Federal Court of Australia

GQHJ v Minister for Immigration and Citizenship [2026] FCA 1305

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.    The decision of the second respondent dated 15 July 2024 be quashed.

3.    A writ of mandamus issue requiring the second respondent to consider the applicant’s application dated 23 April 2024, for review of the decision of the delegate of the first respondent, according to law.

4.    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

DOWLING J

Introduction and background

1    The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal. That decision affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), not to revoke the mandatory cancellation of the applicant’s Refugee (class XB) subclass 200 visa.

2    The applicant complains that the Tribunal failed to consider a submission of substance, made unreasonable and erroneous findings, and reached unreasonable and illogical conclusions. The applicant seeks an order quashing the decision of the Tribunal and an order requiring it to determine his review application according to law. The Minister says there was no error in the Tribunal’s reasons or approach.

3    The reasons of the Tribunal are detailed and comprehensive: GQHJ v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2630 (Tribunal decision). The reasons set out the background to the applicant’s application before the Tribunal. It is sufficient for the purposes of the application in this Court to explain the following background.

4    The applicant was born in Sudan in 2001. He has lived in Australia since he was 12. He is now 25. The applicant explained to the Tribunal that he fled to Uganda at age eight or nine, when his father was fighting as a soldier in civil war in Sudan and what is now South Sudan. Both his parents have died. He said he lived in Uganda for two years while his uncle arranged visas to Australia. He explained witnessing atrocities during the war. He came to Australia on the refugee visa with his aunt and cousins.

5    The applicant has been convicted of a number of criminal offences. The most relevant of those offences to the Tribunal’s consideration include the following. On 10 September 2020, he was convicted in the District Court of New South Wales (NSW) for “Robbery in Company-SI” committed on or around 30 December 2019 (Robbery offence). The robbery involved stealing a cap and jacket from the victim whilst in the company of others. The applicant was sentenced to two years and three months’ imprisonment with a non-parole period of 15 months. On 14 November 2021, while on parole, the applicant was arrested for the offences of “Affray-T1” (Affray offence), “Refuse/fail to comply with Direction under Part 14” and “Assault officer in execution of duty-T2” (Assault offence), all of which arose from events on that day. He was convicted in the NSW Local Court for these offences on 14 August 2023, and sentenced to an aggregate of 22 months’ imprisonment for the Affray offence and Assault offence with a 14-month non-parole period. The circumstances of those convictions are considered in greater detail below.

6    On 14 December 2021, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa granted to a person, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record and the person is serving a sentence of imprisonment for an offence against a law of the Commonwealth or a State. That substantial criminal record includes where the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

7    On 17 February 2022, the applicant requested revocation of the mandatory cancellation. On 14 November 2022, he was removed to Villawood Immigration Detention Centre. On 10 April 2024, a delegate of the Minister decided not to revoke the mandatory cancellation of his visa. On 23 April 2024, the applicant applied to the Tribunal for review of that decision.

8    On 15 July 2024, the Tribunal affirmed the non-revocation decision. The Tribunal provided written reasons for that decision on 22 July 2024. On 12 August 2024, the applicant lodged for filing in this Court an application for judicial review of the Tribunal’s decision. The applicant’s counsel advises that the applicant was released into the community on a bridging visa on 18 November 2024. The grounds of review were amended by an amended originating application filed on 14 August 2025.

9    For the reasons explained below, one of the errors alleged by the applicant is made out. Accordingly, I make orders quashing the decision of the Tribunal and requiring it to consider the applicant's application for review of the decision of the delegate of the Minister according to law.

Legal framework

10    Section 501CA(4)(b) of the Act provides that the Minister may revoke a decision to cancel a visa under s 501(3A) if the Minister is satisfied (i) that the person passes the character test; or (ii) that there is another reason why the original decision should be revoked. The applicant accepted before the Tribunal that he did not pass the character test on the basis of his criminal record, and this finding is not challenged on the present application. The issue before the Tribunal was whether the delegate’s decision should be revoked for “another reason”.

11    In determining that issue, the Tribunal was bound under s 499(2A) of the Act to comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. That is a direction made by the Minister under s 499 of the Act. Direction 110 provides that a decision-maker must take into account the primary considerations and other considerations provided in Direction 110. The primary considerations are: (1) the protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the strength, nature and duration of ties to Australia; (4) the best interests of minor children in Australia; and (5) the expectations of the Australian community.

12    Direction 110 provides that the primary consideration of protection of the Australian community at (1) above is generally to be given greater weight than other primary considerations, but that otherwise primary considerations should generally be given greater weight than the “other” considerations. The other considerations include, but are not limited to: (1) the legal consequences of the decision; (2) the extent of impediments if removed; and (3) the impact on Australian business interests.

13    Paragraph 8.1(1) of Direction 110 provides that when considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government.

14    In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39], Mortimer J said that the “trend of authority in this Court supports the proposition that in order to give effect to the terms of s 499(2A) … a failure by a decision-maker or Tribunal to comply with a clear obligation imposed by a s 499 direction should be characterised as meaning the decision-maker or Tribunal constructively failed to exercise its jurisdiction, or strayed outside its jurisdiction”. That was cited with approval in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; 305 FCR 26 at [101] (McDonald J, Katzmann and Dowling JJ agreeing). I accept that a material failure to comply with a clear obligation imposed by Direction 110 will be a jurisdictional error.

15    The Court’s task in this application is to ascertain whether any of the errors alleged by the applicant were jurisdictional errors. In most cases, for a jurisdictional error to be found, the error must have been material, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

The alleged errors

16    The amended grounds of review allege the following errors in the Tribunal decision.

17    First, the applicant says that the Tribunal failed to consider a submission of substance regarding primary consideration 1, the protection of the Australian community. The applicant says that the Tribunal failed to consider that protection of the Australian community would be better served by the applicant’s prompt release back into the community pursuant to a revocation decision, as opposed to further immigration detention where his mental health and risk of offending would worsen, and therefore his risk of offending would be higher by the time he rejoined the community.

18    Second, the applicant says that the Tribunal’s finding at [169] that the nature and seriousness of the applicant’s conduct weighs “very heavily” against revocation pursuant to para 8.1.1 of Direction 110 was based on unreasonable and erroneous findings and is itself an unreasonable conclusion. In particular, the applicant alleges:

(1)    the Tribunal misconstrued and misapplied Direction 110, in the manner described by the Full Court in BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14; 307 FCR 150 at [107] (Rangiah and Rofe JJ), by failing to “assess for itself” the nature and seriousness of the applicant’s conduct and instead treating the views of the Australian government and community as deemed by para 8.1.1(1)(a) and (b) as determinative of the present case, and as restricting the Tribunal’s categorisation of the applicant’s conduct as only ‘serious’ or ‘very serious’;

(2)    the Tribunal made illogical findings about the applicant’s criminal conduct, namely that the Robbery offence was “serious” and the Affray offence was “very serious”;

(3)    the conclusion that the applicant’s offending demonstrated “a trend of increasing seriousness” was illogical and unreasonable; and

(4)    the Tribunal’s ultimate conclusion at [160] that the “seriousness of GQHJ’s relevant offending weighs very heavily against revocation” was based on the errors identified above and was itself unreasonable. In oral submissions, the applicant clarified that this is not a separate error, but is a conclusion of unreasonableness based on the errors in sub-grounds (1)-(3).

