerning Mr Mwambwa's daughter (Ground 6AA);

(7)    The Tribunal failed to comply with s 499(2A) of the Migration Act by failing to undertake the balancing and evaluation of the considerations that it was required by the Direction to take into account as part of a single evaluation of their relative significance for the exercise of the discretionary power conferred by s 501(1) of the Migration Act (Ground 7AA).

28    I will address each of the above grounds sequentially adopting the paragraph numbering above.

Ground (1): Alleged failure to consider likely effect that separation would have on Mr Mwambwa's daughter

29    A failure by the Tribunal to comply with the Direction in exercising the discretionary power conferred by s 501(1) of the Migration Act is a breach of s 499(2A) of the Migration Act. A breach of that provision is a failure to comply with a condition for the valid exercise of the discretionary power, which is a jurisdictional error: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [30]-[31] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

30    As has been explained, the Direction requires a decision-maker to take into account the best interests of minor children in Australia, where relevant (primary consideration (4)). As to each of the primary considerations, the Direction also lists factors that 'must be considered in making a decision under s 501' in making a determination as to whether refusal of the visa application is or is not in the best interests of the child ('to the extent relevant in the particular case'): see opening part of para 5.2 of Direction.

31    The terms of the Direction are to be construed as if its provisions were sections in an Act: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; (2024) 305 FCR 26 at [36] (McDonald J, Katzmann and Dowling JJ agreeing).

32    In the case of primary consideration (4), as to the factors that must be considered, the Direction provides as follows (para 8.4(4)):

In considering the best interests of the child, the following factors must be considered where relevant:

a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d) 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;

e) whether there are other persons who already fulfil a parental role in relation to the child;

f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

33    As I have explained, the Direction identifies the considerations to which there must be regard, if relevant. This makes it mandatory for the Tribunal to bring those considerations into account and weigh them against each other (in the manner provided for by the Direction) when considering whether to exercise the discretionary power conferred by s 501(1) of the Migration Act: LPDT at [33].

34    However, it is not the case that the Direction requires the decision-maker to take into account each of the listed factors in para 8.4(4) in forming a view as to the best interests of the child (in the sense of bringing them to account as part of the decision as to whether the refusal of the visa was or was not in the best interests of the child). Rather, the Direction requires primary consideration (4) to be taken into account in the manner provided for in the Direction and for the factors listed in para 8.4(4) to be considered in making a determination as to whether refusal of the visa application was in the best interests of minor children.

35    When it comes to a direction expressed in the terms of para 8.4(4), as we explained in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160; (2024) 306 FCR 372 at [41] (Perram, Colvin and Abraham JJ):

Ultimately, it is the determination as to whether revocation is or is not in the best interests of a child to which the decision-maker must have regard in making the decision. That determination may be expected to include within it a view on the part of the decision-maker as to the quality or character of the significance of that primary consideration that is formed after considering the matters listed in s 8.4(4). That is to say, a proper determination, as required by the direction, as to the interests of the child will have within it an evaluative view as to the significance or otherwise of the effect upon the interests of each affected child. However, each of the factors listed in s 8.4(4), as matters to be considered in making a determination as to primary consideration (4), do not carry through as matters that must be taken into account in making the final decision. Rather, there must be consideration of them by the decision-maker when forming a view as to primary consideration (4) which, in turn, is the matter to which there must be regard in making the final decision.

(Emphasis in original)

So, for the purposes of considering whether there has been compliance with para 8.4(4) of the Direction, it is important to bear in mind that the requirement is to 'consider' the factors listed in the paragraph.

36    In Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, the High Court was concerned with a different question, namely the degree of engagement required on the part of the Minister when personally deciding whether to revoke the cancellation of a visa in the exercise of the power conferred by s 501CA(4) of the Migration Act. Although a delegate of the Minister would be required to apply the Direction in making such a decision, that was not the case where the Minister personally exercised the power. So, Plaintiff-M1 was not concerned with the meaning of the requirement in the Direction to consider various factors. Nevertheless, the High Court did draw upon other statutory contexts in reaching a conclusion as to the degree of engagement that was required with the representations that were provided to the Minister as part of the statutory scheme. The conclusion reached was that 'there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations': at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). This meant that 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. However, what was made clear was that the weight to be afforded the representations was a matter for the decision-maker. They could be given no weight at all. The degree of consideration required did not extend to an obligation to bring the matters in the representations into account as part of the deliberative decision-making process. As to this distinction, see also ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [9]-[10] (Mortimer CJ, Colvin and O'Sullivan JJ)

37    However, these authorities do not apply directly to the requirement imposed by the Direction to 'consider' the factors in para 8.4(4). The provisions in para 8.4(4) are not concerned with the degree of engagement required with representations (or contentions put to the decision-maker). Rather, they require the decision-maker to consider particular matters when making the determination required by the Direction as to the interests of minor children. As was explained in Nguyen, the requirement to consider is not a requirement to bring each of those factors into account in making the determination as to the best interests of minor children. It is the primary considerations that are required by the Direction to be brought to account in deciding whether to refuse the visa application in the exercise of the power conferred by s 501(1). In reaching a conclusion as to the significance of the best interests of minor children (as required by the Direction), the Tribunal could comply with para 8.4(4) of the Direction by considering a factor and then putting it to one side as not being of sufficient significance. It must act within the bounds of legal reasonableness in doing so. However, the Direction does not require each of the factors in para 8.4(4) to be brought to account in undertaking the ultimate evaluative task required by the Direction.

