Federal Court of Australia

VZSJ v Minister for Immigration and Multicultural Affairs [2026] FCA 1280

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application (as amended) dated 24 July 2025 be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, a citizen of the People’s Republic of China, resided in Australia for many years pursuant to a series of visas, most recently a Resident Return (Class BB) (Subclass 155) visa (Visa). In January 2020, that visa was mandatorily cancelled by the respondent, the Minister for Immigration and Multicultural Affairs, following the applicant’s conviction and imprisonment for various offences. The applicant made representations to the Minister in respect of the revocation of the cancellation of his visa, however a delegate of the Minister decided not to revoke the cancellation. The applicant applied to the then Administrative Appeals Tribunal (AAT) for a review of the delegate’s decision. The AAT twice affirmed the delegate’s decision, though each of those decisions was found by this Court to have involved jurisdictional error and the applicant’s review application was remitted to the Tribunal for redetermination. The review application was considered on remittal on a third occasion by the Administrative Review Tribunal, which replaced the AAT, though the outcome was the same for the applicant. The delegate’s decision was affirmed.

2    The applicant applied to this Court for judicial review of the Tribunal’s decision. He advanced one review ground which, in essence, impugned the Tribunal’s exercise of jurisdiction on the basis that its reasons for finding that the facts relating to certain family violence offences committed by the applicant were the facts as found by the sentencing court, not the facts later advanced by the applicant and his partner (or former partner) in their evidence before the AAT and the Tribunal. The Tribunal’s findings concerning the facts of the family violence offences were variously said to involve illogical reasoning or a failure to consider the applicant’s case in its entirety. The Tribunal’s decision was therefore said to be vitiated by jurisdictional error.

3    As explained in the reasons that follow, the Tribunal’s findings concerning the facts of the family violence offences were open to it on the material available to it. The Tribunal did not ignore or overlook any of the applicant’s case and its reasoning was not illogical or otherwise legally unreasonable. The application must accordingly be dismissed.

RELEVANT FACTS AND PROCEDURAL HISTORY

4    The applicant arrived in Australia in 1998 as the holder of a Temporary Work (Skilled) (Class UC) (Subclass 457) visa which, as the name suggests, was a temporary visa. He was granted a series of further temporary visas until, in March 2012, he was granted the Visa, which was a permanent visa.

The applicant’s criminal history

5    The applicant has an extensive criminal record in Australia. His criminal offending commenced in September 2000, when he was convicted of the offence of driving with a mid-range prescribed concentration of alcohol (PCA). In May 2003, he was convicted of another offence of driving with a PCA, this time a low-range, and, in September 2003, he was convicted of driving while disqualified from holding a licence. He was convicted of the same offence in March 2006 and April 2007. In April 2016, he was convicted of what appears to have been a minor fraud offence and, in April 2018, he was convicted of a series of further driving or motor vehicle offences. Up to this point, most of the applicant’s criminal offending appears to have been relatively minor, as reflected in the fact that most of the sentences imposed in respect of his offending involved fines, though he was directed to enter a good behaviour bond on one occasion and was ordered to perform community service on two occasions.

6    In May 2019, however, the applicant was convicted of offences that could not be described as minor. Those offences were an offence of common assault and an offence of stalking or intimidating a person with the intention of causing fear of physical or mental harm. Both those offences were characterised as domestic violence offences as the victim was the applicant’s then domestic partner (referred to by the Tribunal as Ms W). The applicant pleaded guilty to both offences. The sentenced imposed by the magistrate before whom the guilty pleas were entered was that the applicant was directed to enter into a conditional release order pursuant to s 9(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 12 months, the conditions of which were that the applicant not commit any offences and was required to appear before the court if called upon to do so during the term of the order. Such an order is often referred to as a good behaviour bond.

7    It will be necessary to return to those offences later in these reasons because the Tribunal’s findings in respect of the facts of those offences lie at the heart of the applicant’s challenge to the Tribunal’s decision.

8    In November 2019, the applicant was convicted of further serious offences. Those offences, which were found to have been committed between January and November 2016, comprised the offence of dealing with property that became an instrument of crime and two counts of giving false or misleading information to a reporting entity. Those offences were State and Commonwealth offences. The seriousness of those offences was reflected in the sentence imposed by the sentencing judge: an effective term of imprisonment of 30 months.

The applicant’s visa is cancelled

9    References to provisions of the Migration Act 1958 (Cth) in these reasons are references to the provisions as at the time of the relevant decisions.

10    On 17 January 2020, the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act, which relevantly provided as follows:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    …; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11    Subsection 501(6)(a) of the Migration Act relevantly provided that a person does not pass the “character test” if the person has a “substantial criminal record”. Subsection 501(7)(c) of the Migration Act provided that, for the purposes of the “character test”, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

12    As the facts relating to the applicant’s conviction and sentence in November 2019 indicate, the applicant did not pass the character test because he had a substantial criminal record. That is because he had been sentenced to a term of imprisonment of 12 months or more in respect of those offences. At the time his visa was cancelled, the applicant was serving that sentence of imprisonment, on a full-time basis, in a custodial institution, in respect of those offences which, as indicated earlier, were State and Commonwealth offences.