19    Third, the applicant says the Tribunal erred in its consideration of primary consideration 4, regarding the best interests of minor children in Australia. The applicant says that the Tribunal’s conclusion that the best interests of the applicant’s minor cousins only “weighs marginally in favour” of revocation of the cancellation decision is an illogical conclusion for two reasons:

(1)    It was an illogical conclusion in circumstances where the Tribunal had found on the one hand that there would be a traumatising impact on the four minor children during their formative years if the applicant was removed from Australia, but then, on the other hand, there was only a potential negative impact on the children if the applicant offended in future, where the applicant had only a low to moderate risk of reoffending.

(2)    In circumstances where the minor cousins were of such differing ages, this raised the possibility that there would be some qualitative difference between the interests of those children such that the Tribunal should have considered their interests separately, or at least inquired as to whether there were relevant differences between their interests for the purposes of considering Direction 110.

The Failure to consider submission

20    The applicant says that the Tribunal failed to meaningfully engage with a submission that the protection of the Australian community (primary consideration 1) would be better served by the applicant’s prompt release back into the community pursuant to a revocation decision. This argument was directed to para 8.1.2 in the Direction and the ‘risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct’. Paragraph 8.1.2 relevantly provides:

…

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen reoffending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

21    There was no dispute that where a decision-maker’s reasons disclose that a “substantially and clearly articulated argument” was ignored, overlooked or misunderstood, that may give rise to a jurisdictional error: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ). The parties disagreed about whether the Tribunal considered the particular submission.

The counterfactual

22    The applicant says his submission invited the Tribunal to weigh two counterfactuals against each other: first, where the Tribunal revokes the cancellation decision, and with his visa reinstated the applicant is released into the community immediately, where he would continue to undergo rehabilitation and his risk of re-offending would continue to reduce; and second, where the Tribunal refuses to revoke the cancellation decision, resulting in the applicant remaining in immigration detention where his mental health would worsen such that when the applicant would later be released into the community on a bridging visa he would pose a higher risk of re-offending.

23    The applicant relies on DVRL v Minister for Immigration and Citizenship [2025] FCA 876. At [35] Bromwich J considered that where a visa holder will remain in the Australian community regardless of the visa decision, and depending on the circumstances, there may be a need for an evaluation of competing risks and mitigations of risks which flow from their presence in the community were they to be granted a particular visa, compared to the risk which flows from their presence were they not. Justice Bromwich considered that in applying Direction 110 to that case, because of the evidence and arguments put by the applicant, the Tribunal had an obligation to assess the risk posed if the applicant remained on a bridging visa compared to if he was granted a protection visa. The applicant says the reasoning in DVRL should be applied here. I note that since the hearing in this matter, the Full Court delivered a decision on appeal from DVRL: Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73; 316 FCR 477 (DVRL FCAFC). The Full Court dismissed the appeal and found no error in the primary judge’s reasoning that in some cases the evaluative assessment of risk required by Direction 110 may require attention to distinct counterfactuals, each of which involving the former visa holder or visa applicant remaining in the Australian community: see [54] (Lenehan J, Perry and Stellios JJ agreeing).

24    I am not satisfied that the application of the counterfactual is appropriate in the applicant’s circumstances. The submission rests on an assumption that the applicant would necessarily have returned to the Australian community at some point. While he was released on a bridging visa on 18 November 2024, this was not certain or clear at the time of the Tribunal’s decision on 15 July 2024. Further possibilities were available at the time of the Tribunal’s decision. They included that the visa cancellation would not be revoked, and the applicant would either remain in detention and then be removed from Australia without returning to the Australian community, or that the applicant could be released (whether or not) on a bridging visa only later to be removed from Australia. It was also a possibility that the applicant would apply for a protection visa in the event of non-revocation, which if granted would result in his release to the community but if refused may or may not lead to his return to the community (depending at least in part on whether a protection finding might be made in respect of him).

25    These possibilities being available, I accept the Minister’s submission that DVRL is distinguishable. That case concerned a non-citizen in respect of whom a protection finding had been made, who was affected by the decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 and held a bridging visa at the time of the Tribunal’s decision: DVRL at [6]-[7], [19]. It was not contentious that DVRL was going to remain in the community regardless of the outcome of the Tribunal’s decision. In the present matter, the applicant was in immigration detention and without a visa at the time of the Tribunal’s decision, no protection visa application had been made by him nor had a protection finding been made in respect of him, and it was no certainty that the applicant would be released into the community.

26    In Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84; 310 FCR 421, the Full Court said that in considering para 8.1.2(2) of Direction 99 (which is in the same terms as para 8.1.2(2) of Direction 110), an assessment is to be made about the risk to the Australian community that may flow from the grant or non-cancellation of a visa, and that it would make little sense if para 8.1.2(2)(b) required decision-makers to have regard to the risk to the Australian community were a visa not to be granted (or not reinstated): at [73]-[74] (Banks-Smith, Feutrill and Vandongen JJ).

27    While Bromwich J in DVRL distinguished Mizen on the basis that it did not apply to members of the NZYQ cohort (at [34]), Bromwich J said at [31] that the reasoning of those passages in Mizen is “essentially one of logical reasoning of the kind that was of universal application before NZYQ was decided, and remains applicable outside the NZYQ cohort”. In DVRL FCAFC, Lenehan J explained the qualification that even before NZYQ, the Act contemplated at least some circumstances in which a person whose visa was refused would nonetheless remain in the community, but that he agreed with Bromwich J’s reasoning at first instance as to why Mizen did not apply to DVRL since he would remain in the community regardless of the Tribunal’s decision in that case: DVRL FCAFC at [91]-[92] (Perry and Stellios JJ agreeing). Given that there was no certainty that the applicant would be released from immigration detention in the event of a non-revocation decision by the Tribunal, I accept that Mizen is relevant to the present matter.

28    Having regard to those authorities, I consider that the Tribunal was not bound to weigh up the counterfactuals said to be raised by the applicant’s submission. Consistent with Mizen, the Tribunal was not required to consider the risk to the Australian community were the visa of the applicant to remain cancelled. I find that there was no error in the Tribunal’s reasoning on this basis.

The Tribunal’s consideration of the submission

29    I turn now to whether the Tribunal did actually fail to consider the submission that the protection of the Australian community (primary consideration 1) would be better served by the applicant’s prompt release back into the community pursuant to a revocation decision. It is necessary to set out the relevant parts of the Tribunal’s reasons.

