Federal Court of Australia

Martin v Minister for Immigration and Citizenship [2026] FCA 1027

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to rely on the amended originating application.

2.    The amended originating application be dismissed.

3.    The applicant is to pay the costs of the first respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    This is an application for judicial review of a decision of the Administrative Review Tribunal (Tribunal) made on 1 August 2025 affirming a decision of a delegate of the first respondent (Minister) to not revoke the cancellation of the applicant’s Class TY (subclass 444) Special Category (Temporary) visa (temporary visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2    In his written submissions the applicant, who was legally represented, sought leave to rely upon an amended originating application filed out of time in which he only now presses a single ground of appeal, namely that the Tribunal failed constructively to exercise jurisdiction by failing properly to apply the test required under primary consideration 4 of Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA of the Act (Direction), being the best interests of minor children in Australia (primary consideration 4). The applicant’s application for leave was not opposed by the Minister.

3    The second respondent filed a submitting appearance except as to costs.

4    I am satisfied that the applicant’s application for leave to rely on the amended originating application should be granted but for the reasons that follow the amended originating application should be dismissed.

B.    Background

5    The applicant is a citizen of New Zealand. He first arrived in Australia in March 1988 at the age of eight.

6    On 1 September 1994, the applicant was granted a temporary visa.

7    On 12 October 2011, after being found guilty of murder, the applicant was sentenced in the Supreme Court of New South Wales to a term of imprisonment of 20 years, with a non-parole period of 15 years (subject to supervision). On the same date and in relation to the same incident, the applicant was also sentenced to a term of imprisonment of 2 years in relation to the offence of reckless wounding and 6 months in relation to the offence of assault.

8    On 7 July 2020, the applicant was issued with a notice by a delegate of the Minister that his visa had been cancelled under s 501(3A) of the Act on the basis that he did not pass the character test given his “substantial criminal record”.

9    On 14 July 2020, the applicant made representations seeking revocation of the cancellation decision.

10    On 13 May 2025, a delegate of the Minister, pursuant to s 501CA(4) of the Act, decided not to revoke the mandatory cancellation of the applicant's visa. The applicant was notified of the decision on 14 May 2025.

11    On 16 May 2025, the applicant applied to the Tribunal for a review of the delegate's decision.

12    On 23 July 2025, the Tribunal heard the applicant’s application for a review of the delegate’s decision. The applicant appeared at the Tribunal as a litigant in person.

13    On 1 August 2025, the Tribunal affirmed the delegate's decision and gave written reasons for its decision (Decision Record or DR).

C.    Tribunal Decision

14    After considering each of the considerations in the Direction, the Tribunal concluded at DR [133] that:

The Tribunal is satisfied that the nature of the Applicant’s offending raises serious character concerns about the Applicant. Murder is offending of the highest seriousness. The Applicant was convicted on the basis that he had acted with the intention of inflicting serious injury on his victim. It was an offence aggravated by the use of a weapon. It was associated with other violent conduct. It is to be viewed in the context of a long history of offending including convictions for breaking and entering. The nature of the Applicant’s offending and the harm that would result if it were repeated are so serious that the countervailing considerations are insufficient to outweigh considerations of the protection of the Australian community and the expectations of the Australian community so as to justify revoking the cancellation of the Applicant’s Visa.

15    The Tribunal addressed primary consideration 4 at DR [87] to [98]. The Tribunal stated at DR [89] that the applicant had identified three minor children whose interests warranted consideration under primary consideration 4. The children were identified by pseudonyms, K (aged 9), S (aged 7) and Z (aged 2) (together, the minor children).

16    The Tribunal then stated at DR [90] to [98]:

90.    In his Personal Circumstances Form, the Applicant conceded that his minor grandchildren were “conceived whilst I've been in custody and nearly all live in another state so my contact is limited”.

K and S

91.    K and S are the daughters of Malisa, whom the Applicant describes as his step-daughter. The Applicant confirmed that K and S live with their mother and Ms Mackett in Queensland. He stated in his oral evidence to the Tribunal that he has contact with K and S by telephone and K visited him in custody once or twice.

