Federal Court of Australia

CUD21 v Minister for Immigration and Citizenship [2026] FCA 999

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Originating Application filed 20 April 2026 be dismissed.

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

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

REASONS FOR JUDGMENT

DOWNES J:

1    The applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 24 October 2025 which affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) visa (SHEV) under s 501(1) of the Migration Act 1958 (Cth).

2    The applicant is a member of the “NZYQ Cohort”, having been released from immigration detention following the decision of the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37.

3    The applicant was born in Vietnam in 1989. He arrived on Christmas Island in 2013 as an irregular maritime arrival and was released into the Australian community in 2014.

4    On 4 September 2017, the applicant applied for a SHEV. On 3 June 2021, a delegate of the Minister refused to grant the SHEV. On 14 July 2021, the Immigration Assessment Authority (IAA) affirmed that delegate’s decision.

5    On 18 August 2021, the applicant sought judicial review of the IAA’s decision in the Federal Circuit and Family Court of Australia (Division 2). On 30 August 2024, that Court issued a writ of certiorari quashing the decision of the IAA and a writ of mandamus directed to the IAA to redetermine the review according to law.

6    On 26 August 2021, the applicant was convicted in the District Court of Queensland of trafficking and possession of drugs. He was sentenced to five years’ imprisonment, suspended for five years after serving 12 months in custody.

7    The applicant’s SHEV application was remitted to the Tribunal because the IAA was abolished. On 8 February 2025, the Tribunal set aside the delegate’s refusal decision and substituted it with a decision that the applicant satisfied the criteria for protection under s 36(2)(a) of the Migration Act. The Tribunal remitted the SHEV application to the Minister for reconsideration.

8    On 14 March 2025, the Department of Home Affairs issued a notice to the applicant advising of its intention to consider refusal of his SHEV application under s 501(1) of the Migration Act. The applicant responded to that notice on 19 March 2025.

9    On 4 August 2025, a delegate of the Minister refused to grant the applicant a SHEV in reliance on the power in s 501(1) of the Migration Act. On that same day, the applicant was issued a Class WR Bridging R (subclass 070) visa, allowing him to remain in the Australian community.

10    On 6 August 2025, the applicant applied to the Tribunal for review of the delegate’s decision. That application was heard by the Tribunal on 9 and 10 October 2025. There was no dispute before the Tribunal that the applicant did not pass the character test on the basis that he had a substantial criminal record for the purposes of s 501(6)(a) of the Migration Act.

11    The Tribunal made a decision affirming the delegate’s refusal decision on 24 October 2025. It found, in its consideration of the primary and other considerations set out in Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 110), the strength and duration of ties to Australia, the best interests of minor children in Australia, and the legal consequences of the decision, all weighed in favour of not refusing to grant the visa. However, the Tribunal concluded that the considerations of the protection of the Australian community, family violence, and the expectations of the Australian community weighed in favour of refusing to grant the visa and ultimately outweighed the other considerations.

12    On 27 November 2025, the applicant applied for judicial review of the Tribunal’s decision. He obtained the benefit of pro bono assistance, including from counsel. The Court thanks the applicant’s legal representatives for their helpful submissions.

Ground of Review

13    The sole ground of review is that the Tribunal “misdirected, and fettered, itself” in exercising the discretion conferred by s 501(1) of the Migration Act by reference to cl 7(2) of Direction No. 110.

14    This ground is based on the statement at [159] of the Tribunal’s reasons that “the primary consideration at clause 8.1 [protection of the Australian community] must be given greater weight than the other primary considerations, and the other primary considerations given greater weight than the other considerations”.

15    Clause 7(2) of Direction No. 110 provides as follows:

(2)    The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(Emphasis added.)

16    As a matter of proper construction, the requirement at cl 7(2) that greater weight will generally be given to the primary consideration at cl 8(1) than to the other primary considerations, and to the primary considerations than to the other considerations, means that there must be some matter specific to the circumstances of the case to justify a departure from that hierarchy. In particular, there must be a reason why, in the particular case, a primary consideration other than the one at cl 8(1) should be given greater weight than it would ordinarily receive (being less weight than the primary consideration at cl 8(1)), or why one of the other considerations should be given greater weight than it would ordinarily receive (being less weight than the primary considerations): see FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 (O’Callaghan and Colvin JJ) at [10].

17    The applicant submits that, in circumstances in which the Tribunal did not direct itself to the wording of cl 7(2), notwithstanding that it directed itself to other parts of Direction No. 110, and where it otherwise used the word “must” when referring to mandatory considerations (referring to [18], [21], [33], [51], [69], [75], [101], [138], [150] and [154] of the Tribunal’s reasons), the Tribunal misunderstood, and thereby fettered the exercise of, its discretion by proceeding on the basis that the primary consideration at cl 8(1) must be given greater weight than the other primary considerations, and that the other primary considerations must be given greater weight than the other considerations. The Minister accepts that, should I conclude that the Tribunal did so misdirect and fetter itself, such an error would be material.

18    In support of its contention, the applicant relies upon the observations of Tracey J in Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303. In that case, the applicant alleged that the tribunal had misdirected and thereby fettered itself in the exercise of the discretion conferred by the Migration Act, by proceeding on the basis that it was bound to give less weight to other considerations than to primary considerations where the correct position was that other considerations should “generally” be given less weight than primary considerations: [26].