30    In its consideration of primary consideration 1 at [186], the Tribunal explained:

For completeness, the Tribunal notes that Mr Hall recommended further and more comprehensive psychological treatment for GQHJ, such as in relation to his PTSD symptoms and complex grief, but that these interventions were unsuitable in the immigration detention setting and given GQHJ’s psychological state. He outlined a range of treatment that would be available to GQHJ if released into the community. GQHJ would therefore continue to receive what amounts to ‘maintenance’ sessions if he remained in detention after the Tribunal’s decision. Additionally, there was evidence that GQHJ had expressed enthusiasm and motivation to be involved in other psychological support programs offered by STARTTS if he is released into the community. While all of these supports would undoubtedly assist in GQHJ’s rehabilitation and most likely reduce his risk of reoffending, the Tribunal must consider the likelihood of a non-citizen engaging in further criminal or other serious conduct based on evidence of rehabilitation achieved by the time of the decision, pursuant to paragraph 8.1.2(2)(b)(ii) of Direction 110. The Tribunal again notes that decisions should not be delayed in order for rehabilitative courses to be undertaken. However, the Tribunal accepts that it is likely that prolonged detention, which is discussed further below in these reasons, would have a negative impact on GQHJ’s mental health, engagement and motivation, and therefore, likely adversely impact the level of risk of reoffending.

(Footnotes removed.)

31    Later at [255]-[256], in considering the “consequence of a non-revocation decision” in the context of considering the “other considerations” under s 9 of Direction 110, the Tribunal considered possible outcomes including where the applicant proceeds to apply for a protection visa after non-revocation, as he stated he intended to. The Tribunal stated:

In that regard, the Tribunal also accepts that if GQHJ is ultimately released into the community as an unlawful non-citizen or subject to bridging visa conditions, these scenarios will necessarily restrict his movements, activities and ability to fully reintegrate into the Australian community and likely lead to adverse consequences for GQHJ and the community. That is, if GQHJ is not granted a protection visa and is released into the community, it is likely that his liberty will be highly constrained. However, equally, that outcome may have advantages from the perspective of community safety and is far less damaging than either refoulement contrary to Australia’s international treaty obligations or prolonged, but not indefinite, detention.

The Tribunal accepts that a further period of immigration detention would likely be lengthy given the time that can be involved in the consideration of protection visa applications and associated potential administrative and judicial processes or other legislative avenues. That is, ultimately a non-revocation decision in this proceeding would mean a period of prolonged immigration detention for GQHJ. As GQHJ’s treating psychologist, Mr Hall, and the Clinical Psychologist, Ms Lechner told the Tribunal, such an outcome could have serious adverse consequences for GQHJ, especially his mental state, and potentially the Australian community in relation to the risk of him reoffending in the future. In detention, the Tribunal finds that GQHJ’s mental health will likely deteriorate because of his continued uncertain status in this country and inability to fully address, among other things, his complex PTSD and grief, and he will continue to be physically separated from the community, his family and partner and other available protective factors, including additional support from STARTTS. GQHJ’s mental state in these circumstances may deteriorate such that his present motivation and engagement in rehabilitative efforts either diminishes or ends to the detriment of himself and, at some possible point in the future, the community.

(Footnotes removed.)

32    The applicant says that the consideration in [255]-[256], of the possibility of the applicant being released into the community in the future after a further period of prolonged detention in which his mental state deteriorates, and the potential detriment to the community that might arise from that scenario, was not factored into the Tribunal’s consideration of primary consideration 1. The applicant says that while the evidence about the impacts of prolonged detention on the applicant was dealt with by the Tribunal in the course of considering the legal consequences of the decision on the applicant, it did not properly grapple with the contention as it applied to primary consideration 1. That is, the contention that prolonged detention will increase his risk of reoffending upon later release into the community, such that the protection of the Australian community would be better served by his release at the time of the Tribunal’s decision when he posed a lower level risk of reoffending, which the applicant proposes is a reason why primary consideration 1 should have been weighed in favour of rather than against revocation. The applicant says the failure of the Tribunal to deal with this argument is material in the sense discussed in LPDT.

33    The Minister submits that the Tribunal “understood the claim that was actually put to it” and that it did “deal in substance with the matter that was put to it”.

34    It is well settled that the Tribunal does not have to refer to every piece of evidence presented to it, nor to reference every contention made in written submissions: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ). However, the Tribunal must genuinely engage with the submissions made: Plaintiff M1/2021 at [27].

35    I am satisfied that the Tribunal considered the substance of the argument, that protection of the Australian community should weigh in favour of revocation because the applicant would pose a lower risk of reoffending at the time of the Tribunal decision than after a possible period of prolonged detention, and that it engaged with that argument but was not persuaded by it.

36    I accept, as the Minister contended, that the Tribunal considered the relevant evidence (at [99], [120], [138], [140]) and then discussed that evidence within that part of the reasons dealing with primary consideration 1: at [180], [181], [184] and [186]. While [255]-[256], extracted above, fall under the heading of “Other considerations” within the subheading “Consequence of a non-revocation decision”, the Tribunal’s reasons must be read as a whole: Minister for Immigration and Border Protection v SZUSU [2016] FCAFC 50; 237 FCR 305 at [41] (Tracey, Flick and Katzmann JJ) and the cases there cited.

37    Further, in [186] (under the heading “The risk to the Australian Community should GQHJ commit further offences or engage in other serious conduct”) the Tribunal referred to the “likely … negative impact” of “prolonged detention” on “GQHJ’s mental health, engagement and motivation” which it said would “likely adversely impact the level of risk of reoffending”, stating that matter was “discussed further below in these reasons”. I accept that this supports the Minister’s oral submission that the paragraphs in the two parts of the Tribunal’s reasons are to be read together. It also clearly demonstrates even when considering primary consideration 1, that the Tribunal at [186] was engaging with the substance of the applicant’s submission.

38    I am satisfied that, read as a whole, the reasons demonstrate that the Tribunal understood the submission that was being made to it, that prolonged detention would be detrimental to the applicant’s mental health and that he might be better off in the community, and that the community might be better off in the event of his earlier release as a result, and that it engaged with and dealt with that proposition. In particular, while acknowledging the evidence about more favourable future rehabilitation prospects in the community (including the STARTTS programs), the Tribunal reinforced at [186] and [192] that in its assessment of the likelihood of future offending it was only required by para 8.1.2(2)(b)(ii) of the Direction to take into account “evidence of rehabilitation achieved by the time of the decision” (emphasis added). This is part of the reason why the Tribunal, acknowledging the applicant’s submission, was not persuaded by it. This ground of the amended application is therefore not made out.

Findings as to the seriousness of relevant offending

39    The applicant submits that the Tribunal’s finding at [160], that the seriousness of the applicant’s relevant offending weighs “very heavily” against revocation, was based on a number of errors and was ultimately unreasonable. The applicant says this ground is a composite ground relating to the Tribunal’s application of para 8.1.1 of Direction 110. Those sub-grounds are summarised at [18] above. The Minister accepted that if I were to find that the Tribunal made any of these errors then the threshold of materiality would be met.

Did the Tribunal misconstrue and misapply Direction 110?

Paragraph 8.1.1 of Direction 110 and the applicable legal principles

40    In considering the primary consideration of the ‘protection of the Australian community from criminal or other serious conduct’, para 8.1(2) of Direction 110 requires a decision maker to give specific consideration to the “nature and seriousness of the non-citizen’s conduct”. That consideration is guided by para 8.1.1(1). It is necessary to set out that paragraph:

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i. violent and/or sexual crimes;

ii. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

…

c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

e) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

f) the cumulative effect of repeated offending;

g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

i) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

(Emphasis added.)

