FEDERAL COURT OF AUSTRALIA

Lafrenais v Minister for Immigration and Citizenship [2026] FCA 1290

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to quash the decision of the second respondent dated 4 February 2026.

2.    A writ of mandamus issue requiring the second respondent to determine the applicant’s application for review of the decision of the delegate of the first respondent not to revoke the cancellation of the applicant’s Class BB (Subclass 155) Five Year Resident Return Visa dated 12 November 2025 according to law.

3.    The first respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

OWENS J:

1    The applicant is a citizen of the United Kingdom who moved to Australia in 1976 at the age of 10, and has resided here ever since. The applicant was in a relationship with his wife for 37 years, until they separated in 2021. The applicant’s elderly stepfather resides in Queensland.

2    The applicant has achieved considerable academic and professional success. In 1991, he completed a Bachelor of Applied Science; in 1995, he completed a Bachelor of Optometry, receiving numerous prizes including the University Medal. Between 1996 and 2021, he worked as an optometrist, including at a practice he operated in Emu Plains since 2003. His work included treating children with visually related learning difficulties and the ophthalmic co-management of ocular conditions.

3    The applicant has also, however, been convicted of a number of offences, most of which were driving offences (including driving while affected by illicit drugs), and offences involving domestic violence. Most recently, on 5 November 2024, he was convicted in the Local Court on two counts of contravening an apprehended violence order, and one count of intentionally choking without consent. He was sentenced to an aggregate sentence of twenty months’ imprisonment, which was reduced to nineteen months on appeal to the District Court.

4    On 4 February 2025, following those convictions, a delegate of the Minister cancelled the applicant’s visa under section 501(3A) of the Migration Act 1958 (Cth), on the ground that the applicant failed the “character test” specified in section 501(6) of that Act, in that he had a “substantial criminal record” as defined in section 501(7).

5    On 5 February 2025, the applicant made representations to the Minister seeking revocation of the cancellation decision pursuant to section 501CA(4) of the Act. On 12 November 2025, another delegate of the Minister determined not to revoke the cancellation of the applicant’s visa.

6    The applicant then sought review of that decision in the Administrative Review Tribunal. On 4 February 2026, the Tribunal affirmed the delegate’s decision not to revoke the cancellation decision.

7    By an amended originating application dated 27 May 2026, the applicant seeks judicial review of the Tribunal’s decision. This Court’s jurisdiction in relation to such an application is conferred by section 476A(1)(b) of the Migration Act, and is, pursuant to section 476A(2), the same as the jurisdiction of the High Court under section 75(v) of the Constitution.

THE GROUNDS OF REVIEW

8    The applicant advances three grounds of review. Since it was not in dispute that the applicant failed the character test, they each relate to the Tribunal’s determination that there was not “another reason” why the cancellation of the applicant’s visa should be revoked, for the purposes of section 501CA(4)(b)(ii) of the Migration Act.

Ground One

9    The applicant’s first ground of review is that the Tribunal erred in failing to consider whether to allow a higher level of tolerance for the applicant’s criminal conduct in circumstances where he had lived in Australia for about 50 years, since he was 10 years old.

10    It is important to understand precisely how the applicant framed and developed his argument in support of this ground of review.

11    In advancing his case before the Tribunal, the applicant invoked what is sometimes called the “tolerance principle”. That is a shorthand reference to an idea that finds expression in paragraph 5.2(6) of Direction No. 110 (“Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”), being a direction issued by the Minister under section 499(1) of the Migration Act, with which the Tribunal was required to comply pursuant to section 499(2A). That paragraph, along with necessary context, is in the following terms:

5.2    Principles

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

…

(5)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited visa stay, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6)    With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

…

(8)    The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12    The applicant did not, however, contend that the error of the Tribunal lay in a failure to comply with Direction No. 110, constituted by a failure to have regard to the “tolerance principle” as a mandatory relevant consideration. Any such argument would have faced certain challenges, that I will identify below in addressing the Minister’s submissions.

13    Rather, the applicant’s argument was that the Tribunal had failed to consider a substantial argument that he had clearly raised before it, and which was of central importance to his case that the cancellation of his visa should be revoked. That submission was developed by reference to the decision of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [22], where their Honours held that “[i]n determining whether they are satisfied that there is ‘another reason’ for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations”. While a decision-maker is not required to treat every statement within representations made by a former visa holder as a mandatory relevant consideration, they cannot ignore the representations, and must, at minimum, “read, identify, understand and evaluate” them: Plaintiff M1 at [23]-[24]. The decision-maker does not necessarily need “‘to make actual findings of fact as an adjudication of all material claims’ made by the former visa holder”, and may determine for themselves the weight to be afforded to those claims, but “the requisite level of engagement … must occur within the bounds of rationality and reasonableness”: Plaintiff M1 at [24]-[25]. That “requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations”: Plaintiff M1 at [25]. Overlooking or ignoring a substantial and clearly articulated argument may give rise to jurisdictional error: Plaintiff M1 at [27].

14    In this case, the applicant made two representations about the tolerance principle to the Tribunal, in a revised statement of contentions dated 28 December 2025:

(a)    First, in relation to “the strength, nature and duration” of the applicant’s ties to Australia (which the Tribunal is required to consider pursuant to paragraph 8.3 of Direction No. 110), the applicant stated the following:

Duration: The Applicant has resided in Australia for 50 years, having arrived at age 10. He is, for all practical purposes, a product of the Australian community. Spending the most important period of psychological development of his life in Australia. The Applicant’s social and cultural identity is Australian. Under Para 5.2(6) of Direction 110, the Tribunal must consider that Australia has a higher level of tolerance for long-term residents.