92.    Ms Mackett said in her letter of support that the Applicant:

..has also built and maintained a strong and loving relationship with our grandchildren. He created a bond with them through phone calls, letters, and video visits while incarcerated, and since his release from prison into immigration detention, this bond has grown even stronger through more frequent and meaningful contact, especially via video calls.

93.    Malisa, the children’s mother, did not provide any evidence to the Tribunal.

94.     Z, whom the Applicant did not identify by name, is claimed to be the daughter of the Applicant’s biological son, also not identified by name. The Applicant claims his son was born in Australia, is 26 years old and is currently in prison having been convicted of murder. The Applicant said he has had no contact with his son until recently when the Applicant contacted him by telephone in prison. He said that Z is currently living with her mother in Queensland and the Applicant has had no contact with her.

95.     The Applicant has presented no independent evidence regarding Z.

96.    The Tribunal accepts the Applicant’s evidence that he has maintained some relationship with K and S while he has been in prison and detention, but it is not satisfied that there is sufficient evidence to establish that the Applicant has an existing relationship or has had any meaningful contact with Z whom he claims to be his biological grand-daughter.

97.    Further, the evidence is insufficient to satisfy the Tribunal that the Applicant’s separation from K and S would have a negative impact on them. He has been incarcerated or in immigration detention for the entirety of their lives and has not played an active role in their upbringing. Ongoing contact of the kind he has had with the children could be maintained from New Zealand through electronic communication.

98.     To the extent that any of K, S or even Z wished to establish a relationship with the Applicant in the future it would be preferrable for the Applicant to be in Australia. In this limited respect it would be in their best interests for the cancellation of the Applicant’s Visa to be revoked. However, even though the best interests of minor children who may be affected by the decision is a primary consideration under Direction 110, the Tribunal gives this consideration little weight in favour of revocation in this case.

(emphasis in original, footnotes omitted)

17    I note that contrary to the findings of the Tribunal, the personal circumstances form completed by the applicant makes clear that “Malisa” was his sister, not his step-daughter nor the mother of K and S. The applicant, however, did seek to rely before the Tribunal on unsigned letters of support from Malisa and her husband, the applicant’s brother-in-law.

D.    Relevant principles

18    Section 501CA(4) of the Act enables the Minister on review to revoke the mandatory visa cancellation decision where:

(a)     the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the cancellation should be revoked.

19    Section 496(1) of the Act enables the Minister to delegate their powers under the Act to another person.

20    Section 500(1)(ba) of the Act provides for the making of an application to the Tribunal for review of a decision made by a delegate of the Minister under s 501CA(4) of the Act not to revoke a visa cancellation decision.

21    Section 501(6)(a) of the Act provides that a person is deemed not to pass the character test if they have a “substantial criminal record”, which is defined in section 501(7)(c) to include having been “sentenced to a term of imprisonment of 12 months or more”.

22    The Direction was the relevant direction in force at the time of the decision of the delegate of the Minister and the decision of the Tribunal.

23    Paragraph 8 of the Direction sets out the following five primary considerations that the decision maker is required to take into account:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

24    Paragraph 8.4 of the Direction provides guidance on how the decision maker should approach consideration of the primary consideration 4. Paragraph 8.4(4) provides:

(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.

25    As the Full Court stated in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 372; [2024] FCAFC 160 at [40] – [42] (Perram, Colvin and Abraham JJ):

Importantly, the factors listed in s 8.4(4) are required to be considered in making the determination as to whether revocation is or is not in the best interest of each child affected by the decision. Ultimately, the primary consideration to which there must be regard is the best interests of minor children in Australia, not each of the matters listed in s 8.4(4). It is not the case that there must be regard to each of the matters in the list in respect of each child in order to comply with the direction.

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.

It follows that although consideration of the matters listed in s 8.4(4) may be expected to guide the determination required by s 8.4(1) to be made, it is the overall view that is formed by considering the matters in the list that is to be “taken into account” and weighed with the other considerations. It is wrong to view the decision to be made as to whether to revoke the visa cancellation as one which requires each of the factors that are listed in s 8.4(4) to be taken into account as part of the final weighing exercise to be undertaken in order to comply with the direction.