41    In BNY23, the Full Court considered whether the Tribunal had erred in its consideration of the applicant’s offending under a direction (Direction 99) in the same terms as para 8.1.1 of Direction 110. At [31], Rangiah and Rofe JJ considered a finding by the Tribunal that:

… the Applicant’s conduct clearly involves repeatedly committing violent crimes and crimes of a violent nature against women. Accordingly, my finding is that the Applicant’s offending engages sub-paragraph 8.1.1(1)(a)(i) and is property [sic] characterised as “very serious”.

42    Their Honours explained, at [102]-[103], that para 8.1.1(1)(a) (and by extension 8.1.1(1)(b)) only requires consideration of “the types of crimes” committed. They explained that once the Tribunal has determined that some of the offender’s conduct was within the types of crimes listed in 8.1.1(1)(a), it was required only to have regard to the fact that those types of crimes, “are viewed very seriously by the Australian Government and the Australian community”. The circumstances in which those types of crimes were committed were irrelevant to engagement of para 8.1.1(1)(a). Further, they explained that the view of the Australian Government and the Australian community deemed by para 8.1.1(1)(a) was only one of the factors bearing upon the Tribunal’s assessment of “the nature and seriousness of the non-citizen’s conduct”. In other words, that assessment was to be made by having regard to each and all of the relevant matters at 8.1.1(1)(a) to (i).

43    At [107] Rangiah and Rofe JJ concluded that the Tribunal had “misconstrued paragraph 8.1.1(1)(a) because that provision does not require the Tribunal to characterise offending as ‘very serious’. Paragraph 8.1.1(1)(a) only requires that decision-makers ‘have regard to’, relevantly, the view of the Australian Government and the Australian community that ‘violent’ crimes and ‘crimes of a violent nature against women’ are ‘very serious’.” Their Honours continued that it is evident that such crimes may range from common assault to murder and that their seriousness and nature may also vary widely. They explained that the Tribunal was not bound by the expressed view of the Australian Government and the Australian community to regard the appellant’s offending as “very serious”. Rather they said, “the Tribunal was required to assess for itself, ‘the nature and seriousness of the non-citizen’s criminal offending’, and the weight that should be attributed to that factor” (emphasis added).

44    The approach described by the majority in BNY23 was summarised and applied by SC Derrington J in Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [26]-[28].

45    While both BNY23 and Siale post-dated the Tribunal’s decision, no issue was taken by the parties with the applicability of those cases, and the approach explained in those cases, to the present case, although the Minister sought to distinguish them.

Consideration

46    The applicant submits that the Tribunal did not properly assess the issue of seriousness for itself, and so committed the error identified by BNY23.

47    As to the Affray offence and Assault offence, at [155] of the Tribunal’s decision it found that the applicant’s offending included violent crime, which it appropriately observed “is viewed ‘very seriously’ by the Australian Government and the Australian community, pursuant to paragraph 8.1.1(1)(a)(i)” of the Direction. Likewise, at [156] it said that para 8.1.1(1)(b)(ii) of Direction 110 “states that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are considered by the Australian Government and the Australian community to be ‘serious’”. No issue arises from those statements.

48    However, after assessing the circumstances of those offences at [156], the Tribunal concluded that “for the above reasons” it was “satisfied that GQHJ’s assault against a police officer in the performance of their duties was very serious conduct pursuant to paragraph 8.1.1(1)(a)(i) of Direction 110” (emphasis added). Then at [157] it said that it “finds that GQHJ’s criminal conduct involved in the Affray Offence was also ‘very serious’ under paragraph 8.1.1(1) of Direction 110”. After setting out some additional explanation, the Tribunal again concluded, at [158], that “[f]or these reasons the Tribunal finds that GQHJ’s criminal conduct involved in the Affray Offence was ‘very serious’ under paragraph 8.1.1(1) of Direction 110”. It is those conclusions that the applicant says comprised the type of error identified in BNY23.

49    Similarly, for the Robbery offence the Tribunal concluded that it was “satisfied that GQHJ’s Robbery Offence was ‘serious’ pursuant to paragraph 8.1.1(1)(b) of Direction 110” (emphasis added). And after further explanation it said, “the Tribunal finds that the Robbery Offence was ‘serious’ pursuant to paragraph 8.1.1(1)(b) of Direction 110” (emphasis added).

50    Immediately following those findings, expressed to be in respect of paras 8.1.1(1)(a) and (b) only, the Tribunal set out at [160] that it “finds that the seriousness of GQHJ’s relevant offending weighs very heavily against revocation of the Cancellation Decision”.

51    The Tribunal then explained that it was “[t]urning to consider” 8.1.1(1)(c) and addressed that paragraph followed by paras 8.1.1(1)(d) to (i). That is, the Tribunal expressed its conclusions as to how ‘serious’ the applicant’s offending was and how it weighed the seriousness of that offending, before it had regard to the considerations in paras 8.1.1(1)(c) to (i).

52    Notably also, when the Tribunal addressed para 8.1.1(1)(e), namely “whether there is any trend of increasing seriousness”, the Tribunal referred to its earlier findings by reference to paras 8.1.1(1)(a) and (b). At [165] it parenthesised “(being the Robbery Offence which the Tribunal has found to be ‘serious’ under Direction 110)” and the Affray offence “(which the Tribunal has found to be ‘very serious’). And later in the same paragraph “(the Assault Officer offence, which the Tribunal has found to be very serious under Direction 110)”. This reinforces the applicant’s complaint that findings on seriousness were discretely made under paras 8.1.1(1)(a) and (b).

53    I am bound by the approach in BNY23. I consider it to be the correct approach to the assessment of the nature and seriousness of the applicant’s conduct by reference to Direction 110. I appreciate that the Tribunal did not have the benefit of the Full Court’s reasoning in BNY23, nevertheless I consider that the reasons of the Tribunal referenced above demonstrate error for the following reasons.

54    First, the Tribunal approached paras 8.1.1(1)(a) and (b) on the basis that those paragraphs required a characterisation of the offences as either “serious” or “very serious”. Consistent with that erroneous approach it made findings based on that dichotomy. The Tribunal found that part of the applicant’s conduct was “very serious” and another part “serious”. In doing so the Tribunal did not demonstrate an appreciation that the conduct of the applicant needed to be considered in all the circumstances on a spectrum of seriousness, rather than as being a choice between only two discrete categories: see LPDT at [44] (Beech-Jones J). While the Tribunal at [155] and [159] correctly observed that, as stated in para 8.1.1(1)(a) and (b), “the range of conduct that may be considered ‘very serious’ and ‘serious’ is not limited by the terms of Direction 110”, that observation does not satisfy me that the Tribunal appreciated that seriousness was to be assessed on a spectrum and need not fall within those binary characterisations.