(Underlining added.)

(b)    Secondly, in relation to the “expectations of the Australian Community” (which the Tribunal is required to consider pursuant to paragraph 8.5 of Direction No. 110), the applicant said:

The Applicant acknowledges the community’s high standards regarding protecting families from violence. The Respondent outlines the expectation of the Australian community to expel a non-citizen based on his offences of family violence.

Paragraph 5.2(6) of Direction 110 explicitly allows for a higher level of tolerance for those who arrived as young children.

The Applicant has lived 50 of his 60 years within Australia as a productive member of society, has contended with mental health issues which are attached to his offences, and demonstrates genuine introspection and clinical rehabilitation (as evidenced by Dr. Palk and Dr. Bahramali). The Applicant contends that the Australian community is also characterised by fairness and compassion, respect for honesty and owning the poor choices from our past, and extending an opportunity to reform.

(Underlining added.)

15    The applicant submitted that, although these representations were relatively brief, they were clear and significant, in that, given the severity of his offending, reliance upon the tolerance principle was one of the better arguments available to him. If his application was to be successful, the applicant submitted, the tolerance principle would likely be an important element of the reasoning underpinning the decision. In that circumstance, the Tribunal was required to resolve the issue expressly (even if that express consideration took the form of the Tribunal saying that it ultimately decided not to afford the applicant more tolerance, though it could have, or that it had afforded the applicant more tolerance, but still decided not to revoke the cancellation of his visa).

16    The applicant submitted that the Tribunal did not consider that argument at all. Rather:

(a)    At [72] of its reasons, the Tribunal recorded that the applicant’s “submission notes that Direction No. 110 allows for a higher level of tolerance for a person who arrived in Australia as a young child, once again noting that the Applicant had resided 50 of his 60 years in Australia”.

(b)    At [194] of its reasons, the Tribunal quoted the entirety of paragraph 5.2 of Direction No. 110 and said that that paragraph “provides overarching principles which the Tribunal has considered when reviewing the Applicant’s application”.\

(c)    At [304], the Tribunal said:

Having close regard to the principles in paragraph 5.2 of Direction 110, the Tribunal has taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision. The Tribunal has duly considered the matters raised by the Applicant in this review.

17    The applicant submitted that, to the extent that the Tribunal, in summarising the applicant’s argument as a whole, merely recorded what the applicant submitted about the tolerance principle, and later stated that it had “duly considered the matters raised by the Applicant in this review” and (at [309], and other places) was plainly “cognisant of the fact that [he] has resided in Australia for most of his life [since age 10]”, this did not amount to the requisite “reality of consideration” of his argument: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [45] (Rares and Roberston JJ); KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 111; (2022) 292 FCR 15 at [49] (Bromberg, Jackson and Feutrill JJ).

18    The Minister, in response, submitted that the Tribunal was not required to consider the tolerance principle in any particular way, given that it was not a mandatory relevant consideration. He relied, in that regard, on CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 (Colvin J) (which was upheld, in relevant respects, on appeal in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94; (2023) 412 ALR 502 (Logan, Sarah C Derrington, and Anderson JJ)), Donevski v Minister for Immigration and Citizenship [2026] FCA 248 (Jackson J), and Mitchell v Minister for Immigration and Citizenship [2026] FCA 703 (McEvoy J).

19    Further, he submitted that the Tribunal’s reasons disclosed a sufficient engagement with the argument put by the applicant. In addition to those aspects of the Tribunal’s reasons to which I have referred above, the Minister relied on the following:

(a)    At various point in its reasons, the Tribunal referred to the circumstances of the applicant’s arrival and residence in Australia (i.e., those matters showing that the applicant had resided in Australia for a long time, since the age of 10).

(b)    At [229]-[230], the Tribunal said the following:

The evidence indicates that the counts of domestic violence offending against [the applicant’s] ex-wife and Ms S were very serious and could have resulted in catastrophic outcomes for both victims in terms of injury or indeed death. The evidence indicates that there was an escalation in the seriousness of the Applicant’s domestic violence offending over time. Crimes of a violent nature against women are considered very serious the Australian Government [sic] and indeed the Australian community have no tolerance for this type of offending.

Overall, the Tribunal finds that the both the [sic] Applicant’s driving offence history and domestic violence offending history must be viewed very seriously.

(Emphasis added.)

The Minister submitted that this passage indicates that the Tribunal had synthesised all of the principles set out in paragraph 5.2 of the Direction (including, in addition to subparagraph (6), subparagraph (8), which provides that family violence may be so serious that even strong countervailing considerations cannot justify the revocation of a visa cancellation), and determined that it could not afford the applicant more tolerance because his offending was simply too severe.

20    In my view, the applicant is correct that the Tribunal did not engage with the representations through which he invoked the tolerance principle. In particular:

(a)    The fact that the Tribunal recorded a submission made by the applicant does not show that it engaged with the representations made by him in its substantive reasoning.