The Minister’s delegate refuses to revoke the cancellation

13    Section 501CA of the Migration Act applied where the Minister had made a decision (referred to as the “original decision”) under s 501(3A) to cancel a visa that had been granted to a person. Subsection 501CA(3)(b) of the Migration Act provided that the Minister was required to invite the person to make “representations … about revocation of the original decision”. Subsection 501CA(4) then provided as follows:

(4)    The Minister may revoke the original decision if:

(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 original decision should be revoked.

14    The applicant was invited to, and subsequently made, representations to the Minister about the revocation of the decision to cancel his visa. On 1 April 2022, the Minister’s delegate decided not to revoke the cancellation. It is unnecessary to refer to the reasons given by the delegate.

Prior decisions of the AAT and their unfortunate fate

15    The applicant applied to the AAT for a review of the decision of the delegate. On 15 July 2022, the AAT affirmed the delegate’s decision. The applicant applied to this Court for judicial review of that decision and, on 8 March 2023, the decision was set aside by consent, the Minister having conceded that the AAT had erroneously refused to permit the applicant to call evidence from his stepdaughter and had thereby denied the applicant procedural fairness. The applicant’s review application was remitted to the Tribunal for redetermination.

16    On 20 October 2023, the AAT, on remittal, again affirmed the delegate’s decision not to revoke the cancellation of the applicant’s visa. Regrettably, that decision did not fare any better than the AAT’s earlier decision. On 9 January 2024, a judge of this Court quashed the AAT’s decision, again by consent, on the basis that the Minister conceded that the AAT had not complied with a mandatory consideration under paragraph 8.4(4)(f) of Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, on the basis that the Minister had failed to consider the known views of a particular child when assessing the best interests of minor children in Australia. The applicant’s review application was again remitted to the AAT to be determined according to law.

17    Following that decision, the AAT was effectively replaced by the Tribunal and transitional provisions effectively gave the Tribunal jurisdiction to finalise any review application that had not been completed by the AAT. In October 2024, the Tribunal convened a hearing to determine the applicant’s review application on remittal. The applicant and the Minister were legally represented at the hearing. A large volume of documents, which included documents that had been before the earlier decision-makers, including the AAT, were tendered. On 24 February 2025, the Tribunal decided to affirm the delegate’s decision not to revoke the cancellation of the applicant’s visa and published a statement of reasons (reasons or R).

THE TRIBUNAL’S DECISION AND REASONS

18    It is unnecessary to provide a detailed account of all the Tribunal’s findings and reasons for affirming the delegate’s decision given the narrow scope of the applicant’s review ground. Close consideration need only be given to the findings and reasoning in respect of the applicant’s conviction of the domestic violence offences as those findings and that reasoning were the focus of the applicant’s challenge to the Tribunal’s decision. It is nevertheless necessary to give a short account of the Tribunal’s decision given the need for the applicant to show that any error that may have been made by the Tribunal in the exercise of its jurisdiction was a material error. Before doing that, however, it is necessary to briefly outline the content of a direction that the Tribunal was required to follow in determining the application.

Direction 110

19    At the time of the Tribunal’s determination of the applicant’s review application on remittal, the then Minister had given written directions under s 499(1) of the Migration Act in respect of, among other things, the exercise of the power to revoke visa cancellations under s 501CA. Those directions were set out in the creatively titled: Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 7 June 2024.

20    The Direction contained a detailed list and discussion of the relevant considerations that a decision-maker was required to take into account in deciding, relevantly, whether to revoke a visa cancellation. The “primary” considerations were stated to be: the protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in by the person whose visa had been cancelled constituted family violence; the strength, nature and duration of that person’s ties to Australia; the best interests of minor children in Australia; and the expectations of the Australian community. The “other” considerations were stated to be: the legal consequences of the decision; the extent of the impediments likely to be faced by the person if he or she was removed from Australia; and the impact of any such removal on Australian business interests.

21    The applicant’s challenge to the Tribunal’s decision focussed on the Tribunal’s findings and reasons concerning family violence. Before addressing those findings in detail, it is useful to briefly summarise the Tribunal’s other findings and reasoning.