55    Second, and relatedly, the Tribunal described those findings as being made “pursuant to” or “under” paras 8.1.1(1)(a) and (b), and treated those paragraphs as though they mandated one of those two labels to apply to the conduct listed under them. Rather, as explained in BNY23, the “nature and seriousness of the non-citizen’s criminal offending or other conduct to date” was for the Tribunal to assess for itself. In doing so, the Tribunal was to determine as a factual description whether the conduct fell within the “types of crimes or conduct” enumerated in paras 8.1.1(1)(a) and (b) and then have regard to the fact that those types of conduct are, respectively, “viewed very seriously” or considered “serious” by the Australian Government and the Australian community. That regard was not to bind the way the Tribunal ultimately assessed for itself what the nature and seriousness of the conduct was, by reference to all of the circumstances and the considerations at 8.1.1(1)(a) to (i).

56    Third, and again relatedly, the proper approach was for the Tribunal to assess for itself, “the nature and seriousness of the non-citizen’s criminal offending or other conduct to date” while having regard to each and all of the relevant matters in 8.1.1(1)(a) to (i). Rather, the Tribunal came to a conclusion about seriousness of the applicant’s offending when considering 8.1.1(1)(a) and (b) and then turned to separately consider matters (c) to (i). So much is reinforced by both [160] and [165] of the Tribunal reasons. As explained, at [160], and before considering (c) to (i), the Tribunal “finds that the seriousness of [the applicant’s] relevant offending weighs very heavily against revocation of the cancellation decision”. While the Tribunal reached a further conclusion at [169], that the “nature and seriousness … weighs very heavily against revocation”, that conclusion as to weight does not contain a distinct finding about seriousness, and must instead rely on the intermediate finding of seriousness at [160]. Likewise, at [165] the Tribunal referenced what it “has [already] found” about seriousness by reference to its earlier findings of ‘very serious’ and ‘serious’ under (a) and (b), rather than expressing its conclusion about seriousness only after the consideration of (a) to (i). The structure of the reasons and the basis on which the Tribunal comes to the intermediate conclusion at [160] discloses that it treated the considerations in (1)(a) and (b) as though they were of elevated importance in its assessment of para 8.1.1(1).

57    Each of these somewhat distinct ways in which the Tribunal erred which the applicant highlighted in oral submissions reveals a misunderstanding of the Tribunal’s task applying Direction 110, and so a constructive failure to exercise its jurisdiction: YNQY at [39]. In DVRL FCAFC at [46], [60]-[62] Lenehan J (with whom Perry and Stellios JJ agreed) extracted with approval the reasoning of Perry J in Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; 227 FCR 562 at [83]. There her Honour explained that a “fundamental aspect of the scheme” established by the relevantly similar direction before her, is that:

aside from prescribing relevant considerations in a jurisdictional sense, [it] provides guidance only in this sense as to the manner in which they are to be balanced ... It equips decision-makers with a width of discretion that enables them to take into account the myriad of different circumstances and different combinations of circumstances that may arise and thereby to reach a result that is fair and rational in all of the circumstances, while ensuring that account is had to those considerations that the legislator has identified as crucial to a lawful decision.

It is that width of discretion that the Tribunal in this case erroneously treated as constrained by para 8.1.1(1)(a) and (b), for the reasons described above.

58    Lastly, I am unable to accept the Minister’s submission that the complaint is one directed at the infelicities of the language used, and that ultimately the Tribunal weighed 8.1.1(1)(a) to (i) and reached its conclusion at [169]. For the reasons explained, the approach to the consideration of (a) and (b) misconstrued the treatment of those paragraphs in a way inconsistent with the proper approach expressed in BNY23. The erroneous conclusions reached about those paragraphs was material to the required overall assessment of seriousness under para 8.1.1 of Direction 110 in the sense described in LPDT, as the Minister in oral submissions conceded it would be in the event I found error. The Tribunal thereby committed jurisdictional error.

Did the Tribunal make illogical findings that the Robbery offence was “serious” and that the Affray offence was “very serious”?

59    As a separate specific error, the applicant complains that the Tribunal’s findings that the Robbery offence was “serious” and the Affray offence was “very serious” were illogical or legally unreasonable on the evidence and material before the Tribunal. The applicant makes this submission additionally and alternatively to the argument that para 8.1.1 of Direction 110 was not properly applied in the BNY23 sense. Even though I have found jurisdictional error in the sense described in BNY23, I turn now to this separate argument on the alternative assumption that there were no BNY23 types of jurisdictional errors; that is, I assume for the purpose of the following analysis that the Tribunal assessed the seriousness of each offence for itself and determined that the respective offences were “serious” and “very serious”, and I consider whether these conclusions were illogical or legally unreasonable on the material before the Tribunal. The below analysis does not change my conclusions expressed above that there were indeed such jurisdictional errors.

Principles as to illogicality or unreasonableness

60    The principles relevant to the assessment of whether the Tribunal has made illogical or unreasonable findings are not in dispute. They can be summarised as follows.

61    In King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at [53]-[54], Anderson, Feutrill and Raper JJ explained that first, review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised. Second, in circumstances in which reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of the power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. Third, a decision may be legally unreasonable if it is shown to be arbitrary or capricious, or to abandon common sense, or if it lacks an evident and intelligible justification.

62    The threshold for legal unreasonableness is usually a high one: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] (Kiefel CJ); Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

Robbery offence

63    The applicant says that it was illogical and unreasonable for the Tribunal to find that the Robbery offence was serious, in circumstances where the sentencing judge described the offending as “not a serious form of robbery in company”, and where the Tribunal’s reasons acknowledge the incident was short in duration, had little planning and minimal monetary value of stolen goods involved. The applicant says notwithstanding that the offence was in company and involved a threat of violence, greater weight should have been afforded to the sentencing judge’s evaluation of the conduct.

64    The circumstances of the robbery are described by the sentencing judge as follows, in sentencing remarks that were before the Tribunal:

[GQHJ] born in 2001, and [co-offender] born in 2001, were the offenders. The victims were [Victim One] and [Victim Two]. At about 12.10am on Sunday 29 December 2019 the two victims were walking through Mackenzie Boulevard next to the Westpoint Shopping Centre in Blacktown. They were going to the library.

[Victim One] was wearing a grey jacket with a black Nike tick on the left valued at $110 and Nike baseball cap which was valued at $70. When walking along David Lane they noticed four male Sudanese and two female Sudanese young people sitting on chairs. [Co-offender] said “Where are you from?”, [Victim One] said “Kenya”. [Co-offender] said “No, I'm from around here. Take this off, man”. The four males approached the two victims. [GQHJ] removed [Victim One’s] cap. [Victim One] said “Don't touch my cap. I need that. It's mine”. [GQHJ] put the cap behind his back and passed it to another male in the group [GQHJ] said “I want that shirt. Take it off”. [Victim One] said “No, come on, man. It's a vest, not a shirt”. [GQHJ] said “I don't care. I don't care”.

[Mr A], another male in the group said a couple of times “If you don't give the jacket he'll bash you”. [Victim One], fearing for his safety, took the jacket off. [GQHJ] snatched it from him. [Victim One] said to [GQHJ] “That's a gift. You can have that”. [GQHJ] said “I don't care”. [Co-offender] noticed a mobile phone on [Victim One] and tapped it and said “I want that”. [Victim One] said “Don't touch my phone. You can't have it”. The two females were telling the males to stop what they were doing.