(b)    Nor does the fact that it quoted all of paragraph 5.2 of Direction No. 110 in a section setting out the relevant law mean that it had considered the applicant’s argument as to how an aspect of that paragraph should apply in this particular case: cf. AIE15 v Minister for Immigration and Border Protection [2018] FCA 610 at [33] (Perry J).

(c)    Equally, a conclusory statement that the Tribunal had had “close regard” to the principles in paragraph 5.2, and had “duly considered” all matters raised by the applicant does not demonstrate that it had actually done so in relation to a particular argument.

(d)    The fact that the Tribunal made factual findings that would be relevant to the application of the tolerance principle cannot in itself demonstrate that the Tribunal considered whether, and if so how, that principle should be applied and factored into the ultimate decision.

(e)    The only passage of the reasons that might even arguably be regarded as constituting a substantive engagement with the applicant’s argument does not, in my view, do so. That is to say, I do not accept the Minister’s submission that the reasoning at [229]-[230] of the Tribunal’s decision demonstrates that the Tribunal had synthesised all of the principles set out in paragraph 5.2 of Direction No. 110, and concluded that the applicant should not be afforded tolerance because his offending was too serious. Such a conclusion would necessarily involve a balancing or multi-faceted evaluation that there is simply no indication the Tribunal undertook. The passage in question focusses only on Australia’s tolerance for the “type of offending” in which the applicant had engaged. It does not mention, let alone address, the applicant’s submission that Australia’s tolerance for his particular offending should be higher than it otherwise would be for offending of the same kind by others in different circumstances, by reason of his having lived in the Australian community for most of his life, and from a very young age. There is simply no indication that the Tribunal turned its mind in any way to the particular representations made by the applicant. That conclusion is reinforced by the location of the passage relied upon by the Minister in a section of the Tribunal’s reasons headed “Nature and seriousness of the Applicant’s conduct to date”. That is to say, the relevant conclusion of the Tribunal is naturally to be understood as a finding regarding the “nature and seriousness” of the applicant’s offending (a matter required to be considered under paragraph 8.1.1 of Direction No. 110), rather than an evaluation of the tolerance to be afforded to the applicant in relation to that offending by reason of the various matters in relation to which he made particular representations.

21    It follows that I am satisfied that the Tribunal did not adjudicate a substantial and clearly articulated argument advanced by the applicant. That is a sufficient basis upon which to uphold the applicant’s first ground of review. That is to say, it is not to the point that the “tolerance principle” is not made a mandatory relevant consideration by Direction No. 110. The Tribunal’s obligation to consider and evaluate the applicant’s argument arose by reason of the way that the applicant put his case to the Tribunal.

22    The Minister submitted that the status of the tolerance principle as a “principle” (and not a primary or other consideration) under Direction No. 110 was still relevant, in that the level of engagement required in relation to a representation about a principle is less than that required in relation to a mandatory relevant consideration. In particular, the Minister submitted:

(a)    The chapeau of paragraph 5.2 of Direction No. 110 indicates that the tolerance principle, like the other principles enumerated in that paragraph, is part of “the framework within which decision-makers should approach their task”, but is not itself one of the factors (identified in Part 2 of the Direction) which must be considered in making a decision.

(b)    The language of subparagraph (6) is permissive, in that it provides that “Australia may afford a higher level of tolerance”, meaning that the decision-maker does not have to consider whether to do so.

(c)    Case law has established that a decision-maker is not bound to engage with the tolerance principle in any particular way (including, in the Minister’s submission, when raised by as an argument by a non-citizen). For instance:

(i)    In CWRG, Colvin J observed (at [26]-[28]):

Given [the tolerance principle’s] character it may be complied with by decision-makers (in the present case, the Tribunal) using the principle and the other principles as a framework or overall structure within which to undertake their deliberations. Unlike other provisions in the Direction (some of which are described below), the tolerance principle is not expressed as a consideration which the decision maker must take into account and attribute weight in the decision-making process …

After the Preamble, there is Part 2 of the Direction which is headed ‘Exercising the discretion’. It begins with the following provision (para 6):

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

It may be noted that it is the considerations that follow the above provision that are required to be taken into account by the Direction (where relevant). The requirement is that the principles in the Preamble, including the so-called tolerance principle, must inform the manner in which the identified considerations are taken into account …

… these aspects of the direction are not mandatory relevant considerations …

(ii)    In Donevski, Jackson J observed that:

(A)    The “principles in paragraph 5.2 are intended to provide a framework for approaching the task of whether to decide that there is another reason for revoking the cancellation of the visa, and are not mandatory relevant considerations …” (at [64]).

(B)    The broad and “deliberately indeterminate language [at the beginning of paragraph 5.2] does not mandate any mechanical application of the principles, as though they are rules to be applied in all circumstances, regardless of the circumstances. Rather, it is the mandatory considerations in Part 2 that must be taken into account (where relevant) and the principles provide a framework, in the sense of a guide” (at [71]).

(C)    In circumstances where the tolerance principle is but one of the principles articulated in paragraph 5.2 of Direction No. 110, the decision-maker is entitled to decide for itself how to synthesise, resolve any tensions between, and apply weight to, each principle in a given case (at [72]).

(D)    The permissive language in paragraph 5.2(6) of Direction No. 110 reflects “an implicit recognition that it is a guiding principle only, and the weight to be given to it will be a matter for the Tribunal to determine in the circumstances of the particular matter” (at [73]).

(E)    Paragraph 6 of Direction No. 110 says, in an open-ended way: “Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.” That open-ended language affords the decision-maker latitude as to how it applies the principles (at [74]).