E.    the single Ground of Appeal

E.1.    The applicant’s contentions

26    The applicant contends that the Tribunal erred by engaging in a perfunctory and formulaic analysis of the best interests of the minor children identified by the applicant. He submits that the Tribunal failed to consider matters that “must” be considered under para 8.4(4) of the Direction and failed to make findings for each of the minor children to make good that ground.

27    The applicant advances the following submissions in support of those contentions:

(a)    the Tribunal failed to make any relevant finding with respect to Z as it only engaged with the absence of any relationship between Z and the applicant and did not consider the relationship that Z might have had in the 16 years with the applicant until Z turned 18 by virtue of the nature of “any normal relationship” between grandfather and grandchild;

(b)    the Tribunal’s assumption of a comparative preference on the part of K and S for the applicant to remain in Australia if they wished to establish a relationship with the applicant is not a determination as to whether non-revocation is, or is not, in a child’s best interests, as required by para 8.4(1) of the Direction and in any event is inconsistent with the Tribunal’s own finding that the applicant had an existing relationship with K and S;

(c)    the Tribunal engaged in an entirely retrospective inquiry and not the necessary forward-looking inquiry required by para 8.4(4)(b) of the Direction. By engaging primarily with the relationship that existed between K and S, and the absence of any relationship between the applicant and Z, solely at the time of the hearing, it failed to consider what role the applicant might play in their lives in the future;

(d)    the Tribunal failed to consider whether the absence of the applicant from Australia would have a negative impact on the minor children, as required by necessary implication from para 8.4(4)(c) of the Direction;

(e)    the Tribunal failed to undertake any analysis of the parental role that the applicant may have been able to play for K and S given the absence of any evidence of a father figure in their lives, as required by para 8.4(4)(e) of the Direction;

(f)    the Tribunal failed to engage with the requirement in para 8.4(4)(f) of the Direction to have regard to the known views of the minor children, in circumstances where the only inference given the available evidence is that they would have wanted him to remain in Australia, given the evidence of Ms Mackett plainly showed that the applicant had a strong relationship with K and S. That relationship had been growing, particularly as they been able to spend more time together after the applicant moved into immigration detention. Given the ages of K and S, the Tribunal could infer that had they given evidence they would have supported the applicant remaining in Australia; and

(g)    the Tribunal’s engagement with the requirement in para 8.4(4)(d) of the Direction to have regard to the impact of a separation on the minor children was inadequate because the Tribunal equated an ability to maintain electronic contact with the effect of separation on the minor children and it was a non-sequitur for the Tribunal to rely on the applicant’s incarceration for the entirety of the minor children’s lives to diminish the weight of the separation.

E.2.    The applicant has not demonstrated any discernible error

28    None of the submissions advanced by the applicant establish any jurisdictional error on the part of the Tribunal in its consideration of the primary consideration 4 under the Direction.

29    First, the Tribunal plainly concluded that revocation was in the best interests of the minor children, including Z, at DR [98] and [128(a)]. It did not confine itself to any retrospective analysis of the interests of the minor children. Any consideration of the impact that the applicant’s removal would have on the best interests of the minor children would necessarily have to commence with a consideration of the nature and extent of the relationship that the applicant presently had with them.

30    Of particular significance in this case is the applicant’s evidence that K and S live with their mother in Queensland and the only in-person contact he had with any of the minor children was that K had “visited him in custody once or twice”. It was open for the Tribunal to conclude at DR [97] given the very limited evidence of any contact in person that “[o]ngoing contact of the kind he has had with [K and S] could be maintained from New Zealand through electronic communication”. In no relevant sense did this finding involve any “non-sequitur”.