A gap was created in the men surrounding the two victims and they took this opportunity to run away. They were told by [Mr A] “You'd better not have snitched”. The offenders went to Kmart shopping centre. Police saw them on CCTV. They could identify this offender from previous dealings with him. He was arrested, taken to the Blacktown Police Station on 5 January 2020. Participated in a record of interview, identified him on the CCTV footage. He also identified his co-accused … and [Mr A]. He told the police he had been drinking and could not remember very much. He was charged as principal in the offence.

65    The sentencing judge continued to discuss the seriousness of the offence:

There was limited or no planning involved and there was little monetary value in the items stolen. In contrast to the guideline judgment [R v Henry [1999] NSWCCA 111; 46 NSWLR 346] no weapon was used although there was a threat and the offenders were in company. Whilst that is an element of the offence, I take into account there were more than two persons surrounding the victims and that increases the objective seriousness of the offending behaviour and underlines the nature of the threat by their presence they brought to bear upon the victims.

The duration, as I said, was short. The victims could not be considered vulnerable as a consideration under the guideline judgment that is relevant in relation to some people as a result of their occupation who are victims of this type of offending behaviour.

There was an early plea, which again is in contrast to the guideline judgment. Taking into account the circumstances surrounding the commission of the offence I am satisfied the offence was committed whilst he was under the influence of alcohol at least and possibly drugs. That does not excuse his behaviour but it does explain it to some extent.

The fact that it was an opportunistic and unplanned offence, the Crown says places the offence below the objective seriousness as identified in the guideline judgment. Mr Zoutendijk, on behalf of the offender, submits it is at the lower end of objective seriousness. I am satisfied it is towards the lower end of objective seriousness by the nature of the offending. Whilst the circumstances surrounding the offence would have been distressing to the two young victims men the offence was not a serious form of robbery in company.

66    The applicant also drew attention to the following passage in the sentencing remarks when submitting that the sentencing judge did not specifically find the applicant’s offending to be “unprovoked” or “intimidatory”:

Offences of this kind where young men intimidate other young men or other members of the community by robbing them whilst in company in extremely intimidating circumstances and with a considerable degree of underlying bullying, in one respect, is conduct the public abhors and those who may be minded to commit offences of this kind need to be deterred by sentencing that emphasise upon general deterrence.

67    As explained, the Tribunal found at [159] that the Robbery offence was “serious” pursuant to sub-para 8.1.1(1)(b) of Direction 110. The Tribunal accepted there was no violence involved, but that there was a threat of violence made at the time of robbery, although by one of the applicant’s co-offenders. The Tribunal considered that while the offence was short in duration, with little planning and minimal monetary value involved, it was committed by the applicant in company and was found to be unprovoked and intimidatory. The Tribunal also considered the remarks of the sentencing judge which stated that the offence was committed while the applicant was under the influence of at least alcohol and possibly drugs, and that this explained his behaviour to some extent but did not excuse his behaviour. The Tribunal also noted the remarks of the sentencing judge that the suitability of sentencing the applicant to emphasise “general deterrence” was “limited” due to his “moral culpability” for the Robbery offence being “to some extent” “diminished”. However, despite that finding, the sentencing judge also stated that there was some need for a degree of emphasis upon “specific deterrence” to ensure the applicant took the opportunity afforded to him and did not reoffend.

68    Putting the BNY23 error to one side and imagining the Tribunal to have properly approached para 8.1.1(1), I am not satisfied that the Tribunal’s conclusion that the Robbery offence was “serious” meets the threshold of illogicality in the sense that that assessment of the offence was not open to the Tribunal on the evidence before it. First, undoubtedly reasonable minds might differ as to the conclusion, however, that is not sufficient to establish illogicality. Second, the sentencing judge’s conclusion that the applicant’s “robbery in company” was “not a serious form of robbery in company” was an assessment amongst the spectrum of robbery in company. It does not render the Tribunal member’s conclusion, that the robbery was “serious”, illogical. Third, I am satisfied that the Tribunal sufficiently justified its conclusion. It explained that, while there was no violence and the offending was short with little planning, there was a threat of violence by a co-offender, it was in company, and it was unprovoked and intimidatory. While the sentencing judge may not have used the words “unprovoked” or “intimidatory” specifically in relation to the applicant’s offending, it was open to the Tribunal to construe the sentencing judge’s description of the offending as giving rise to those findings.

Affray offence

69    The applicant says that it was illogical and unreasonable for the Tribunal to find that the Affray offence was “very serious”.

70    The available evidence of the Affray offence was limited to a police fact sheet. While the sheet refers to video footage being recorded by a witness, and while the Tribunal referred to this fact, the applicant confirmed that the video footage itself was not reviewed by the Tribunal. The police fact sheet states that on 14 November 2021 the accused was in the company of around ten other males, one of whom ordered an Uber. Upon it arriving, some of the group entered the car. They were asked to get out because there were not enough seats to take all of them. An unidentified member of the group jumped on the bonnet, and when he was asked to remove himself he assaulted the driver. The group of males “within the vehicle and outside the vehicle have then all started physically assaulting” the driver. The driver sustained a range of injuries. The fact sheet is not explicit about the applicant’s specific role in the incident, other than explaining that he was in the group of 11 people and was arrested, though handwritten text inscribed on the fact sheet stated the applicant was “identified in” the video footage taken by a witness and was “observed to be fighting with the other males”. The ‘Antecedent’ to the summary of facts on the fact sheet stated that the driver was unknown to the applicant and the co-offenders and “the Accused was completely unprovoked in this attack and inflicted injuries”, although it was not clear whether the injuries were inflicted by the applicant specifically, or which injuries. I did not understand the fact sheet to unambiguously suggest that the applicant was one of the persons who assaulted the driver.

71    The applicant’s evidence given to the Tribunal is summarised at [52] of the Tribunal’s decision:

GQHJ said that, on 14 November 2021, he drank for the first time in months and committed the Affray Offence and the Assault Officer Offence. He was not using any drugs at that time. He pled guilty, but appealed the sentence and told the Tribunal that he was found ‘not guilty’ for the Affray Offence against the Uber driver. GQHJ said that he had ‘nothing to do with the Uber driver’. It was put to GQHJ that there was nothing in the material before the Tribunal regarding that contention. GQHJ referred to subsequently being on remand for the Affray Offence and ‘they told me’ they would adjourn the criminal proceeding so he should ‘just plead guilty and get it out of the way’. As a result, GQHJ was referred to his written statement regarding ‘footage’ of the incident and he agreed in his oral evidence to the Tribunal that he was involved, but was charged with ‘being there’, not for ‘bashing the Uber driver’. He told the Tribunal that he was ‘trying to help out the Uber driver’ and was ‘fighting the people bashing the Uber driver’.

(Footnotes removed.)