(iii)    In Mitchell, McEvoy J said (at [22]-[24]):

Although on one view the Tribunal might have been more detailed in its consideration of the tolerance principle, I accept the Minister’s submission that, properly understood, the principle is one that informs the task of taking into account the various primary and other considerations that the Direction prescribes are to be taken into account … The Minister is correct to submit that the Tribunal is not bound to consider the principle in any particularly rigid way. It is a matter for the Tribunal to form a view as to whether, and if so in what way, in the circumstances, the principle should guide the process of taking the primary and other considerations into account …

As the Minister submits, it follows from this that nothing therefore required the Tribunal to apply the tolerance principle when addressing each of the considerations set out in the Direction, nor to make explicit reference to that principle in relation to each consideration so as to show that the principle was being applied. In this regard it is well-established that the Tribunal is not required to articulate every detail of its consideration of the weighing process …

In any event, the Minister is correct to submit that it is apparent on the basis of the Tribunal’s reasons that it did have regard to the tolerance principle: see at [21] where the Tribunal extracted the principle … and in its conclusion at [156] where it stated that the applicant had “been in Australia for over 57 years, arriving when he was 4 years of age, and Australia may afford him a higher level of tolerance of criminal conduct”.

Therefore, in the Minister’s submission, the Tribunal was not required to do anything in particular to engage with the applicant’s representation about the tolerance principle, and, in any event, what it had said in its reasons (including in setting out all the principles in paragraph 5.2, in referring at various points to the applicant’s circumstances in having arrived in Australia at a young age, and in saying that the Australian community has “no tolerance” for the applicant’s type of offending) was similar to the kinds of things which the above cases established are sufficient to discharge any obligation to consider that principle.

23    It seems to me, however, that those submissions do not grapple with a critical distinction between the issues arising in the cases upon which the Minister relied and the circumstances of the present case.

24    It is useful to identify precisely the arguments that were raised in those authorities:

(a)    In CWRG, Colvin J was addressing an argument that the Tribunal’s decision was legally unreasonable, for reasons that included the failure of the Tribunal to consider that aspect of paragraph 5.2(6) which refers to a non-citizen who has “lived in the Australian community for most of their life” in relation to the visa applicant (even though he had lived in Australia for more than half of his life), as opposed to merely considering that part of the paragraph which refers to a non-citizen who has lived in Australia “from a very young age”: at [46]. The relevant part of the Tribunal’s reasoning was as follows (as quoted in CWRG at [45]):

[The tolerance principle] further provides that the Australian community may afford a higher level of tolerance to this [Visa] Applicant’s criminal or other serious conduct if (1) the [Visa] Applicant has lived in the Australian community for most of his life, or (2) he has lived here from a very young age. At best, only the second element has possible application to the [Visa] Applicant. He lived in Australia, on a predominant basis, from January 1995 to March 2000, and from June 2008 to November 2018. Therefore, only the second of these elements is of assistance to the Applicant.

Thus, I am of the view that the Australian community’s expectations are not fundamentally modified by [the tolerance principle].

(b)    In Donevski, the argument was that the Tribunal had erred by failing “to accord [Mr Donevski] the level of tolerance required by paragraph 5.2(6)”: at [63]. The Tribunal in fact had applied the tolerance principle, albeit in a qualified way (which, on the applicant’s case, gave rise to an error). In its reasons, it said this (as quoted in Donevski at [27]):

… the principles [in paragraph 5.2] also note the increased tolerance afforded to non-citizens who have been in the community since from a very young age. This consideration applies to the Applicant who arrived when he was an infant. The Tribunal finds he would be afforded some additional tolerance for his offending behaviour. However, the repeated nature of his offending will have diminished that tolerance.

(c)    In Mitchell, the submission was made that the Tribunal failed to take into account relevant considerations because it “failed to properly apply what has been referred to as the ‘tolerance principle’ when considering the weight to be given to each of the relevant considerations under the Direction”: at [18]-[20]. A further argument was made that the Tribunal’s decision was legally unreasonable because, having regard to various factors noted by the Tribunal (including that the applicant had lived in Australia from a young age), it could not possibly have made the decision that it did if it had acted reasonably: at [47]. The Tribunal did explicitly consider the tolerance principle (though in a manner the applicant contended was insufficient), when it said that the applicant had “been in Australia for over 57 years, arriving when he was 4 years of age, and Australia may afford him a higher level of tolerance of criminal conduct”: Mitchell at [24]. The applicant’s argument, however, was that “the tolerance principle was so obviously engaged that it needed to be considered more explicitly than it was”: at [21].

25    Each of those cases may be seen to involve an alleged misapplication of the tolerance principle, independently of any particular argument or representation made by the non-citizen. None of them involved a failure to engage with a particular representation by the non-citizen that the principle should be considered and applied. It may be accepted, for the reasons given in those authorities, that absent some particular representation on the part of an applicant, Direction No. 110 is not particularly prescriptive as to how decision-makers might have regard to, or reference to, the tolerance principle in reaching their decision. But it does not follow that when the tolerance principle is invoked by an applicant in a particular way, the Tribunal does not have an obligation to address the particular representations that are made. (I would note, in any event, that in each of the authorities relied upon by the Minister the Tribunal did at least consciously advert to the tolerance principle and its application to the circumstances of the case. The same cannot be said in this case.)