38    Recently in Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73, similar matters were considered, albeit in respect of different aspects of the Direction. In that case, Lenehan J (Perry and Stellios JJ agreeing) found that there was jurisdictional error based upon a failure to comply with the Direction. Applying language of the High Court in LPDT, his Honour described the Direction as imposing conditions governing the 'process of reasoning' to be undertaken in the exercise of a statutory power: at [33]. However, the focus of the case under consideration in DVRL was the terms of the Direction that required the decision-maker (again the Tribunal) to take into account 'certain of those mandatory considerations', with the focus being on the terms of paras 8.1.1 and 8.1.2: at [35]-[37]. Significantly, both those paragraphs deploy the 'must have regard to' language. One of the matters to which the decision-maker must have regard when it comes to primary consideration (1) was the likelihood of the visa applicant engaging in further criminal or other serious conduct. The Direction required regard to that aspect to be undertaken by 'taking into account' two matters listed in the Direction (see cl 8.1.2(2)(b)). Therefore, the process of reasoning required by the Direction when it came to primary consideration (1) was different to that required for primary consideration (4). It is the decision in Nguyen that describes the required process of reasoning when it comes to considering the factors listed in para 8.4(4) in reaching a conclusion as to the best interests of each child in Australia.

39    These matters have significance for Ground (1) (and also for Gound (2), see below). The Tribunal's obligation was to 'consider' the matters listed in cl 8.4(4). This did not require each of those matters to be brought into account in reaching a conclusion as to the best interests of the child.

40    It is convenient at this point to restate the terms of cl 8.4(4)(d) (being one of the factors that must be considered in forming a conclusion concerning the best interests of minor children in Australia). It is in the following terms:

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;

41    For Mr Mwambwa it was said that the Tribunal failed to confront in any meaningful way the effect that separation from her father would have upon Mr Mwambwa's daughter. Much was sought to be made of the way the Tribunal's reasons were expressed, particularly the failure to address the issue of separation in a distinct part of the reasons where findings were made concerning the matters that were required by cl 8.4(4) to be considered. For reasons that have been given, compliance with the Direction did not require reasoning of that kind. The Tribunal was not required to have regard to each of the matters listed in cl 8.4(4), nor was it required to include in its reasons express findings as to each of those matters. Rather, the Tribunal's task was to consider each of those matters. Precisely what must be done to comply with that requirement will depend upon the circumstances: Nguyen at [43]. As to whether a particular matter was considered in the required sense, there must be due regard to the reasons as a whole.

42    In the present case, it is significant that the form in which the reasons were expressed was to state expressly the matters that had led the Tribunal to conclude that the best interests of Mr Mwambwa's daughter 'weighs very heavily against the exercise of its discretionary power to refuse to grant the visa'. Further, the findings that the Tribunal made were expressed contextually by reference to the circumstances of the particular case and without categorising them by reference to the various matters listed in cl 8.4(4) of the Direction. The nature of the findings expressed in that manner is that they may relate to more than one of the factors to be considered. Reasoning in that way meant that the Tribunal brought the factors together and did not need to refer to factors that, on any view of the material were not applicable (such as factors (g) and (h) - concerned with instances where there was evidence of abuse, neglect or trauma at the instance of the visa applicant). There is nothing in the terms of the Direction that required the Tribunal to deal separately with each of the listed factors in order to comply with the Direction. Provided the Tribunal considered each factor, there was compliance. It will be a question of fact in each case as to whether the Tribunal did consider each factor.

43    Significantly, as has been mentioned, the view reached by the Tribunal was to the effect that the factors in para 8.4(4) weighed very heavily against refusal of the visa. The Tribunal's list of reasons must be viewed in that context. They are founded on an overall view that there would be significant adverse consequences for the best interests of Mr Mwambwa's daughter if his visa application was refused.

44    The following findings by the Tribunal accepted that it was in the best interests of the child that Mr Mwambwa not be separated from his daughter:

(1)    They 'share a strong bond';

(2)    Mr Mwambwa has 'cared for his daughter';

(3)    Mr Mwambwa resided with his daughter prior to being detained;

(4)    His daughter 'requires' the financial assistance of Mr Mwambwa to support the treatment that she needs;

(5)    His daughter 'requires' the assistance and support of Mr Mwambwa in meeting her 'support needs';

(6)    Mr Mwambwa 'intends to resume his parenting responsibilities' for his daughter if released.

45    Having made these strong findings to the effect that it is not in his daughter's best interests for Mr Mwambwa to be separated from her, it would not make sense for the Tribunal to provide reasons about maintaining remote contact. Implicitly, that prospect is put to one side. Not because it has not been considered, but because, on the findings made by the Tribunal, the best interests of Mr Mwambwa's daughter require him to be present, to maintain her fatherly relationship and to assist in meeting her support needs. This is the ordinary reading of the matters listed by the Tribunal as the basis for concluding that the best interests of Mr Mwambwa's daughter weigh very heavily against the exercise of the discretionary power conferred by s 501(1) to refuse the visa application.

46    It is difficult to see how the Tribunal could have reached such a strong conclusion if indeed it had not considered the effect of separation on Mr Mwambwa's child and had actually brought that to account. In order to comply with the requirement to consider the matters in para 8.4(4)(d) it was not necessary for the Tribunal to consider some form of alternative case and spell out in detail the impacts that would follow if Mr Mwambwa and his child were physically separated and could only maintain contact 'in other ways'. Implicitly, the Tribunal has accepted that any such limited or remote contact would not be in the best interests of Mr Mwambwa's daughter.

47    A submission was made to the effect that it was necessary for the Tribunal to consider not only the immediate effect of separation from Mr Mwambwa but also the effect over time, bearing in mind the young age of his daughter. I am not persuaded that the Tribunal's reasons should be construed as being confined as to time horizon, particularly not to an immediate time horizon. The relevant part of the reasons begins by stating: 'The Applicant has one minor age daughter, who is currently four years old'. The reference to the age of Mr Mwambwa's daughter at the beginning of the reasons shows that the Tribunal had considered and had in view the time horizon for which the daughter would be dependent upon her parents for affection, care and support.