The Tribunal’s findings in respect of the primary and other considerations

22    The Tribunal gave detailed consideration to the primary consideration of the protection of the Australian community at R[45]-[99]. It concluded that the need to protect the Australian community weighed heavily against revoking the cancellation of the applicant’s visa. The Tribunal’s reasons for so concluding included that: the applicant’s offending was very serious because it included domestic violence “constituted by physical acts of violence and intimidation” (R[50]) and “serious financial crime, over an almost 12-month period, with multiple discrete acts of dishonesty committed over that period and in multiple states” (R[51]); the applicant had “appeared before the courts for a range of offences over an extended period” (R[52]); the applicant’s offending, and in particular his family violence offending, was not significantly mitigated by his gambling addiction (R[53]-[54]); the “harm which would likely be caused were the [a]pplicant to commit further financial, domestic violence, or traffic offences … [was] very serious” (R[69], and see R[58]-[68]); and that, while the applicant’s “current risk of re-offending” was “trending to a low risk of re-offending, both generally and also in terms of domestic violence” the Tribunal did “not accept that there is no risk, or even a very low risk, he will re-offend”: R [95], and see R[70]-[94].

23    The applicant’s review ground and submissions did not challenge the Tribunal’s findings concerning the seriousness of his offending, other than in respect of the family violence offences. That is perhaps not surprising given that he had conceded in the Tribunal that his offending generally was properly regarded as very serious: see R[47]. As discussed later, however, the applicant contended that in making that finding the Tribunal gave “significant adverse weight” to the facts of the domestic violence offences he committed. It was the Tribunal’s findings concerning the domestic violence offences that were the focus of his challenge. The applicant did not challenge the Tribunal’s findings in respect of the risk of him reoffending.

24    In respect of the primary consideration concerning family violence, the Tribunal, perhaps not surprisingly, found that the offences committed by the applicant in May 2019 were “clear instances of family violence”: R[100]. The Tribunal noted that the offences had not been “repeated” (R[102]) and that the victim had forgiven the applicant and did not have any “safety concerns for herself nor for her children”: R[103]. The Tribunal found, however, that the applicant had “limited insight and remorse regarding the family violence offences and their impact”: R[106]. The Tribunal concluded that the family violence perpetrated by the applicant was “moderately serious”, that the Government’s serious concerns in respect of such offending, as detailed in the Direction, applied to the offence committed by the applicant, and that this primary consideration weighed against revocation to a moderate degree: R[107].

25    In relation to the primary consideration concerning the strength, nature and duration of the applicant’s ties to Australia, the Tribunal found that the applicant’s immediate family would be significantly affected if the cancellation of his visa was not revoked: R[121]. The Tribunal also reasoned that, while the applicant had social ties to the Australian-Chinese community in Sydney, that consideration was deserving of less weight because the applicant’s offending began shortly after he arrived in Australia: R[130], [132]. This consideration was given “moderate weight in favour of revocation”: R[133].

26    As for the primary consideration of the best interests of minor children who would be affected by the decision, the Tribunal accepted that there were four relevant minor children who would be impacted by the decision (R[134]-[135]) and that it would be in their best interests if the decision to cancel the applicant’s visa was revoked: R[140]. The Tribunal concluded that the best interests of the applicant’s minor children, considered together with the best interests of a nephew (see R[141]), weighed heavily in favour of revocation: R[142].

27    The Tribunal considered the primary consideration of the expectations of the Australian community (at R[143]-[148]) and concluded that it weighed “moderately against revocation”: R[149].

28    As for the “other considerations”, the Tribunal concluded that: the legal consequences of the decision (see R[150]-[162]) weighed in favour of revocation (R[163]); the impediments likely to be faced by the applicant if he was required to return to China (see R[164]-[172]) were to be given “slight weight in favour of revocation” (R[173]); and that there was no evidence that the decision would have any meaningful impact on any Australian business interest: R[174].

29    The Tribunal weighed up the various primary and other considerations and concluded that “those factors which weigh in favour of revocation, being the strength, nature and duration of ties, best interests of relevant minor children, the legal consequences of the decision, and the extent of impediments if removed, while carrying some force, are outweighed by those weighing against revocation, particularly the protection of the Australian community, family violence, and the expectations of the Australian community”: R[180]. The Tribunal was accordingly not satisfied that there was “another reason” why the decision to cancel the applicant’s visa should be revoked: R[181].

The Tribunal’s findings in respect of the family violence offences

30    As has already been noted, and as will be discussed in more detail shortly, the applicant’s review ground and submissions focussed on the Tribunal’s findings concerning the family violence offences which he committed in May 2019. The applicant contended before the Tribunal that, while he pleaded guilty and was sentenced on the basis of uncontested facts which included that he had punched Ms W, in fact he had only pushed her. He relied, in support of that contention, on not only his own evidence before the Tribunal, but also statutory declarations made by his wife in which she claimed that the applicant had not punched her but had only pushed her. In his evidence, the applicant claimed that he had only pleaded guilty because his lawyer had advised him to do so.