26    Although Direction No. 110 has been given binding force by section 499(2A) of the Migration Act, the ultimate task of the delegate under section 501CA(4), and of the Tribunal on review, is to consider whether the non-citizen’s representations provide “another reason” why the cancellation of his or her visa should be revoked (or establish that he or she passes the character test): see, e.g., Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34(g)] (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ), quoted in KXXH at [51] (Bromberg, Jackson and Feutrill JJ). While, naturally, a non-citizen’s representations will be informed by the factors the decision-maker is required to consider under that direction, nothing prevents the non-citizen from raising other points in his or her case. That is, even if Direction No. 110 did not mention the tolerance principle, the applicant could have argued that the fact that he has lived in Australia from a young age, and for most of his life, was a reason why the cancellation of his visa should be revoked. Assuming that that argument was clearly articulated and important within the meaning of Plaintiff M1, the Tribunal could not ignore it. That being so, the fact that Direction No. 110 does mention the tolerance principle (albeit, not as a “primary consideration” or “other consideration”) cannot, in my view, obviate the need to engage with a case that invokes that principle. If anything, the fact that it is present in the Direction validates such an argument when it is presented as an important feature of a non-citizen’s case.

27    For those reasons I would uphold ground one.

Ground Two

28    The second ground of review was that the Tribunal denied the applicant procedural fairness in relation to its reliance on the prospect of the applicant and his estranged wife selling real property that they owned as joint tenants. The relevant finding of the Tribunal was as follows (at [300]):

The Tribunal notes in this respect that the Applicant is a joint tenant in a property in Croydon Park which appears to be unincumbered [sic]. In the event the Applicant and his ex-wife sold that property, he would be able to utilise the proceeds of sale to assist him in securing accommodation in the United Kingdom.

29    That passage was contained within the Tribunal’s reasoning as to the legal consequences of the decision under section 501CA of the Migration Act, and in particular, the extent of impediments the applicant would face if removed from Australia (as it was required to consider under paragraph 9.2 of Direction No. 110). The Tribunal’s finding responded to the applicant’s contention that those impediments would include a risk of homelessness, given the strain upon the social housing system in the United Kingdom and the economic barriers the applicant would face in that country.

30    In the applicant’s submission, the prospect of selling the property was a “critical issue” to which the Tribunal had to offer him the opportunity to respond, because it was an adverse conclusion in relation to his argument concerning the risk of homelessness that was not obviously open on the known material: see Minister for Home Affairs v Smith [2019] FCAFC 137 at [17] (Jagot, Perry and Markovic JJ). This alleged breach of procedural fairness was said to be material because the Tribunal’s decision “could, not would, ‘realistically’ have been different had there been no error”, a requirement which, the applicant noted, “is not demanding or onerous”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) (original emphasis). That was so because “the applicant might have addressed [the issue] by way of further evidence or submissions” (see LPDT at [15]). The applicant affirmed an affidavit in which he said that had the Tribunal raised this point, he would have said, among other things, that his wife had been renting out the upper floor of the Croydon Park premises, that that was her primary source of income, and that any attempt to compel the sale of that property would be a “contested, costly and protracted exercise” with an indeterminate return to the applicant.

31    The applicant submitted that the Tribunal’s finding was not obviously open because he had perpetrated domestic violence against his wife and had not been in contact with her since that offending, though he remained hopeful for a reconciliation in the future. In that circumstance, the applicant submitted, it was unlikely that there would be a consensual sale of the Croydon Park property. Further, the applicant argued that it was not obvious that there could be any “non-consensual realisation” of the property, because that would involve the applicant attempting to prosecute litigation in the Supreme Court of New South Wales after being deported to the United Kingdom with no job prospects, with a history of being self-represented, and facing a risk of homelessness.

32    The applicant submitted that this circumstance was analogous to the case of Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507. In that case, Griffiths J determined that the Refugee Review Tribunal should have given SZTQS the opportunity to respond before finding that a family member would provide surety for bail if he were returned to Sri Lanka (which was part of that Tribunal’s response to SZTQS’s contention that he would suffer harm at the hands of Sri Lankan police): at [60]. Such a finding was not an “obvious and natural evaluation” of the evidence, because no submissions were made, or evidence provided, on SZTQS’s behalf about surety, and the Minister (in submitting that the Tribunal’s decision should be upheld) had rather “selectively referred to evidence that might tend to indicate wealth on the part of SZTQS’s family, whilst ignoring evidence that pointed to the contrary”: at [66]. The applicant in this case emphasised that Griffiths J had reached that conclusion even though SZTQS had given evidence that his mother had paid for his bail in the past (i.e., the fact that an applicant’s evidence touches on a matter does not mean that the Tribunal’s finding on that matter is obviously open).

33    The Minister in this case, on the other hand, submitted that SZTQS should be distinguished, because:

(a)    The Tribunal did not reason or make findings contrary to the evidence. It “noted” a mere possibility consistent with the evidence. In that regard:

(i)    The use of the word “notes” near the beginning of the relevant passage in [300] of the Tribunal’s reasons indicates that the Tribunal was not at that point reaching a conclusion, but “going through a reasoning process”.

(ii)    The words “[i]n the event” at the beginning of the following sentence further indicated that the Tribunal regarded the prospect of selling the property as “something unknown in the future”.