48    Finally, a submission was made to the effect that the passage in the reasoning that Mr Mwambwa 'intends to resume his parenting responsibilities…if released' was hypothetical and was not a finding either way. It was submitted that it did not involve a consideration of the likely effect that separation would have on the child. The finding was not hypothetical as to what would occur. On the contrary, it was a finding that accepted the evidence of Mr Mwambwa as to his intentions to be involved as a father in the life of his daughter into the future.

49    In my view, the submissions advanced in support of Gound (1) were guided by an eye unduly attuned to error. On an ordinary reading of the reasons given by the Tribunal, it is necessarily implicit in each of the matters listed by the Tribunal that separation from the child's father would be detrimental, including because of Mr Mwambwa's strong bond with his daughter and his intention to resume his parenting responsibilities. I do not accept that more detailed reasons were required. For reasons I have given, I do not accept that there was a failure by the Tribunal to consider the factor in para 8.4(4)(d).

Ground (2): Alleged failure to apply parts of paragraph 8.4(4) of the Direction

50    Ground (2) claimed that there were three further respects in which the Tribunal failed to comply with the requirement to consider the matters in para 8.4(4) of the Direction.

51    First, it was contended that there was a failure to consider the likelihood that Mr Mwambwa would play a positive parental role 'in the future' as required by para 8.4(4)(b). In particular, it was said that there was no evident consideration of the very large period of time for which Mr Mwambwa's daughter would be deprived of personal support from a father if his visa application was refused. I do not accept that submission. The findings by the Tribunal are not temporarily limited. As I have explained, they were introduced by a sentence which referred to the daughter's young age. In context, the Tribunal's findings should be read as speaking over the duration of her childhood. They are not confined to a particular time horizon. They are expressed in terms that describe current circumstances. However, they provide no suggestion that the Tribunal is concerned as to whether those circumstances will continue. The matters referred to are accepted as the basis for a conclusion that they weigh heavily against exercise of the power to refuse a visa. That would only be the case if they were matters that, in the view of the Tribunal, would continue to pertain as between Mr Mwambwa and his daughter. These aspects of context sustain the implication that the findings are not temporarily limited.

52    Second, it was contended that there was a failure to consider 'any known views of the child' as required by para 8.4(4)(f). As the submissions acknowledged, given the very young age of Mr Mwambwa's daughter and her issues with speech, the materials did not include her own expression of her views. The thrust of the submission was to the effect that, in such circumstances, the Tribunal should have referred to other evidence as to the daughter's behaviour that manifested her views. However, even accepting the premise of the submission, I am not persuaded that Mr Mwambwa has established that such matters were not considered. The Tribunal found expressly that Mr Mwambwa and his daughter 'share a strong bond'. That language demonstrates a consideration of the daughter's views. Therefore, I do not accept the submission.

53    Third, it was contended that, in circumstances where there was no issue that Mr Mwambwa's daughter had particular support needs, the Tribunal's reasons disclosed a failure to consider 'the nature and duration of the relationship between the child and the non-citizen' as required by para 8.4(4)(a). It was said that given the particular demonstrated needs of his daughter, consideration of the nature and duration of Mr Mwambwa's relationship with his daughter invited 'more depth and investigation' than was revealed by the finding that they shared a strong bond in circumstances where he had cared for his daughter and resided with her before his detention. I regard this contention to be devoid of substance having regard to what was required in order to comply with the Direction. It is a complaint about the terms in which the Tribunal's finding was expressed in circumstances where the Tribunal made an express finding as to the nature and duration of their relationship thereby making clear that the Tribunal had considered that factor.

54    Therefore, Ground (2) has not been established.

Ground (3): Alleged failure to give Mr Mwambwa an opportunity to give oral evidence before being questioned by counsel for the Minister

55    Ground (3) alleges that there was procedural unfairness because Mr Mwambwa was not given an opportunity to give oral evidence before being questioned by the Minister. It was said that he was thereby deprived of being able to give his own persuasive account orally. It was submitted, in effect, that providing oral evidence 'in chief' was an important part of the case of an applicant before the Tribunal where an assessment of the case on the merits requires findings as to the credibility and reliability of the account of the applicant for review. Reliance was placed upon s 55(1)(c) of the Administrative Review Tribunal Act 2024 (Cth). Amongst other things, it provides that the Tribunal must ensure that each party has a reasonable opportunity to 'make submissions and adduce evidence': s 55(1)(c).

56    The contention advanced was to the effect that the way in which Mr Mwambwa was questioned deprived him of the opportunity to give evidence by not allowing him to give his own oral account before being questioned by counsel for the Minister. It was a broad submission to the effect that the Tribunal denies an applicant procedural fairness in any instance where the applicant is not allowed to give oral evidence 'in chief'. It also ranged into submissions about the duties to an applicant who appears in person. However, those submissions rested upon the underlying proposition to the effect that an applicant was required to be given an opportunity to adduce oral evidence before being questioned by counsel for the other party. It was only if such a right existed that there could be a duty to explain to a litigant in person that there was a right to give oral evidence in that way before being questioned. Consequently, it is the merits of that underlying proposition upon which Ground (3) depends.

57    The submission advanced by reference to s 55(1)(c) to the effect that an applicant who is not given an express opportunity to give oral evidence before being questioned by another party is denied a reasonable opportunity to present their case must be rejected. The statutory obligation is to afford each party a reasonable opportunity to adduce evidence. There is no suggestion that Mr Mwambwa was deprived of an opportunity to present evidence. The complaint made concerns the procedure followed by the Tribunal as to the manner in which oral evidence may be presented by an applicant appearing on their own behalf.