31    The Tribunal, however, rejected the applicant’s attempt to “go behind” the facts as found by the sentencing court. It was that finding which was the focus of the applicant’s challenge. The Tribunal noted, correctly, that the applicant had pleaded guilty to, and was convicted of, the offences of common assault and intimidate to cause fear of physical or mental harm at the Parramatta Local Court on 30 May 2019: R[30]. The Tribunal’s brief recitation of the facts of those offences was largely based on the police “Facts Sheet” that was, it may be inferred, tendered by the prosecutor at the sentence hearing without objection. More will be said about that later.

32    The Tribunal’s reasons for rejecting the applicant’s attempt to go behind the facts that were before the sentencing court and accepted by the sentencing judge were as follows (at R[31]-[35]):

The Applicant initially denied committing these offences in representations made to the delegate. He claimed to have pleaded guilty on the advice of counsel and that, if he had known the seriousness of the charges for his migration status, he would not have admitted his guilt. The Applicant told the previously constituted Tribunal in July 2023 that he was suicidal in May 2019 and that he struck his partner because he wanted to kill himself. He told this Tribunal that he initially denied the offending because it was an argument, and that he had formed the view, based on his prior Tribunal hearings and outcomes, that there was ‘no point [in] explanation’. He said that he did not, in fact, punch Ms W, rather it was a push. Ms W has previously sworn a statutory declaration in February 2020, to the effect that the Applicant pushed her during an argument that she started.

A plea of guilty only involves an acceptance of the essential elements of the offence. If the facts are admitted, or determined on a trial of the issues, they provide the basis upon which the offender is to be sentenced.

The overwhelming weight of authority is that, where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind neither the conviction nor sentence. With respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction nor sentence, nor the essential facts on which they are based. With respect to other convictions, there is a ‘heavy onus’ on the Applicant where they seek to challenge the facts upon which those convictions are based.

While the Applicant provided an alternate account of the offences and claimed to have pleaded guilty on advice of counsel and due to not understanding the significance of doing so, he offered limited evidence in support of his contested versions of events which might discharge the ‘heavy onus’, which he bears, to convince the Tribunal to adopt an alternate version or characterisation of the facts of the offences for which he was convicted by a court. While he offered some evidence from his ex-wife, the victim, in support of his account, the Tribunal did not accept this was sufficient to discharge the Applicant’s ‘heavy onus’. Having regard to the offences and to the authorities, the Tribunal considers it appropriate to accept the facts found by Magistrate Keady and the evidence of factual circumstances in contemporaneous official records, including the Statement of Material Facts.

In our view, the Applicant has not discharged his ‘heavy onus’ to challenge the facts upon which he was convicted and sentenced for this offending, notwithstanding that his conviction and sentence followed a plea of guilty and the victim has given subsequent statements supporting the Applicant’s version of events. The Tribunal is not satisfied on the Applicant’s evidence that there is any basis for going behind the conviction, or to reject the facts as found by the Sentencing Judge.

(Footnotes omitted.)

33    The “overwhelming weight of authority” to which the Tribunal referred was identified in a footnote as comprising the following cases: Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385; HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202 (HZCP Full Court) at [63] and [68]; and HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP first instance).

THE APPLICANT’S REVIEW GROUND AND SUBMISSIONS

34    The applicant’s amended originating application contained one ground of review of the Tribunal’s decision:

The [Tribunal’s] Decision is vitiated by jurisdictional error as the Tribunal:

a.    engaged in irrational, illogical or legally unreasonable reasoning; and /or

b.    misunderstood its statutory task; and or

c.    constructively failed to exercise its jurisdiction

in its consideration of facts underlying certain convictions.

35    While the review ground was expressed in very broad terms, the particulars provided in respect of the ground and the applicant’s submissions focussed entirely on the Tribunal’s findings in respect of the applicant’s family violence offences and its rejection of the applicant’s attempt to go behind and reject the facts as found by the sentencing judge. The applicant contended that the Tribunal’s reasons for not accepting his and Ms W’s evidence and rejecting his challenge to the facts as found by the sentencing court were illogical or irrational (and therefore legally unreasonable), or that the Tribunal’s reasons otherwise revealed that it misunderstood its “statutory task or constructively failed to exercise its jurisdiction”.

36    The premises or underpinnings of the applicant’s contentions in that regard were, in essence, that the applicant and Ms W were the only witnesses to the incident in question, there was no way of “independently corroborating what had occurred”, and their evidence was therefore “critical to understanding what [had] occurred”. The applicant took issue, in that context, with the Tribunal’s statement (at R[34]) that he had offered only “limited evidence” in support of his version of events. The applicant also claimed that the Tribunal failed to consider two of Ms W’s statutory declarations, did not “bring to mind” Ms W’s evidence and did not “bring to mind or grapple with the question of what other evidence could rationally affect the assessment of the probability of the existence of the essential facts underlying the convictions”. He submitted that the Tribunal dealt with the evidence in a very perfunctory way and that there was such “scant engagement” with the evidence that the Court should conclude that the Tribunal had constructively failed to exercise its jurisdiction. The applicant pointed out, in that regard, that the Tribunal did not refer in its reasons to some of the evidence that had been given by the applicant and Ms W, and that Ms W was apparently present at the Tribunal hearing and could have been called to give evidence if there was any suggestion that her evidence was false.