(b)    The Tribunal therefore did not go further than making an obvious point that the applicant had a significant asset, which could yield a financial benefit if sold. That was a reasonably anticipated, or “common sense”, response to a representation about homelessness.

(c)    The Tribunal correctly adverted to and understood the representation being made about the possibility of experiencing homelessness.

(d)    It was for the applicant to put sufficient material before the Tribunal to satisfy it of the homelessness representation. It was obviously open to the Tribunal to doubt the accuracy of that representation relying on the evidence from the applicant. This circumstance was said to be analogous to the case of Tikomaimaleya v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 199. In that case, the appellant contended that he would not have the financial means to access any medical treatment he required if removed to Fiji. The Full Court decided that it was obviously open to the Minister to doubt the accuracy of that contention given the absence of any explanation as to why the appellant’s family could not pay for some of that treatment (in circumstances where his wife worked full-time and his adult son was employed), or why the appellant himself could not do so given the superannuation he could be expected to have accumulated: at [30]-[35] (Rangiah, Downes and Kennett JJ); and see [10].

34    As to materiality, the Minister submitted that the Tribunal could not realistically have made any other conclusion than the one it did, given the paucity of information provided by the applicant about the Croydon Park property. (As to that evidence, the applicant had advised the Tribunal that he and his wife jointly owned the property with no outstanding mortgage, and that his wife was renting it while living elsewhere.) In the Minister’s submission, the new affidavit affirmed by the applicant did not take matters any further than the evidence before the Tribunal, in that there was still no evidence from the applicant’s estranged wife as to her preparedness to sell the property, and the applicant still could not provide definitive information about the value of the property or his equity in it. In other words, the sale of the property was a speculative prospective, the Tribunal did no more than note that that was so, and it would have remained so had the Tribunal raised the matter with the applicant.

35    Ultimately, I consider that ground two must fail once the Tribunal’s reasons are properly understood. The Tribunal did not make any finding about the likelihood of the Croydon Park property being sold. What it did say was conditional: “In the event [that the property was sold, the applicant] would be able to utilise the proceeds of sale to assist him” (emphasis added). That statement is, self-evidently, correct (and nothing the applicant could have said could alter that conclusion). The Tribunal did not make any finding about the actual likelihood of the sale occurring, or reason to a conclusion from any premise concerning the likelihood of a sale, which means that the issues on which the applicant might have given further evidence could not have affected the conclusion that the Tribunal did reach. Nor do I consider that, as the applicant submitted, the prospect of the sale was so remote, or “some years down the track”, such that it was not open to the Tribunal to note that prospect at all. It suffices to observe that the Tribunal proceeded on the basis that the difficulties identified by the applicant would exist, and “should be given some weight in favour of revocation”. As such, I am not satisfied that the Tribunal made an adverse conclusion that had to be raised with the applicant, nor, in any event, that it said anything beyond what was obviously open to it to say.

36    For those reasons, I would dismiss ground two.

Ground Three

37    The third ground of review was that the Tribunal misunderstood the applicant’s evidence about his efforts to obtain re-registration as an optometrist, in that the Tribunal had taken the applicant’s reference to one unsuccessful attempt to do so to mean that he would never be re-registered. The applicant submitted that this was a form of illogicality or irrationality, relying upon the case of Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309. In that case, it was determined that because the Tribunal misunderstood the appellant’s references to “rizolos” (or “rissoles”) as a reference to “risottos”, it had fallen into jurisdictional error: at [69]-[72] (Griffiths and Moshinsky JJ, Logan J agreeing).

38    As to materiality, the applicant in this case submitted that it was realistically possible that a different outcome could have prevailed absent the alleged error: see Gill at [82]; CDH16 v Minister for Immigration and Border Protection [2018] FCA 668 at [75] (Kerr J). In the applicant’s submission, the error precluded any weight being given to his contention that he could resume providing a vital health service if his visa cancellation were revoked, as is relevant to the decision’s “impact on Australian business interests” (which the Tribunal must consider under paragraph 9.3 of Direction No. 110).

39    The background to this alleged error is as follows.

40    At the hearing before the Tribunal, the following exchange occurred (in the context of discussing stressors the applicant might face in the community, and the risk of relapsing into alcoholism):

Member:     … Has this offending history or period of incarceration and the cancellation of your visa had any impact on your ability to seek re-registration as an optometrist and work as an optometrist? Is there any impediments to that? Because that would be another major stressor. If your criminality has led to your inability to regain registration as an optometrist, which has been the source of living for the majority of your life, is that going to cause incredible stress? The fact that you’re not going to be able to re-establish a relationship with your wife [is] going to cause stress, how are you going to handle major triggers like that?

Applicant:    I’ve already implemented applications to [the Australian Health Practitioner Regulation Agency] regarding re-registration. They’ve turned it away this first time and they’ve said while I’m serving a custodial sentence, they don’t believe that I represent a good character to be representative of the profession. They’ve invited me to reapply when I have finished my custodial sentence, which I’ve already done.

Member:    Alright.

Applicant:    I’ve already put that one to bed in terms of…

Member:    But you’re not sure as to what the outcome of that is going to be.

Applicant:    This brings me onto the next point, which is that I’ve already made remonstrations towards getting employment via my previous degree. I can go in as a lab technician to work in a pathology company to support myself during the time that I’m awaiting the decision from AHPRA.