31    Second, and relatedly, the Tribunal at DR [98] considered that to the extent that any of the minor children “wished to establish a relationship with the Applicant in the future” that “it would be preferrable for the applicant to remain in Australia”. In that limited respect, the Tribunal accepted that it would be in the best interests for the cancellation of the applicant’s visa to be revoked. The Tribunal at DR [96] and [97], however, also found that there was insufficient evidence to demonstrate that the applicant’s separation from any of the minor children would have a negative effect on them. In the absence of such evidence, the Tribunal considered that the best interests of the minor children attracted “little weight in favour of revocation even though a primary consideration under Direction 110”. The Tribunal clearly gave consideration to the matters in para 8.4(4) of the Direction as part of the final weighing exercise required by para 8.4(1): Nguyen at [42].

32    Moreover, in context, the finding that any of the minor children might wish to “establish a relationship” with the applicant is not inconsistent with the Tribunal’s own finding that the applicant had maintained “some relationship with K and S while he has been in prison and detention”. The Tribunal’s latter reference to “some relationship” was a reference to a relationship that, with only one or two exceptions with K, had been limited to telephone contact, in contrast to the prospect of an in-person and more substantive relationship as I readily infer was contemplated by the Tribunal at DR [98]. The Tribunal did not fail to consider whether the absence of the applicant from Australia would have a negative impact on the minor children, to the extent it might have been required by necessary implication from para 8.4(4)(c) of the Direction.

33    Third, the Tribunal was under no obligation to consider each of the matters in para 8.4 in relation each of the minor children. Matters only need to be addressed “where relevant”. The matters identified in para 8.4(4) may be expected to guide the determination required by para 8.4(1), but it is the overall view that is formed by considering the matters in the list that is to be taken into account and weighed against the other considerations in the Direction: Nguyen at [42]. The nature and extent of that obligation will depend on all the circumstances: Nguyen at [43].

34    The evidence and submissions concerning the interests of the minor children was limited to the statements made by the applicant in his oral evidence before the Tribunal and the letter from the applicant’s partner, Ms Mackett, as relevantly reproduced by the Tribunal at DR [92].

35    The applicant provided the following description of his relationship with the minor children in his personal circumstances form that he provided to the delegate:

all my grand kids have been conceived whilst Ive been in custody and nearly all live in another state so my contact is limited but they know who I am they are normally with my partner so I speak with them most days and have the occasional video visit when possible but they do think Im coming home next year and would be upset if I was to have a negative outcome

36    The applicant then described the current impact on the minor children and any likely impact on them if the visa cancellation decision was not revoked in the following terms in his personal circumstances form:

If a negative outcome was to occur then my partner would have to choose if she would come with me and if she did decide to move with me then not only would they lose one grandparent but they might end up losing both due to the circumstances which would not be a good outcome for them

37    The parents of K and S did not give evidence, nor did the parents of Z, nor did any of K, S and Z.

38    Fourth, the Tribunal did not fail to engage with the requirement in para 8.4(4)(f) of the Direction to have regard to the “known views” of the minor children. There was relevantly no evidence of the “known views” of the minor children. I do not accept that any desire or wish of K and S that the applicant remain in Australia can be inferred from the statements made by their grandmother, Ms Mackett, particularly in the absence of any evidence from the mother of K and S.

39    Fifth, there was insufficient evidence before the Tribunal to require it to undertake any analysis of the parental role that the applicant may have been able to play for any of the minor children in order to satisfy any obligation imposed by para 8.4(4)(e) of the Direction. At best there was evidence from the grandmother of K and S. There was no evidence from any of the parents of the minor children or any other independent evidence of any parental role that the applicant might be able to perform for the minor children. The Tribunal was not under any obligation to speculate.

40    For the foregoing reasons, I am satisfied that the Tribunal has read, identified, understood and evaluated the evidence relied upon by the applicant with respect to primary consideration 4 under the Direction and the Tribunal has not constructively failed to apply properly that primary consideration.

41    Given my finding above, it is not necessary to consider whether there is a realistic possibility that greater weight would have been placed on primary consideration 4 had the Tribunal fallen into jurisdictional error in the respects alleged by the applicant.

42    The ground of appeal relied upon by the applicant has not been established.

F.    Disposition

43    The applicant is to be granted leave to rely on the amended originating application, the amended originating application is to be dismissed, and the applicant is to pay the costs of the Minister.

Associate:

Dated:    31 July 2026