58    As has been mentioned, the Tribunal has a discretion as to its procedure: see s 49 of the Administrative Review Tribunal Act. It is to be expected that the Tribunal will exercise that discretion having regard to the circumstances of the case. In exercising its discretion as to procedure, it is to be expected that the Tribunal will afford procedural fairness, taking account of the statutory character of the Tribunal and the legislative provisions governing its decision-making authority. As in all cases, the legislative context is critical in determining what is required as a matter of procedural fairness: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). The requirements are not immutable and all depends upon the circumstances of the particular case: Assistant Commissioner Condon v Pompano Pty Ltd [213] HCA 7; (2013) 252 CLR 38 at [156] (Hayne, Crennan, Kiefel and Bell JJ). The touchstone is whether there has been practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] (Gleeson CJ).

59    The contentions advanced to support Ground (3) included a claim that Mr Mwambwa had been told at the outset of the hearing that he would have an opportunity to give evidence but he was not given that opportunity.

60    As to what Mr Mwambwa was told about the procedure, at the beginning of the hearing in the Tribunal, the Tribunal member explained the procedure that would be followed. In the course of doing so, the Tribunal member said (correcting minor typographical errors):

…when we commence the substantive part of the hearing I’ll have [counsel for the Minister] give the Tribunal a brief opening address, and he will assist the Tribunal and yourself by setting out the Minister's position on your case, and you’ll have an opportunity to do that same. If you need some assistance with that, I can assist you, so I don’t want you to worry about that too much. And after that time, we’ll have your evidence, so your affirmation's been taken, so you’ll promise to tell the truth. [Counsel for the Minister] will have some questions for you, and that’s where these documents come in.

61    And later in the same part of the hearing:

If you’ve got any questions as we go, please feel free to interrupt and ask. The same as when [counsel for the Minister] starts to ask a question, if you’re unsure what he’s asking, if you don’t know the answer you can say, ‘I don’t know.’ If you can’t remember something you can, ‘I don’t remember.’ That can be your answer. If you need something clarified, just ask, and if you need to have a break as well you can just say that you need to have a break and we can stand the matter down and you can have a bit of a break. So we’ve got time, so with yourself and one other witness, depending on how lengthy the questioning is, we might be able to conclude in a day. Otherwise if not we also have tomorrow available as well. So after the evidence gathering is complete, so after all the questions have been asked for yourself and for [Mr Mwambwa's partner], there will be closing submissions, in a similar way to the opening submissions.

62    I do not accept the submission that the Tribunal communicated to Mr Mwambwa that he would have the opportunity to give oral evidence before being questioned. Rather, it was indicated that his evidence would be taken.

63    Otherwise, the submissions for Mr Mwambwa had two threads. First, it was said to be unfair not to afford an applicant (at least an applicant in a case of the kind advanced by Mr Mwambwa where his own evidence as to the nature of his relationship with his daughter was of such importance) an opportunity to give evidence in chief and thereby persuade the Tribunal by his own account. Second, it was said that the way in which Mr Mwambwa was questioned meant that the procedure was unfair.

64    It is significant, in my view, that there was no attempt to develop a case that the procedure followed by the Tribunal in relation to the oral evidence given by Mr Mwambwa meant that relevant oral evidence was not put before the Tribunal. A case of that kind would have to confront the terms of s 500(6H) which states that in a review application of the kind brought by Mr Mwambwa: 'the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing'. Therefore, it could not be the case that Mr Mwambwa might have used an opportunity to present oral evidence that was not already before the Tribunal. Rather, Mr Mwambwa's case sought to emphasise the significance of a personal oral account for his review application.

65    Also of significance is the fact that much of what was relied upon by Mr Mwambwa was not in issue before the Tribunal, especially matters concerning his relationship with his daughter.

66    To the extent that Ground (3) rested on the broad contention that fair procedure required Mr Mwambwa to be given an opportunity to give 'evidence in chief' before being asked questions by counsel for the Minister, I do not accept such a broad proposition. It is not the case that fair procedure in all review proceedings conducted by the Tribunal (or even in all review proceedings of decisions made under s 501) requires such an opportunity. The appropriate procedure in each case is a matter for the Tribunal. Whether the procedure followed in a particular case was unfair will depend on the particular circumstances.

67    Mr Mwambwa conducted the proceedings before the Tribunal on his own behalf. He did not have a representative who could ask questions. It was possible for the Tribunal to ask some general questions before counsel for the Minister asked questions. In some instances, that may be appropriate. However, the Tribunal must also ensure that the manner in which questions are asked by the Tribunal member does not call into question the independence of the Tribunal. Equally, if the manner in which questions were asked by counsel for the Minister was considered to be unfair then the Tribunal could intervene and ask questions or require a different form of questions. Additionally, there may be reasons why the evidence of the applicant is not of particular significance for the decision to be made. The applicant's account may be generally accepted. These are all reasons why it could not be said that fair procedure in every case required an applicant to be given an opportunity to give oral evidence.

68    To the extent that Ground (3) rested on the contention that the way in which Mr Mwambwa was questioned meant he was not given a fair opportunity to provide oral evidence, for the reasons that follow, I do not accept that was the case. It was submitted for Mr Mwambwa that the questions that were asked of him by counsel for the Minister were directed towards being destructive of Mr Mwambwa's case. I do not accept that to be an accurate characterisation of the form of questions. They did not take the form of a cross-examination that might be expected as part of an adversarial curial process where credibility was under attack. Rather, most questions were asked in an open ended way and were designed to elucidate Mr Mwambwa's account as to certain matters, albeit as to aspects of the particular circumstances that might count adversely as against Mr Mwambwa, such as his insight into the consequences of his past behaviour and whether he had strategies to prevent repetition of that kind of behaviour. He was asked questions about the circumstances of his past offending that were designed to expose the details of that conduct. He was also asked about alleged incidents of domestic violence (after the privilege against self-incrimination was explained to him). However, he was not questioned in a manner that might be said to have restricted or constrained his opportunity to give his own account.