Member:    Okay, so you’ve got some plans with respect to that. Alright, [t]hank you …

41    The Minister’s lawyer then asked the applicant about his living arrangements, having regard to the fact that his Alcoholics Anonymous meetings took place in Strathfield, but there was some prospect of his becoming a carer for his stepfather, who lived in Queensland. As to whether that would in fact occur, the following exchange occurred:

Respondent’s lawyer:    But you also indicate that you’re going to be a carer for your stepfather. What was the plan?

Applicant:    It depends on whether or not I get released and the time frames that are involved. So if I’m released, I have to organise what will happen because my residence is still… I still have my stuff and my belongings in the property.

…

Respondent’s lawyer:    So is your ultimate plan to move to Queensland or stay in [unintelligible]?

Applicant:    As I said, I’m going to negotiate with my father if I can get him to come down to me and stay with me. It would certainly be more beneficial because that way I don’t have to change my registration with AHPRA as well, because there’s a different set of hoops I need to jump through to get into Queensland and to practi[s]e.

42    In his revised statement of contentions, the applicant submitted the following as to the impact on Australian business interests of the decision concerning his visa:

A significant impact on Australian Business has already been achieved by the Applicant, which is as follows:.

Optometric Practice: The Applicant operated a successful practice in Emu Plains since 2003 …

While the practice was interrupted by his incarceration, his return to the community would allow him to seek re-registration and potentially resume providing a vital health service (optometry) to a particularly vulnerable sector of the local community (learning disabled children) where he has 20 years of professional history.

…

43    The applicant also referred to the following materials before the Tribunal:

(a)    The applicant’s original application to the Tribunal, in which he said that the decision had denied him the opportunity to “resume practice of Optometry for children with visually related learning difficulties”.

(b)    A statement of the applicant, including details of his personal history and representations as to why the cancellation of his visa ought to be revoked, which said:

I’m keen to return to clinical practice and positively engage pathways to remediate my aberrant behaviour …

…

I have reapplied for optometric registration through AHPRA. They have invited me to submit my application after my custodial sentence has been completed. If I were to be sent back to the United Kingdom I would be without qualifications as there is no reciprocal agreement in place between academic bodies …

(c)    A letter from the applicant to the Department of Home Affairs dated 19 September 2025, which included the following:

If granted the opportunity by the Department of Home Affairs, my immediate focus is to support my ailing stepfather, seek reconciliation with my wife, and concentrate on reestablishing my career. I note that Optometry appears on the Core Skills Occupation List for immigration to Australia.

(d)    A “Relapse Prevention Plan”, which stated that “I will work with AHPRA to ensure my registration requirements are met, providing structure and professional purpose to my week”.

(e)    A response to the decision of the delegate, in which the applicant said, in his concluding remarks, that “I wish to return to serving the Australian community as a primary care practitioner”.

(f)    A “letter of insight” filed by the applicant in the Tribunal proceedings, in which he referred to his “planned return to contributing to the Australian community in a professional role” and asked for the opportunity “to remain in the only home I know, to provide assistance in the care for my father, and to contribute my professional skills to the Australian community once more”.

44    The paragraph of the Tribunal’s reasons that is said to give rise to error is as follows (at [155]):

The Tribunal noted that there appeared to be a number of prospective stressors in the event that the Applicant was released into the community. The first was his hope to reconcile with his ex-wife. The second was whether he would be able to obtain registration as an optometrist because of his offending history. The Applicant stated that the regulatory authority for optometrists would not reregister him given that he had been the subject of a custodial sentence and that he would probably look for work as a laboratory technician.

45    That paragraph was contained within the Tribunal’s summary of the review hearing. Later on, in a section of the Tribunal’s reasoning that considered the risk to the Australian community should the applicant commit further offences, it said this (at [245]):

As noted, the Applicant’s learning has not been tested outside of a supervised environment and his experience in prison and detention and has not been tested against the stressors of day-to-day life in the community. These stressors will no doubt be exacerbated by the Applicant’s ongoing estrangement from his ex-wife and the limited evidence pointing to any prospect of reconciliation. The Applicant also gave evidence that because of his criminal offending and term of imprisonment, that his attempt to seek reregistration as an optometrist failed because and [sic] that he was hoping to find work as a laboratory technician. The Applicant has identified that as a 60-year-old, it would be challenging to find work in the United Kingdom in the event that he was deported, and the Tribunal finds that those difficulties would exist within Australia and that employment challenges could act as a stressor.

46    In considering the strength, nature and duration of the applicant’s ties to Australia, the Tribunal also said (at [268]):

It is unfortunate that the Applicant’s career has been sidelined as a consequence of his alcoholism, illicit drug use and criminal offending behaviour over time. Given the Applicant’s academic skills and breadth of experience, the Tribunal finds that this represents a significant skill loss to the Australian community. The Applicant stated he hoped to overcome the difficulties in seeking re-registration as an optometrist by hopefully obtaining work as a laboratory technician in the event that he is released into the community.

47    Lastly, the applicant submitted that the following passage (at [282]), in which the Tribunal considered that the applicant’s work history was not relevant to the visa decision’s impact on the “best interests of minor children” (for the purpose of paragraph 8.4 of Direction No. 110), indicated that the Tribunal had not recognised the applicant’s desire to return to work in the same field:

The Applicant is claiming that the Tribunal with respect to this consideration should consider the fact that he had undertaken a special interest in children with learning difficulties and the connection with ocular disease. This is no doubt an admirable aspect of the Applicant’s past work history. However, in the Tribunal’s view this aspect of the Applicant’s work history does not fall within the parameters of this primary consideration in Direction 110.