19    However, this case is distinguishable. Justice Tracey’s conclusion that the Tribunal had misdirected itself did not arise merely because the Tribunal used the word “must” ambiguously on one occasion. Rather, his Honour relied upon the fact that nowhere in its reasons did the Tribunal quote or accurately paraphrase the relevant clause of the Direction and that, on each of the four occasions it referred to the clause, it omitted the word “generally” or otherwise misstated its effect. The impression of misdirection was then compounded by the Tribunal’s express reliance on the proposition that it “must give less weight” to the other considerations as a reason why those considerations could not outweigh the primary considerations.

20    The Minister contends that when the Tribunal’s reasons are considered fairly and as a whole, it is apparent that the Tribunal understood its statutory task and did not misdirect or fetter itself.

21    The Minister sought to rely on the decision of Milne v Minister for Immigration and Citizenship (2010) 52 AAR 1; [2010] FCA 495 at [47]-[48] (Gray J). However, as counsel for the Minister properly conceded, that case is distinguishable on the basis that the tribunal in Milne expressly (and correctly) paraphrased the relevant provision. By contrast, the Tribunal in this case made no explicit reference to cl 7(2) anywhere in its reasons.

22    As the present case falls outside the four corners of both Schuster-McFadyen and Milne, the appropriate course is not to seek to force the Tribunal’s reasons into one category or the other by close comparison with the facts of those cases. Rather, the task is to examine the Tribunal’s reasons fairly and as a whole, in order to determine whether it misunderstood cl 7(2) and thereby fettered the exercise of its discretion.

23    To determine whether that is so, it is convenient to set out the Tribunal’s findings as to the weight attributable to the various considerations under Direction No. 110 and its ultimate conclusion:

CONCLUSION

156.    As noted above, the Applicant does not pass the character test under section 501 of the Act, and the Tribunal has to decide whether the discretion in s501(1) to refuse to grant the visa should be exercised, having regard to the Direction.

157.    The Tribunal has given appropriate weight to information from independent and authoritative sources, and the primary consideration at clause 8.1 has been given greater weight than the other primary considerations, while the other primary considerations have been given greater weight than the other considerations, in line with the Direction. The Tribunal has also taken the principles set out in 5.2 of the Direction into consideration

158.    Having considered the specific circumstances relating to the Applicant, the Tribunal considers the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of refusing to grant the visa. The family violence committed by the Applicant provides some limited weight in favour of refusing to grant the visa. The strength, nature and duration of the Applicant’s ties to Australia provides moderate weight in favour of not refusing to grant the visa, and the best interests of minor children in Australia affected by the decision provides significant weight in favour of not refusing to grant the visa. The expectations of the Australian community provide significant weight in favour of refusing to grant the visa. Of the other considerations, the legal consequences of the decision provides some weight in favour of not refusing to grant the visa. The extent of the impediments to the Applicant if removed and the impact on Australian business interests neither weighs for nor against refusing to grant the visa.

159.    While there are considerations that weigh in favour of the Applicant including the strength, nature and duration of his ties to Australia, and the best interests of minor children in Australia, and the legal consequences of the decision, the primary consideration at clause 8.1 must be given greater weight than the other primary considerations, and the other primary considerations given greater weight than the other considerations, and taking into consideration the principles set out in 5.2 of the Direction, the Tribunal has concluded the primary considerations of the protection of the Australia [sic] community, conduct engaged in constituting family violence, and the expectations of the Australian community weigh heavily in favour of refusing to grant the visa, and on balance, outweigh the considerations in favour of not refusing to grant the visa.

160.    Having weighed up all the factors as part of a single evaluation, the Tribunal is satisfied the discretion in s 501(1) to refuse to grant the visa should be exercised, having regard to the Direction.

24    In my view, when read in context, the statement at [159] that “the primary consideration at clause 8(1) must be given greater weight than the other primary considerations, and the other primary considerations given greater weight than the other considerations” does not disclose a misunderstanding of cl 7(2).

25    At [156], the Tribunal correctly identified its task as determining whether the discretion in s 501(1) should be exercised “having regard to” Direction No. 110. It then undertook an evaluation of each of the primary and other considerations separately at [158], where it assessed the weight attributable to each consideration. It concluded that the consideration at cl 8(1) attracted heavy weight; that the other primary considerations attracted limited, moderate or significant weight; and that the other considerations attracted either some weight or none at all.

26    Read in that context, the statement in [157] that the primary consideration at cl 8(1) had been given greater weight than the other primary considerations, and that the other primary considerations had been given greater weight than the other considerations, reflects the outcome of that evaluative exercise. That conclusion is fortified by the opening sentence of [157] which adopts words from cl 7(1) when referring to what the Tribunal has done. When the first sentence of [157] is read as a whole, it is apparent that the Tribunal is identifying what it has done and its statement at the end of that sentence that this is “in line with the Direction” is an observation that, in this case, the course actually taken by the Tribunal mirrors the general approach identified in cl 7(2).

27    Taking this into account as well as the subsequent summary of the evaluation conducted by the Tribunal in [158], the statement in [159] is best understood as describing the weighting that the Tribunal had in fact assigned to the competing considerations, rather than an indication that it considered itself bound, irrespective of the circumstances at play, to accord greater weight to considerations ranked higher in the hierarchy established by cl 7(2).

28    That is to say, read as a whole, the reasons reveal that the Tribunal’s assessment of the individual considerations happened to produce a weighting consistent with the hierarchy contemplated by cl 7(2), which the Tribunal itself recognised at [157].

29    For these reasons, the applicant did not establish that the Tribunal assigned the weighting that it did because it considered itself bound to do so, and so did not misdirect, and fetter itself, in the exercise of the discretion.

Conclusion and disposition

30    For these reasons, the Amended Originating Application will be dismissed with costs.

Associate:

Dated:    29 July 2026