69    He was also asked in an open ended way whether he knew what formal supports his daughter needed. He gave a very long answer to that question.

70    There was no attempt to identify any aspect of Mr Mwambwa's oral evidence in answer to topics addressed by the questions that he was asked that was not received because of the way in which he was questioned by counsel for the Minister.

71    Respectfully, there were aspects of the submissions advanced which tended to draw upon what might be expected in adversarial proceedings when it came to adducing evidence. Such an approach is not appropriate when it comes to inquisitorial decision-making of the kind contemplated by the relevant provisions in the Migration Act which regulate the Tribunal's jurisdiction in cases like the present: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [24].

72    For those reasons, Ground (3) has not been established.

73    I note that the Minister pointed to the fact that at the end of the hearing the Tribunal member asked Mr Mwambwa whether there was anything else he wanted to say and he responded to the effect that he had been able to speak up and say the important things that he wanted to say. This exchange occurred after the Tribunal member had indicated that the hearing was at an end and were raised '[j]ust before we adjourn'. Had I been persuaded that the procedure that had been followed as to the questioning of Mr Mwambwa was unfair, I doubt that an opportunity of that kind would have redressed any such unfairness. By then, the questioning process would have been undertaken and closing submissions would have been made. Which is not to say that providing such a further opportunity is not good practice. Rather, it is to recognise that an opportunity of that kind is unlikely to redress what was otherwise an unfair procedure as to the way in which oral evidence from an applicant on review was received by the Tribunal.

74    However, the statements made by Mr Mwambwa at the end of the hearing indicate that there was no further matter that he wanted to put before the Tribunal.

Ground (4): Alleged failure to put to Mr Mwambwa the possibility of an adverse finding as to lack of remorse based on his evidence about a course concerning domestic violence

75    As was mentioned in referring to the reasoning pathway of the Tribunal, in dealing with primary consideration (1), the following finding was made by the Tribunal (para 109, quoted again for ease of reference):

Having regard to paragraph 8.2(3)(c) of [the Direction], while the Applicant expressed that he knew how much he hurt [his partner] and that he had apologised to her for his violent offending, he also initially denied having assaulted her and his claimed remorse appears to be more related to how violent offenders are perceived in the community (everyone will see you in a different way') and from his desire to remain in Australia.

76    The contention advanced in support of the ground was to the effect that the Tribunal's finding was not an obvious and natural evaluation of the circumstances referred to by the Tribunal in making the finding. It was claimed that there was procedural unfairness as to the finding by the Tribunal that his claimed remorse was not sincere based upon the matters referred to in para 109 of the Tribunal's reasons.

77    In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, the High Court found that the Tribunal did not accord procedural fairness because it did not give the applicant party 'a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of three determinative issues arising in relation to the decision under review' conducted by the Tribunal: at [44] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). In doing so, the High Court made three further general points (at [47]-[49]):

(1)    There may be many ways by which the Tribunal may give a sufficient indication that everything an applicant says in support of the application is in issue. 'It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted';

(2)    'Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment'; and

(3)    '…even if the issues that arise in relation to the decision under review are properly identified to the applicant, there may yet be cases which would yield to analysis in the terms identified by the Full Court of the Federal Court in Alphaone. It would neither be necessary nor appropriate to now foreclose that possibility'.

78    The case reference in the third point is to Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 where the Full Court (Northrop, Miles and French JJ) said:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question

79    Earlier, the Full Court referred to a statement by Jenkinson J in Somaghi to the effect that an applicant for review 'is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material': at 591.

80    Therefore, having regard to the third point made by the High Court in SZBEL there is some uncertainty as to whether it is appropriate to articulate the requirement to afford procedural fairness in terms that would require the Tribunal 'to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made to was found' and to respond to a conclusion which 'is not an obvious and natural evaluation of that material'. These propositions appear to be those about which the High Court did not foreclose the possibility that they describe circumstances that would give rise to procedural unfairness, but equally did not embrace that form of language.

81    Separately, it has been determined that '[o]rdinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of ... the issues to be considered in conducting the inquiry: Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [83] (Fench CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).

82    The authorities as to what is required in order to afford procedural fairness when it comes to matters that may or may not be expected by an applicant to be in issue were recently reviewed in Minister for Immigration and Citizenship v LLR24 [2026] FCAFC 26; (2026) 315 FCR 297 at [41]-[50] (O'Sullivan, McElwaine and Hill JJ). The Full Court there concluded that where the Tribunal identified a new issue on review 'it is necessary for the Tribunal at least to notify the review applicant of this new issue, and invite them to respond': at [60]. The focus was upon the procedural obligation to ensure that an applicant had an opportunity to know and understand and hence respond to the issues that were likely to have significance for the outcome of the decision to be made by the Tribunal. By reason that the proceedings in the Tribunal would be a review of a decision by another decision-maker, an applicant would be on notice of issues raised in the context of the making of the previous decision. Otherwise, as to new issues of significance raised in the Tribunal, procedural fairness requires that there be some mechanism by which the new issue is drawn to the attention of the applicant. It appears that the issues in respect of which notice may be required to be given extend to an unexpected basis upon which the Tribunal may question the credibility of the account given by the applicant.

83    Ground (4) was advanced on the basis that the manner in which the adverse finding was made concerning the lack of sincerity in the remorse expressed by Mr Mwambwa was to undertake a form of reasoning that was not an 'obvious and natural evaluation' of the circumstances, thereby adopting the language of Jenkinson J quoted in Alphaone. However, for reasons that I have given, the use of that language could not be the foundation for some new principle beyond that concerned with ensuring that a party was put on notice of the issues. The reason why a person may not have notice of an issue may be because a form of reasoning that may be adopted by the Tribunal is not a natural and obvious form of evaluation.