WAS THE DECISION ILLOGICAL AND THEREFORE LEGALLY UNREASONABLE?

37    Before addressing the applicant’s argument that the Tribunal’s reasons for not accepting his and Ms W’s evidence and rejecting his challenge to the facts as found by the sentencing court were illogical or irrational it is useful to briefly outline the principles that apply when considering whether an administrative decision is legally unreasonable because it is illogical or irrational. Those principles are well established and were not in issue between the parties.

38    It is also useful to briefly address the principles that apply when a person whose visa has been cancelled as a result of failing the character test seeks to challenge the facts upon which he or she was convicted of an offence. That is so even though the applicant did not suggest that the Tribunal failed to apply the correct principles.

Applicable principles – legal unreasonableness and illogicality

39    It is uncontroversial that Parliament is taken to intend that a statutory power will be exercised reasonably by the administrative decision-maker: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [23]-[31], [63]-[76] and [88]-[92]; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [80] (Nettle and Gordon JJ).

40    It is, however, critical to understand that the concept of reasonableness, or unreasonableness, in this context, does not provide a vehicle to challenge the merits of the decision, or to challenge a decision merely on the basis that the decision-maker should have given more weight to certain considerations, or gave too much weight to other considerations, or could or even should have made different factual findings. For a reviewing court to conclude that a decision is legally unreasonable, it must be satisfied that either the outcome of the decision, or the process or reasoning by which the decision was arrived at, so departed from the underlying premises of the exercise of statutory power as to amount in effect to an abuse of power, in the sense that the power was exercised outside the limits, or other than for the purposes for which the power was conferred: SZVFW at [80] (Nettle and Gordon JJ); Minister for Immigration, Citizenship and Multicultural Affairs v Lieu (2023) 297 FCR 162; [2023] FCAFC 57 at [81] (Mortimer CJ).

41    The test for legal unreasonableness is “necessarily stringent”: SZVFW at [11] (Kiefel CJ); Lieu at [82] (Mortimer CJ). It involves a conclusion that no sensible decision-maker that appreciated its (or his or her) responsibilities could have made the decision in question, or arrived at the decision via the decision-making process or process of reasoning that was employed: see generally Li at [71] (Hayne, Kiefel and Bell JJ); SZVFW at [69] (Gageler J); Lieu at [82] (Mortimer CJ).

42    Illogical or irrational reasoning or fact finding may in some circumstances support a finding that the resulting decision was legally unreasonable: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [124]-[131]; see also BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292; [2018] FCAFC 94 at [34]. Illogicality or irrationality in that context, however, requires something more than emphatic disagreement with the reasoning or findings: SZMDS at [124], [131]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]. For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact, “extreme” illogicality or irrationality must generally be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]; see also SZMDS at [131].

Applicable principles – going behind the facts found by a sentencing court

43    In HZCP (first instance), Bromberg J summarised the principles that apply when a person whose visa has been cancelled as a result of failing the character test seeks to challenge the facts upon which he or she was convicted of an offence as follows (at [78]):

(1)    Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2)    Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

44    That statement of the applicable principles was effectively endorsed by the Full Court in HZCP (Full Court). Justice McKerracher (with whom Colvin J agreed at [179]) observed (at [55]), in respect of the first category of case, that a visa cancellation under s 501(3A) of the Migration Act must have, as its foundation, a conviction or a sentence of one of the kinds referred to in ss 501(7)(a)-(c) and that the cancellation power would not arise “without the prior foundation of the requisite conviction or the sentence”. His Honour went on to state (at [63]) that “[w]here the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends”. Similarly, his Honour said (at [68]) that “where the foundation for the jurisdiction [exercised] is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error”.

45    In relation to the second category of case, where the exercise of the power is not founded on the conviction or sentence, McKerracher J stated (at [71]):

There will be other cases in which a conviction or sentence can be part of the facts forming a broad range of considerations for the Minister’s evaluation, but in those circumstances, the conviction or sentence is not the trigger to enliven the Minister’s power to conduct that evaluation. In such cases, it is conceivable that evidence could be adduced as to facts which depart from those upon which a conviction was based. However, as indicated in the authorities, including Ali, in this second category of case the onus on someone wishing to prove such facts would be heavy.

46    The reference to Ali in this passage was a reference to Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385. In that case, Branson J concluded (at [43]) that the Migration Act should be construed as requiring an administrative decision-maker to “treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted”. Her Honour did, however, go on to note that “the heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing”.