48    For the following reasons, I am not persuaded that what the Tribunal said is inconsistent with the applicant’s evidence, or involves any misunderstanding of his case.

49    On the applicant’s case, the sentence of the Tribunal’s reasons (at [155]) which recorded the applicant as having said “that the regulatory authority for optometrists would not reregister him given that he had been the subject of a custodial sentence” means that AHPRA will not ever re-register the applicant, not just that it had not done so on the occasion he had applied while still serving his custodial sentence. The applicant also submitted that it was inaccurate to use the phrase “given that he had been the subject of a custodial sentence”, because the barrier to the applicant’s re-registration was not that he had at some point prior to his application served a custodial sentence, but was serving that sentence at the time of his application (and has since completed it). That inaccuracy, and the fact that the Tribunal had not mentioned the prospect of the applicant resuming work as an optometrist (as opposed to work as a laboratory technician only) in the other passages of its reasons I set out above, was said to reflect a misunderstanding that the applicant’s criminal history was a permanent obstacle to obtaining re-registration.

50    Read in context, however, it seems to me that what the Tribunal said at [155] was not intended to exclude the prospect of the applicant obtaining re-registration. That paragraph focusses on “prospective stressors” that might exist immediately upon the applicant’s release into the community. It indicates that “whether [the applicant] would be able to [re-]obtain registration” was such a prospective stressor (i.e., that it was an open issue for the future). At the hearing, the applicant did not dispute the proposition that he was “not sure as to what the outcome of [further applications to AHPRA] is going to be”. Instead, he referred to seeking work as a laboratory technician in the meantime. On that evidence, it was plainly open to the Tribunal to regard the applicant’s prospects of re-registration as uncertain, and to consider that that uncertainty could, at least for some time, cause stress jeopardising the applicant’s efforts towards rehabilitation. I do not think that the Tribunal at [155] purported to say anything more than that. It is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Whatever scope there is to cavil with the particular tenses or wording used by the Tribunal, [155] can be read as meaning, and I am satisfied that it does mean, that the applicant stated that AHPRA would not re-register him once before, because he had at that time been serving a custodial sentence, and that he would look to work as a laboratory technician in the immediate future (i.e., unless and until a further application was successful).

51    I am also not persuaded that anything the Tribunal said elsewhere in its reasons means that [155] should not be read in the way I just described. That is:

(a)    The Tribunal’s comments at [245] accurately record that the applicant had stated that his attempt (i.e., his first attempt) to seek re-registration as an optometrist had failed because of his term of imprisonment, and that he was hoping to find work as a laboratory technician. Anything beyond that (as in, a further statement that such work was to be sought only on an interim basis) was contingent on the outcome of a future, as yet unknown, decision by AHPRA. In any event, at [245], much like in [155], the Tribunal was setting out “the stressors of day-to-day life in the community” which could threaten the applicant’s rehabilitation. It made no finding beyond that “those difficulties [as to finding work] would exist within Australia and that employment challenges could act as a stressor”. In circumstances where the outcome of the re-registration process remained unknown, that much is true, regardless of whether the applicant might eventually return to work as an optometrist.

(b)    At [268], I do not take the reference to the applicant’s “difficulties in seeking re-registration”, which he hoped to overcome by seeking work as a laboratory technician, as referring to an impossibility of seeking re-registration. The Tribunal was simply saying, again, (and consistently with the unchallenged proposition that re-registration remained uncertain, and in any event had not yet been achieved) that the applicant might encounter some difficulty obtaining work in his field immediately upon his re-entry into the community, but could address that difficulty by seeking alternative work in the meantime.

(c)    In my view, the Tribunal’s comments at [282] are not relevant to this issue. As to the suggestion that that paragraph should have referred to the prospect of the applicant returning to the kind of work described in that paragraph, it suffices to observe that the Tribunal is not obliged to set out every piece of evidence, and certainly not at a point in its reasons where that evidence is not the basis of any findings: see ETA067 v Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003 at [13] (Bell, Keane and Gordon JJ). In circumstances where the Tribunal did not consider the applicant’s work history involving children relevant to the “best interests of minor children affected by the decision” (as opposed to, for instance, any familial relations affected by that decision), on no view was the Tribunal required to say anything about the prospect of continuing that work at that juncture in its reasons. I would not, therefore, attach any significance to its silence about that prospect at [282].

52    I note also that at [74], the Tribunal had in fact recorded the applicant’s submission that his “return to the community would allow him to seek re-registration and potentially resume providing a vital optometry health service to the community”. While the applicant submitted that that paragraph was not relevant to the Tribunal’s understanding of the applicant’s evidence (as opposed to his statement of contentions, which the Tribunal was then summarising), it does, I think, indicate that it cannot be inferred from any particular omission about the details of the applicant’s evidence concerning re-registration that the Tribunal had misunderstood or totally overlooked that aspect of his case.

53    I am therefore not satisfied that the Tribunal had misunderstood the applicant’s evidence concerning re-registration as an optometrist. I would thus dismiss ground three.

Conclusion

54    As the applicant has succeeded on the first ground of his application, a writ of certiorari will issue quashing the Tribunal’s decision.

Associate:

Dated:    8 September 2026