84    The Minister's position was that the finding was a natural conclusion for the Tribunal to draw in respect of an aspect of Mr Mwambwa's account that was in issue.

85    Mr Mwambwa was asked about a police statement of material facts as to his offending which included a statement that Mr Mwambwa had been in the rear passenger seat of a car seated next to his partner when he had become angry towards his partner. Mr Mwambwa had thrown his partner's phone from the car and began punching her to the head and then put her in a choke hold. Mr Mwambwa agreed that the police statement of material facts was an accurate reflection of what happened. Mr Mwambwa then gave the following evidence in response to questions from counsel for the Minister:

What do you think was a possible consequence of choking [your partner] in the manner that you did?---The consequences on her side, or?

Yes. So what do you think could happen when you’re choking somebody like that?---Well. You choke someone like that, probably they can die. Or faint or something.

How do you think that [your partner] feels about this event today?---Well it happened, like, a while ago, and then me I’ve already apologised to her, which after the incident we had a kid and then we have been living together since the incident. So I did have apologise to her and then her she forgive me, as when we got our own house and then we started supporting our own daughter, from that incident. I’m not too sure how she is feeling now, but because we had the baby after the incident happen, then I apologise to her, that’s when we decided to have a baby, and then we decided to get a rental together so that I can be there to support my baby with her.

86    Therefore, questions were raised in an open-ended manner that sought to elicit evidence from Mr Mwambwa as to his insight into the consequences of his offending. It was a natural consequence of questions of that kind that the Tribunal might be expected to evaluate and assess the veracity of that account.

87    Mr Mwambwa was then asked about an aspect of the sentencing remarks of the magistrate where it had been said that strangulation was an action which had been regarded as a red flag for homicide in domestic violence literature. The Tribunal member provided an explanation. Mr Mwambwa said that he disagreed with that.

88    Later, Mr Mwambwa was asked about a domestic violence and abuse awareness course that he had undertaken. He was asked what specific skills and strategies he had learned from the course. Mr Mwambwa gave the following answer:

Well, domestic violence I learn that domestic violence is like, it’s no good for – it’s not just good for us, can I say, this is not – can I just say it’s no good. Domestic violence is not good, like, for everyone, like, we’re not supposed to, like, to do any domestic violence, because that’s hitting someone or what I would just have to explain what I’ve learned about domestic violence to be honest is just not good for the community. That’s what I’ve learned, it’s no good for the community. Because if you do domestic violence everything in your life will be just falling apart. They not going to see you the same, because you are violent, they don’t want – you don’t want to be – you’re not going to be around people, around other kids, because everyone will think you are too violent to be around with. So it’s just some impact, the way you going to lead your life. And then you are not going to go far in life because of the domestic violence. Everyone is going to see you in a different way because of the domestic violence.

89    It is the last sentence of that answer that was quoted by the Tribunal in para 109, namely 'everyone will see you in a different way'. It is this aspect of the finding that was said to involve an evaluation of the evidence that was not obvious and natural. The submission was that the reasoning used an answer about what Mr Mwambwa had learned from a training course as a basis for reaching a conclusion as to his remorse and that such use was not obvious and natural.

90    Mr Mwambwa's account of his insight into his past criminal behaviour and whether he was remorseful were matters that were obviously in issue on an application where it was his offending that was at the heart of why his visa application was refused. In that context, I do not regard the use by the Tribunal of Mr Mwambwa's answer about what he had learned from the course he undertook as being relevant to an evaluation of his remorse as being unexpected or unnatural. In terms of procedural unfairness, the Tribunal's reasons did not raise a new issue, or an unexpected basis upon which findings as to whether he was remorseful may be made by the Tribunal.

91    For those reasons, Ground (4) has not been made out.

Ground (5): Alleged failure to put to Mr Mwambwa the possibility of an adverse finding as to lack of remorse based on evidence he gave about the effect on his partner of his past assault on her

92    In dealing with the nature of the harm if Mr Mwambwa was to reoffend (as part of its evaluation of matters relevant to primary consideration (1)), the Tribunal reasoned as follows (paras 93 and 94):

The Tribunal finds that the fact that the Applicant’s feelings toward his violent offending were that it happened a while ago, he had apologised to [his partner] and she had forgiven him indicates that her forgiveness somehow alleviates the need for him to acknowledge the significant harm his offending ultimately and undoubtedly caused.

In the Tribunal’s view, should the Applicant commit further similar violent and traffic offences, this would further result in very serious harm that may cause considerable and widespread psychological and emotional harm to members of the Australian community.

93    Mr Mwambwa contended that the finding was 'paradoxical' as it had never been suggested to Mr Mwambwa that he did not acknowledge the harm he had caused or that his relationship with his partner 'somehow alleviated' anything. Consequently, so it was said, the finding was not an obvious and natural finding and its prospect should have been put to Mr Mwambwa as a matter in issue.

94    I have dealt with the applicable principles in dealing with Ground (4).

95    The contentions advanced to support Ground (5) tended to be based on a view that there was some form of false logic in the Tribunal's reasoning. Yet, the challenge raised was not one of unreasonableness or illogicality. To be clear, I do not regard the Tribunal's reasoning at para 93 to be amenable to a criticism of that kind. There is a difference between the offering and acceptance of an apology and the insight into the harm caused by the conduct the subject of the apology. The evidence referred to by the Tribunal was given by Mr Mwambwa in response to a question concerned with whether he had insight into the harm to his partner caused by his past criminal conduct.

96    As with the complaint raised by Ground (4), the relevant finding goes to the heart of the issue on the application, namely the significance of Mr Mwambwa's past offending for his application. As with Ground (4), the Tribunal's reasons did not raise a new issue, or an unexpected basis upon which findings as to his insight into the harm caused by his offending may be made by the Tribunal.