72    The Tribunal’s findings at [157] and [158] are:

In addition, based on the evidence before the Tribunal, and noting again that this did not include the Court’s sentencing remarks, the Tribunal finds that GQHJ’s criminal conduct involved in the Affray Offence was also ‘very serious’ under paragraph 8.1.1(1) of Direction 110. While not explicitly a violent crime on the evidence in this proceeding, the crime of affray in NSW is one where a person is guilty of using or threatening ‘unlawful violence’ towards another person and ‘whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety’. As set out above, based on the available evidence, GQHJ was, at a minimum, present during the violent and unprovoked attack on an Uber driver by multiple people and GQHJ’s presence led to him being convicted of the Affray Offence. According to the NSW Police Facts Sheet, the victim was punched, kicked, stomped on and hospitalised. The Tribunal again notes that GQHJ was 20 years old and suffering from alcohol and other substance abuse disorders at the time of this offending, which it can be accepted somewhat reduced his moral culpability. The Facts Sheet further noted that GQHJ was identified in video footage obtained by police to be ‘fighting with the other males’. It was unclear whether this statement referred to GQHJ fighting against the other people carrying out the attack on the Uber driver or fighting with them in their attack against that victim. For the avoidance of doubt, the Tribunal accepts that it was the former for the purpose of this consideration. GQHJ told the Tribunal that he had ‘nothing to do with bashing the Uber driver’, he was ‘trying to help out the Uber driver’ and was ‘fighting the people bashing the Uber driver’.

In any event, and accepting that caution must be exercised where there were no definitive sentencing remarks, but only a contemporaneous Police Facts Sheet before the Tribunal, GQHJ was convicted of the Affray Offence after pleading guilty to that crime. Based on the elements of that offence, the Tribunal is satisfied that GQHJ’s use or threat of unlawful violence would have caused another person at the scene to fear for their personal safety. During the same period of time following the Affray Offence, GQHJ failed or refused to comply with a direction from police to leave the scene and then proceeded to commit the aforementioned Assault Officer Offence. As stated above, at the time of the Affray Offence, GQHJ was on parole in the community following serving the 15 month non-parole period for the Robbery Offence. For these reasons, the Tribunal finds that GQHJ’s criminal conduct involved in the Affray Offence was ‘very serious’ under paragraph 8.1.1(1) of Direction 110.

(Footnotes removed.)

73    In his submission that the Tribunal’s conclusion was illogical and unreasonable, the applicant directs attention to the Tribunal’s acknowledgement that the offending was not explicitly a violent crime on the evidence before it, that there was some doubt as to exactly what the applicant’s role in the offending was, and that the Tribunal accepted that the applicant was fighting against those attacking the Uber driver rather than involved in that attack. Given those findings, the applicant says it is illogical to assess the conduct as “very serious”.

74    Again, putting the BNY23 error to one side and focusing on whether the Tribunal’s finding was open to it on the evidence before it or had a logical basis, I am not satisfied that the Tribunal’s conclusion meets the threshold of illogicality or legal unreasonableness.

75    Again, while reasonable minds might differ as to the conclusion, that is not sufficient to establish illogicality. I accept that the applicant pleaded guilty to the elements of affray and that there is some seriousness once the elements of that offence have been established or admitted. As the Tribunal explained, the elements of the offence of Affray in s 93C of the Crimes Act 1900 (NSW) of which the applicant was convicted involve (a) using or threatening unlawful violence towards another person and (b) the conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. A third element is that the person “intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence”: s 93D(2). I am satisfied that the Tribunal explained its justification for the conclusion at [158] above by reference to the fact that the applicant had pleaded guilty to and was convicted of the offence comprising those elements. Further, I am satisfied that it was open for the Tribunal to take into account that at the time of the Affray offence the applicant was on parole for the Robbery offence. I am satisfied that in all the circumstances the conclusion was, as the Minister submitted, within the decisional freedom given to the Tribunal and does not reach a threshold of irrationality or illogicality.

Assault offence

76    To the extent that a submission was put that the Tribunal was illogical to find the Assault offence was “very serious”, I do not accept that submission. At [155]-[156] of its reasons, the Tribunal records that the applicant spat on a police officer in the context of being directed to leave the location of the Affray offence, that he was on parole at the time of the offending, and that there were factors that moderately diminished the applicant’s moral culpability. I do not consider it illogical to the requisite threshold for the Tribunal to find that the Assault offence was “very serious” in these circumstances.

Finding that the applicant’s offending demonstrated “a trend of increasing seriousness”

77    Sub-paragraph 8.1.1(1)(e) of Direction 110 provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.

78    The Tribunal dealt with this sub-paragraph of the Direction at [163]-[166] of its reasons. At [163] the Tribunal summarised the applicant’s relevant offending history as including the Robbery offence, an offence committed in October 2021 of possessing a prohibited drug for which he was fined $250, the Affray offence, the offence of failing to comply with a direction to move on from the site of the affray, and the Assault offence. At [164], the Tribunal said that “in a period of less than two years, from December 2019 to November 2021, GQHJ committed five relevant criminal offences and, during that period, had spent 15 months in custody and gaol related to the first of those offences, being the Robbery Offence”. The Tribunal was “satisfied that GQHJ engaged in frequent criminal offending”.

79    At [165]-[166], the Tribunal considered the applicant’s trend of increasing seriousness. It said:

165. The Tribunal is, however, satisfied that there was a trend of increasing seriousness in GQHJ’s criminal offending. While the Tribunal accepts that the Court’s sentences for the above relevant offences were not close to the maximum available for each offence, the Court did impose sentences of incarceration for the Robbery Offence and then later for the Affray Offence and Assault Officer Offence. The Tribunal also accepts that GQHJ did not graduate to committing extremely serious crimes during his period in the community, such as aggravated crimes with the use of weapons or those involving sexual offences, crimes against women or children or acts of family violence. However, GQHJ’s offending moved from committing robbery in company, involving intimidation but no physical violence (being the Robbery Offence which the Tribunal has found to be ‘serious’ under Direction 110) to the Affray Offence (which the Tribunal has found to be ‘very serious’), where GQHJ was at least present during an unprovoked violent attack and found guilty of a crime involving, at a minimum, a threat of unlawful violence, and he then proceeded to commit assault against an official in the performance of their duties (the Assault Officer Offence, which the Tribunal has found to be ‘very serious’ under Direction 110). This final offence was a violent crime, as it was an unlawful physical assault on a person. The Tribunal considers that the trend of GQHJ’s offending exhibited an increasing seriousness, regardless of the specific criminal penalties imposed for their commission and the various elements that make up that particular crime. Here, the offending undoubtedly increased in its seriousness from robbery, to affray, where a person was injured and hospitalised, and then to assault against a police officer in the course of their duty, being an inherently violent crime.

166. Accordingly, for all the above reasons, the Tribunal finds that these matters in paragraph 8.1.1(1)(e) of Direction 110 weigh heavily against revocation of the Cancellation Decision.

80    The Tribunal appears to have found a trend of increasing seriousness in the applicant’s criminal offending from essentially three offences: the Robbery offence in December 2019, and the Affray offence and Assault offence in November 2021. The Tribunal’s finding at [165] as to trend did not make particular reference to the drug possession offence or the refusal to comply with a direction offence.