47    In respect of that latter point, McKerracher J in HZCP (Full Court) also noted (at [52]) that “[t]here are reasons why a person might plead guilty to an offence they did not commit” and that in some of those cases, a person might “mount a compelling argument about why they did so and persuade the decision-maker that, notwithstanding the conviction, the true facts are not the essential facts that were accepted for the purpose of the conviction being entered”.

48    Colvin J who, as noted earlier, agreed with McKerracher J, made some additional observations concerning the applicable principles. Those observations included (at [191]):

… unless there is a compelling reason to doubt the integrity of the process by which a person was convicted and sentenced or a compelling explanation as to why a particular factual foundation should not be accepted, administrative decision-makers will not meet their obligation to make findings based upon logically probative material if they make contrary findings. A convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings. The type of explanation that may meet this requirement may be different where there is a plea of guilty said to have been induced by other considerations than when there was a conviction after trial by judge and jury. In an instance where there is a challenge to facts that underpin sentencing, it may depend upon the nature of the process undertaken at the time of sentencing, particularly whether facts were formally stipulated for that purpose.

49    There could be no doubt that in this matter the Tribunal correctly found that the applicant’s challenge to the facts underlying his conviction of the family violence offences in May 2019 fell within the second category of case and that, accordingly, it was open to the applicant to challenge the facts, but that he bore a “heavy onus” to show why the facts as found by the sentencing court should not be accepted. The applicant did not contend otherwise. The issue, essentially, is whether the Tribunal’s findings and reasoning to the effect that the applicant had not discharged that heavy onus involved jurisdictional error.

The Tribunal’s reasoning was not illogical or irrational

50    It might perhaps be accepted that the Tribunal’s reasons for finding that the applicant had not discharged the heavy onus of showing why the facts as found by the sentencing judge should not be accepted are brief and not particularly illuminating. I am, however, not persuaded that those reasons are illogical or irrational, and therefore legally unreasonable, as contended by the applicant.

51    When the Tribunal’s reasons at R[31]-[35] are read fairly and without “an eye keenly attuned to the perception of error” (cf. Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), it is clear that the Tribunal preferred the “evidence of factual circumstances in contemporaneous official records” (cf R[34]) to the applicant’s subsequent self-serving and inconsistent evidence (cf R[31]) and Ms W’s subsequent statements which supported the applicant’s version of events (cf R[35]). The Tribunal simply did not accept that the evidence given by the applicant and Ms W, in the context of the applicant’s attempts to persuade the delegate, the AAT and the Tribunal to revoke the cancellation of his visa, was sufficient to discharge the heavy onus of showing why the facts found by the sentencing court should not be accepted.

52    In the course of argument in this proceeding, the applicant’s counsel conceded that it was open to the Tribunal, in all the circumstances, to prefer the contemporaneous records to the subsequent, and essentially self-serving, statements made by the applicant and Ms W in the context of the applicant’s attempt to have the cancellation revoked. That concession was properly made.

53    The contemporaneous records included the police Facts Sheet that was tendered and admitted into evidence at the sentence hearing. The applicant was legally represented at the sentence hearing and there is no indication or suggestion that the applicant or his legal representative objected to the tender of the Facts Sheet or disputed any of the facts recorded in it. The facts in the Facts Sheet included that the applicant “punched the victim three times … with a closed fist in an over arm motion” and that the “victim experienced immediate pain”. The facts also included that the police obtained a handwritten statement from Ms W and that the applicant told the police, when asked to about what had occurred, that he had punched Ms W in the left arm.

54    There were other contemporaneous records that were consistent with the recitation of the facts in the police Facts Sheet. In particular, a contemporaneous incident report prepared by the police for the purposes of an application for an Apprehended Domestic Violence Order contained a version of the events which was entirely consistent with the Facts Sheet, including the applicant’s admission to the police on the evening of the incident that he punched Ms W. Nothing in that document provided any support for the applicant’s claim, first advanced in the context of his attempt to have his visa cancellation revoked, that he only pushed Ms W and did not punch her. There is, for example, no indication in the incident report that either the applicant or Ms W told the police that the applicant only pushed Ms W. Indeed, as already indicated, the report stated that the applicant had admitted to the police that he had punched Ms W.

55    It is true, as the applicant submitted, that the applicant and Ms W were the only first-hand witnesses to the incident in which the applicant assaulted Ms W. It does not follow that the Tribunal was obliged to uncritically accept the evidence of the applicant and Ms W, given in the context of the applicant’s attempt to persuade the delegate, the AAT and the Tribunal to revoke the cancellation of the applicant’s visa, that the applicant only pushed, and did not punch Ms W during that incident. It also does not follow that the Tribunal’s description of the evidence upon which he relied in support of his version of events as being “limited” was inapposite, let alone illogical or irrational.