97    For those reasons, Ground (5) has not been established.

Ground (6): Alleged misconstruction of s 500(6J) in refusing to receive a report concerning Mr Mwambwa's daughter

98    Mr Mwambwa's partner, the mother of his young daughter, gave oral evidence to the Tribunal. She was asked a number of questions concerned with the needs of their daughter. At the end of her evidence there was the following exchange with the Tribunal member. It begins with a question from Mr Mwambwa's partner (minor typographical errors corrected):

Just before we finish up, I do have [my daughter's] – you’ve probably already got a copy, but I’ve got [my daughter's] both reports printed out here from two professional’s that she saw. I’ve also got my impact letter on me, and Willow. And I’ve also got my statement, and I don’t know if you guys wanted to keep this copy…I believe I sent them to [Mr Mwambwa] to upload as evidence, but I just brought them just in case of, like - - -

TRIBUNAL: If they’re letters that are already within the…(audio malfunction) letters or documents that have come into existence after the directions for Mr Mwambwa to file evidence with the Tribunal has passed. The Tribunal can’t take them now that it’s within more than two business days.

…

This one here, you guys don’t have a copy of it. These letters here are the ones I just kept them when she sends them in the letter box. They’re the free appointments she’s been attending.

TRIBUNAL: Okay.

So it’s got the dates she has been going. So she has only had four so far, but yes, like, those are the ones she attends free of charge.

TRIBUNAL: That’s okay. Because of the timeframes for receiving documents, the Tribunal can’t take those documents in. But I don’t think there’s going to be any dispute – I can’t imagine the Minister's going to take any issues with the fact that [your daughter] has been attending those appointments. The nature of them, what she gains from them, what you say she does there, that’s all accepted.

Yes, cool

TRIBUNAL: So there’s no dispute about that. But I appreciate you brought those in.

That’s okay.

TRIBUNAL: There’s nothing lost or there’s no disadvantage to them not being tendered and given a number and that type of thing.

99    The error alleged to be exposed from this exchange was a misconstruction or misapplication of s 500(6J) of the Migration Act. It forms part of a series of provisions that modified the procedure before the Tribunal where a review was sought of a decision made in the exercise of the discretionary power conferred by s 501(1) (or s 501CA(4)). It provides that the Tribunal, must not have regard to any document submitted in support of the person's case unless a copy of the document was 'given to the Minister at least 2 business days before the Tribunal holds a hearing'. It is well established that the provision does not apply where the document is to be elicited by way of response to questions put to an applicant in the course of the hearing conducted by the Tribunal': Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [44] (French CJ, Keifel, Bell and Keane JJ) and [99] (Nettle J).

100    One of the documents referred to by Mr Mwambwa's partner in the exchange with the Tribunal member was a report from a speech pathologist that was not before the Tribunal. It was a report that was subsequent to an earlier report that was before the Tribunal. It was submitted for Mr Mwambwa that the further report contained updated (or more contemporaneous) information concerning the support needs and care of his daughter.

101    The Minister's primary submission as to Ground (6) was to the effect that the Minister's case before the Tribunal did not challenge the position advanced by Mr Mwambwa that his daughter had particular support needs and required therapy by reason of delayed speech. The Minister contended that the additional report was not responsive to any case advanced by the Minister. Therefore, the case was not like Uelese. I accept these submissions.

102    The Minister made a further submission in response to a contention advanced for Mr Mwambwa to the effect that the Tribunal's erroneous absolutism as to the operation of s 500(6J) caused the Tribunal to fail to consider the possibility that the Tribunal could adjourn the balance of the hearing for two days and then receive the document (and, as a result, not even looking at the document).

103    However, this aspect of the contentions advanced in support of Gound (6) depended upon the proposition that the matters in the additional report would be of relevant assistance to the Tribunal on a matter in issue. The Tribunal approached the matter on the basis that the documents referred to by Mr Mwambwa's partner at the end of her oral evidence did not contain further information that would be relevant to the Tribunal's deliberation in circumstances where the Minister did not dispute the care needs of his daughter. As I have explained, the Tribunal was correct in that view.

104    Therefore, Ground (6) has not been established.

Ground (7): Alleged failure to undertake balancing and evaluation of considerations as required by the Direction

105    The contention advanced for Mr Mwambwa as to Ground (7) was to the effect that the Tribunal made the same error as was found to have been made in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (Colvin, Stewart and Jackson JJ). In CRNL, it was found that there was jurisdictional error by the Tribunal in failing to comply with the direction that applied at that time because of a failure by the Tribunal to undertake the required process of weighing the various considerations that the direction required the Tribunal to take into account. Significantly for present purposes, CRNL was a case where the Tribunal listed its conclusions as to the weight to be afforded each of the primary considerations and then reasoned as follows:

The Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.

106    In those particular circumstances, the form of reasoning was described as 'stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula': at [38].

107    The following conclusion was reached (at [43]):

…there is nothing in the concluding section of the Tribunal’s reasons, or indeed anywhere, which reveals any process of balancing and evaluation. Nor is there anything which demonstrates that in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various 'other considerations'. After summarising, and rephrasing, its earlier ascription of descriptors of weight to each of the primary considerations, the Tribunal then simply concluded…by use of the words 'therefore' and 'consequently' that the visa cancellation should not be revoked. Such a conclusion does not inevitably or necessarily follow from those unexplained, un-balanced and un-weighed descriptors of weight; it may be that such a conclusion is justified by what preceded it but it is not apparent that the Tribunal undertook the required process of evaluation in order to reach its decision. It is not even apparent that the Tribunal considered that the weight of all the primary considerations were compelling against revocation of the cancellation of the visa, since it placed 'significant weight' on one of those considerations, the interests of minor children, as favouring revocation.