56    Even putting to one side the inconsistency between that evidence and the contemporaneous documents, it was open to the Tribunal to be sceptical of the applicant’s evidence given that it was obviously self-serving. Moreover, as the Tribunal observed at R[31], the applicant had given an inconsistent account in his evidence during one of the earlier AAT hearings, when he effectively admitted that he had struck Ms W. That provided another reason to question the reliability of the applicant’s evidence. The applicant’s evidence that he only pleaded guilty because he was advised to do so by his counsel was not only entirely uncorroborated by any admissible evidence, but also did not explain why he pleaded guilty on the basis of facts that he now claims were incorrect. He could have pleaded guilty and disputed those facts.

57    It was equally open to the Tribunal to be sceptical of the credibility or reliability of Ms W’s evidence in circumstances where she was obviously seeking to assist the applicant.

58    It may be accepted that, as McKerracher and Colvin JJ noted in HZCP (Full Court), the heavy onus that a person in the applicant’s position bears may be more easily satisfied where, as here, the conviction and sentence followed a plea of guilty. As has already been noted, the applicant claimed in the Tribunal that he only pleaded guilty on the advice of counsel and did not understand the significance of his plea in that regard. It is apparent from a fair reading of the Tribunal’s reasons that the Tribunal either did not accept that evidence, or was not persuaded that it provided a sound or reliable basis for rejecting the version of events in the contemporaneous documents in favour of the post-visa cancellation version of events given by the applicant and Ms W. The evidence concerning the circumstances in which the applicant pleaded guilty was quite limited. Perhaps not surprisingly, the applicant did not adduce evidence from the barrister who represented him at the sentence hearing and, while Ms W purported to address the circumstances of the applicant’s plea, that evidence was, to say the very least, of dubious admissibility and could scarcely be said to be credible or reliable. It was in all the circumstances open to the Tribunal not to accept the evidence of the applicant and Ms W concerning the circumstances of the applicant’s guilty plea, or at least not accept that it discharged the heavy burden faced by the applicant in the circumstances.

59    It was, in all the circumstances, open to the Tribunal to find, as it did, that the applicant had not discharged the heavy onus of showing why the facts as found by the sentencing court should not be accepted. As the applicant conceded in his submissions, it was open to the Tribunal to prefer the contemporaneous documents, including the Facts Sheet tendered without objection at the sentence hearing, to the evidence of the applicant and Ms W. Of course, a different decision-maker might have reached a different conclusion to that reached by the Tribunal. Reasonable minds might well have differed as to whether the applicant’s and Ms W’s evidence could or should be accepted in preference to the contemporaneous documents. It does not follow that it can be concluded that the Tribunal’s finding in respect of that issue was illogical, irrational or legally unreasonable. I am not persuaded that it was.

60    Nor can it be said that the Tribunal’s reasons were illogical or irrational. The reasons were brief, but read fairly, they clearly convey that the Tribunal preferred the facts as stated in the contemporaneous documents over what the Tribunal plainly considered to be the unreliable, self-serving evidence of the applicant and Ms W. As noted earlier, extreme illogicality must generally be established to satisfy the stringent test for legal unreasonableness. The applicant has not shown that the Tribunal’s findings and reasoning concerning the facts of his domestic violence offences were infected by any illogicality, let alone extreme illogicality.

did the tribunal fail to consider the applicant’s case?

61    As adverted to earlier, the applicant’s contention that the Tribunal failed to lawfully consider his case and thereby constructively failed to exercise its jurisdiction was based on the contention that the Tribunal failed to consider, “in the requisite manner”, his evidence and submissions in respect of the facts of the May 2019 offences.

62    Before addressing that contention, it is necessary to briefly address the principles that apply when an applicant contends that an administrative decision-maker has failed to validly exercise their power or jurisdiction because they did not sufficiently consider or engage with the evidence or representations which they put before the decision-maker for the purposes of the decision.

Applicable principles

63    In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17, the High Court considered the extent to which the Minister had to consider and engage with the representations made by a person who had made representations to the Minister in respect of the revocation of the cancellation of the person’s visa pursuant to s 501CA(4) of the Migration Act. The applicable principles in respect of that issue as enunciated by the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) may be summarised as follows.

64    First, a decision-maker must “read, identify, understand and evaluate the representations” and 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”: Plaintiff M1/2021 at [24] (footnotes omitted).

65    Second, the “weight to be afforded to the representations is a matter for the decision-maker” and the decision-maker is “not obliged ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder”: Plaintiff M1/2021 at [24] quoting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at 406-407 [14].

66    Third, “[w]hat is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations” and the “[r]equisite level of engagement … will vary, among other things, according to the length, clarity and degree of relevance of the representations”: Plaintiff M1/2021 at [25] (footnotes omitted).

67    Fourth, the principles just identified do not detract from, and are not inconsistent with, the established principle that “if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument … that may give rise to jurisdictional error”: Plaintiff M1/2021 at [27] (footnotes omitted).

68    Those principles apply equally to the evidence submitted by an applicant as part of their representations. They also apply equally where the decision-maker is the Tribunal upon review of the decision of a delegate not to revoke a visa cancellation.

The Tribunal adequately considered the evidence and submissions relied on by the applicant

69    The applicant’s argument that the Tribunal did not consider his evidence and submissions to the requisite extent was based on two essential contentions: first, that the Tribunal did not refer to and therefore did not consider two statutory declarations made by Ms W that supported his claim that he only pushed and did not punch Ms W; and second, the general contention that the Tribunal did not engage with, bring to mind, or grapple with, his and Ms W’s evidence concerning the facts of the domestic violence offence. Neither contention has any merit.

70    As for the contention that the Tribunal did not consider two of Ms W’s statutory declarations, during the lengthy course of the decision-making process, the applicant provided five statutory declarations to either the delegate, the AAT or the Tribunal. All those statutory declarations were before the Tribunal. All of them relevantly included a statement by Ms W to the effect that the applicant pushed her and did not punch her. While the declarations varied in terms of the level of detail about that issue, and included some other statements, the essence of Ms W’s statement concerning the facts of the assault was the same in all of them. The Tribunal’s reasons referred to three of the statutory declarations, though one was only referred to in a footnote. It does not follow that the Tribunal ignored, overlooked or failed to consider or evaluate the contents of any the statutory declarations, including the one not expressly referred to in the reasons.

71    It is well established that a Tribunal is not required to refer in its reasons to every piece of evidence placed before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. Moreover, as was made clear in Plaintiff M1/2021, the requisite level of engagement with a particular item of evidence that is required for a valid exercise of power will vary having regard to the length, clarity and degree of relevance of that evidence. In this case, the Tribunal clearly engaged with the essence or critical point made in each of Ms W’s statutory declarations, that being that the applicant only pushed her during the assault. As has already been made clear, the Tribunal clearly engaged with that aspect of Ms W’s evidence and essentially rejected it or at least preferred the account of the assault contained in the contemporaneous documents.

72    In his submissions in this matter, the applicant did not identify any material evidence in the statutory declaration that was not expressly referred to by the Tribunal which was supposedly overlooked, ignored or not considered by the Tribunal. That is because there was no such evidence. The fact that the Tribunal did not expressly refer to that statutory declaration in its reasons was accordingly irrelevant.

73    As for the applicant’s contention that the Tribunal did not engage with, bring to mind, or grapple with, his and Ms W’s evidence concerning the facts of the domestic violence offence, as discussed earlier in the context of the applicant’s claim that the Tribunal’s reasons were illogical or irrational, it may perhaps be accepted that the Tribunal’s reasons for rejecting the applicant’s attempt to go behind the facts as found by the sentencing court in respect of the assault were brief. That said, it is readily apparent from the Tribunal’s brief reasons that it read, understood, evaluated and engaged with the applicant’s and Ms W’s evidence concerning the facts of the assault. Ultimately, however, the Tribunal concluded that the evidence was not such as to discharge the heavy onus or burden of showing why the facts as found by the sentencing court should not be accepted. In short, the Tribunal preferred the account of the assault contained in the contemporaneous police or court records.

74    The applicant’s argument that the Tribunal did not grapple with his evidence really amounted to little more than a complaint about the weight the Tribunal gave to his and Ms W’s evidence. The weight to be given to that evidence was, however, entirely a matter for the Tribunal.

MATERIALITY

75    It is strictly unnecessary to consider any issue in respect of materiality given that I have found that the Tribunal did not err as contended by the applicant. I should, however, note that, if I had found that the Tribunal’s finding or reasons for preferring the account of the events in the contemporaneous police and court records over the later accounts given by the applicant and Ms W were erroneous, it is at best doubtful that it could be concluded that any such error was a material error and therefore a jurisdictional error.

76    If the Tribunal did err as contended by the applicant, the only difference would be that in considering whether there was “another reason” for revoking the visa cancellation, the Tribunal would have had to take into account that the facts of the May 2019 assault offence involved a push and not any punches. Having read the Tribunal’s reasons as a whole, it is at best doubtful that it could be concluded there was a realistic possibility that the Tribunal’s decision could have been different if the Tribunal had proceeded on the basis of that minor difference in the underlying facts of the assault: cf MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12. It is, however, unnecessary to reach a concluded position in respect of materiality given the absence of any error on the part of the Tribunal.

CONCLUSION AND DISPOSITION

77    The applicant has failed to establish that the Tribunal made any jurisdictional error in hearing and determining his review application on remittal. His application for judicial review of the Tribunal’s decision will accordingly be dismissed. The applicant did not contend that costs should not follow the event if his application failed. Nor is there any apparent reason why costs should not follow the event. The applicant will accordingly be ordered to pay the Minister’s costs.

Associate:

Dated:    2 September 2026