108    In considering whether the Tribunal has undertaken the weighing task, there must be due regard to the evaluative nature of the task which requires a bringing together of the considerations. Reasoning to a conclusion by way of synthesis is 'inherently difficult to break down to discreet logical steps' and 'does not call for calculus or syllogistic reasoning': BAE23 v Minister for Home Affairs [2023] FCA 1152 at [51] (Jackson J), approved and applied in Ash v Minister for Immigration and Citizenship [2025] FCAFC 174 at [49] (Colvin, Stellios and Hill JJ).

109    A contention was advanced to the effect that, in the present case, it was not possible to discern the way the various considerations had been weighed. In particular, so it was submitted, it was not possible to see why the best interests of Mr Mwambwa's daughter were outweighed by the circumstances that pertained to the other considerations. It was said that the Tribunal approached its task formulaically.

110    The reasons of the Tribunal in the present case took a very different form when compared to those in CRNL. The relevant part of the Tribunal's reasons began by referring to CRNL. The Tribunal then recorded in terms that could not be criticised the nature of the requirement in the Direction to weigh and balance the various considerations. The reasons then stated expressly that the Tribunal had compared and balanced the considerations (para 160). While statements of this kind may be found to be mere recitations of a formulaic kind, in the present case the Tribunal then set out the conclusion that it had reached as to each of the considerations. It then stated that it had weighed the primary and other considerations against each other and concluded that primary considerations (1), (2) and (5) 'warrant the very heavy weight' that the Tribunal had placed upon them (paras 171 and 172).

111    Significantly, the Tribunal then said as to primary consideration (4), being the best interest of a minor child in Australia (para 173):

The Tribunal emphasises that it remains so satisfied in circumstances where it has found that the fourth primary consideration weighs very heavily against it exercising its discretionary power to refuse to grant the visa and acknowledges that this is a finely balanced case in this regard.

112    The recording, at this point, of the Tribunal's view that the case is 'finely balanced' is significant. It indicates that despite the view that the Tribunal has formed that each of primary consideration (1), (2) and (5) warrant the very heavy weight attributed to them by the Tribunal as consideration in favour of refusal, the very heavy weight afforded to primary consideration (4) as a consideration against refusal is such that the case is 'finely balanced'. In context, that statement counts strongly against any mathematical or formulaic approach.

113    The Tribunal then reasoned (para 174):

Therefore, while the considerations weighing in favour of the Tribunal exercising its discretionary power to refuse to grant the visa are equal in number to those weighing against the Tribunal exercising its discretionary power, the Tribunal is satisfied that the very heavy weight afforded to the first, second and fifth primary considerations gives the result that they carry, overall, greater weight than the considerations weighing against the Tribunal exercising its discretionary power to refuse the visa.

114    In context, the passage quoted above involves a rejection of a mathematical approach. The reference to considerations being equal in number reflects the findings by the Tribunal as to primary consideration (3) ('slightly against' refusal) and another consideration concerning impediments if Mr Mwambwa was removed from Australia ('slightly against' refusal). Taking account of the observed difficulty in articulating the way various considerations have been weighed against each other, I am satisfied, based on the content of the Tribunal's reasons, that the Tribunal in fact undertook the required weighing exercise.

115    Therefore, Ground (7) has not been established.

Outcome and orders

116    For reasons I have given, I have not accepted the claims of alleged jurisdictional error in the Tribunal's decision. It follows that his application must be dismissed.

117    As to costs, Mr Mwambwa's application for review was commenced on 2 April 2026. It was listed for hearing on 22 June 2026. Mr Mwambwa was being held in immigration detention. On or about 10 June 2026, Mr Mwambwa was given a document entitled 'notice of intention to remove from Australia'. It included the following statement:

Arrangements have been made for your removal. It is anticipated that you will be removed from Australia on or after Thursday 25/06/2026. The Department will monitor these arrangements until your departure to ensure your removal can be effected as intended, including confirming that valid travel documentation is available, that you are medically fit to travel and that you do not have any outstanding legal matters impacting on your removal.

118    The notice referred to a number of consequences for Mr Mwambwa's ability to re-enter Australia if he was removed.

119    Mr Mwambwa applied for an interlocutory injunction restraining his removal pending the outcome of his application for judicial review of the Tribunal's decision. It came on for hearing on 22 June 2026 (being the date listed for the substantive determination of the application). At that time, counsel for Mr Mwambwa indicated that a copy of the transcript of proceedings before the Tribunal had been obtained and that leave would be sought to add further grounds of review based upon matters evident from the transcript. It was proposed that there be an injunction for a short time and that the final hearing take place on 6 July 2026. The Minister opposed that course. The substantive hearing and the application for injunctive relief were both adjourned to the following day.

120    Urgent steps were taken by counsel for Mr Mwambwa to file amended grounds and submissions in support of the application for injunctive relief. Submissions were filed by the Minister in opposition. In the course of oral submissions in support of the application counsel for the Minister indicated that instructions had been received not to oppose the grant of injunctive relief on the basis that a final hearing would occur on 6 July 2026. That is the course that has been taken.

121    Appropriately, the Minister accepts that an order should be made in the applicant's favour as to the costs of and associated with the interlocutory injunction. Otherwise, the Minister having been successful, the Minister is entitled to the costs of the application. Generally, in cases of this kind, it is appropriate to fix costs and the Court is often asked to do so. I am persuaded that is the appropriate course in the present case. Allowing for a setoff for the costs associated with the injunction, there should be an order that the applicant pay the Minister's costs fixed in the amount of $4,000.

122    There should be a further order discharging the injunction with effect from 24 July 2026.

Associate:

Dated:    16 July 2026