81    The applicant says the Tribunal’s finding that there was a trend of increasing seriousness in the applicant’s criminal offending was unreasonable or illogical. The applicant says that there are only two data points in the “trend”: the first being the Robbery offence, and the second being the Affray offence and Assault offence together, given the events occurred on the same date and within about half an hour of each other according to the police fact sheets before the Tribunal, making them effectively one set of circumstances. The applicant says that two incidents are insufficient for a trend to be established, and that the same can be said of three incidents where the second and third incidents occurred so close together. The applicant also says it was unreasonable to find a trend of increasing seriousness in circumstances where the applicant had received a sentence of two years and three months for the earlier Robbery offence while a lower sentence of fifteen months for the aggregate sentence of the Affray offence and Assault offence.

82    While I accept that three data points, where the last two data points were in very close proximity, might be seen as a weaker trend compared to a trend with more data points, I am not satisfied that it is unreasonable or illogical to describe the applicant’s offending as involving a trend.

83    It was also open to the Tribunal to find an increasing trend of seriousness in the sense that there had been more serious offending over a period of time, in circumstances where the Tribunal had found that the Robbery offence involved intimidation but no violence, the Affray offence involved the applicant being at least present during an unprovoked violent attack, and being found guilty of the crime involving at minimum a threat of unlawful violence, and finally the Assault offence against a police officer which the Tribunal had found was violent. It was open for the Tribunal to find an increasing trend of seriousness in the offending viewed through this prism of escalation in violence across those three offences, notwithstanding that viewing the offences through another prism, such as duration of sentences, may not reveal an increasing trend. It was not illogical or legally unreasonable for the Tribunal to find a trend on that basis, even though reasonable minds might differ as to that evaluation.

Conclusion

84    For the above reasons, I am satisfied that the Tribunal committed a jurisdictional error of the kind described in BNY23, and it therefore misapplied para 8.1.1(1) of Direction 110 and constructively failed to exercise its jurisdiction. Ground 3 of the amended application is upheld on this basis. I am otherwise not satisfied that the separate errors alleged by the applicant under this ground have been established.

Consideration of the best interests of minor children

Direction 110 and the Tribunal’s reasons

85    This ground was directed at primary consideration 4, the best interests of minor children in Australia. Paragraph 8.4 of Direction 110 provides:

8.4. Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

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

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

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

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

d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

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

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

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

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

86    The relevant passages of the Tribunal’s decision dealing with primary consideration 4 are found at [210]-[217]. The Tribunal explained that the applicant has no children of his own in Australia or elsewhere. However, it explained that the applicant has four minor cousins who were aged between 5 and 15 years at the time of the Tribunal hearing (though earlier stating that the applicant’s evidence was that the youngest of them was aged 4). The Tribunal found on the available evidence that the interests of these children did not differ between them, and observed that there was no submission made to it that those interests did differ. It had earlier stated that there “was limited evidence about GQHJ’s cousins”. The Tribunal therefore considered their interests together.

87    The Tribunal explained that the applicant used to live with his cousins and that he sometimes babysat them when he was living in the community. The Tribunal’s reasons excerpt the applicant’s statutory declaration where he said that he wanted to “be there for [his cousins], look after them, guide them and make sure they don’t follow the same path I did. I want to make sure they stay out of trouble, stay in school and do not break the law”. The Tribunal also excerpted a statutory declaration provided by the applicant’s aunt which said that her children, four of whom are the relevant minor children, will support the applicant and “they are like siblings” to the applicant.

88    The Tribunal accepted that if the applicant was removed from Australia, he would not have the opportunity to continue the relationship with his cousins in person, that the wider family would be separated, and that this may have a traumatising impact upon them noting their family history. It later said his removal “would have” a traumatising impact on the minor cousins during their formative years. However, the Tribunal noted that the applicant does not play a parental role to the children and that his role would not be parental in the future, noting that the cousins have at least one biological parent.

89    The Tribunal accepted that he was close to the children when he lived in the Australian community before he was arrested in 2020. However, the Tribunal noted that the applicant was either in gaol or immigration detention for approximately two and a half years, from November 2022, and that he had also previously served 15 months in custody from early 2020 to April 2021. During those times, the applicant had been in contact with his cousins electronically, and the Tribunal stated there was no evidence that this form of contact could not continue if he were not released into the Australian community.

90    The Tribunal accepted that, alongside the applicant’s aunt, her husband, their three adult children, and his two other cousins, the four minor children are his only family in Australia, and most likely the world, and the people to whom he is closest. However, the Tribunal found that due to its finding about the low/moderate, but “real and ongoing”, risk of the applicant committing future violent crimes, any such future conduct by him has the potential to have a negative impact on those children, and this weighs against the applicant.

91    At an earlier point of the reasons when assessing primary consideration 3, ‘Strength, nature and duration of ties to Australia’, the Tribunal had also noted at [201] generally that it “finds that an adverse decision will impact negatively on these seven children of Ms B [including the four minor cousins] and this weighs heavily in favour of revocation of the Cancellation Decision”. At [217], having weighed the available evidence, the Tribunal was satisfied that the best interests of the applicant’s minor cousins weighs marginally in favour of revocation of the cancellation decision.

92    The applicant says the Tribunal’s conclusion is illogical because: first, it did not consider the differing interests of the children; and second, because of the conclusion at [217] that the consideration weighed only “marginally” in favour of revocation. I deal with each in turn.

Differing interests of the minor children

93    The applicant directs attention to the conclusions at [211] of the Tribunal’s reasons where the interests of the four minor children were not considered differently between them and were dealt with together. As excerpted above, para 8.4(3) of Direction 110 provides that if there are two or more relevant (minor) children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

94    The applicant accepts there was no submission made to the Tribunal that the children’s interests differed. The applicant does not submit that there was evidence before the Tribunal that specifically articulated any different interests. Instead, the applicant submits that the fact of the differing ages itself raised the possibility that there would be some qualitative difference between the interests of the children such that the Tribunal should have considered their interests separately or at least inquired as to whether there were relevant differences between their interests. The applicant says for example that the youngest cousin, aged five years, would have been affected by the revocation differently to the 15-year-old. The applicant also highlights in written submissions that two of the minor children were born in Australia, and did not travel to Australia with the applicant like the other cousins, which while observable from their ages alone and the timing of the family’s arrival in Australia in 2012, did not appear to be specifically emphasised before the Tribunal. The applicant says that there is a realistic possibility that had the Tribunal made further inquiries, those inquiries would have revealed significant or relevant differences between the children such that the eventual weighing of the primary consideration would have been resolved differently. The applicant submits that the Tribunal’s failure to do so is a jurisdictional error.

95    The applicant says that the fact that the argument about differing interests of the children was not positively put forward to the Tribunal should not preclude the Court from concluding that the Tribunal should have contemplated their differing interests and that the Tribunal should have inquired as to how those interests might differ. He cites two cases in support of this submission: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 and Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47.

96    In Uelese, the appellant at the time of the Tribunal hearing was the father of five minor children, however he had not made the interests or even the existence of his two youngest children (born to a different mother) a positive aspect of his case before the Tribunal. The existence of those two youngest children only came to light from the cross-examination of a witness called on behalf of the appellant before the Tribunal, being the mother of his other three children: at [2], [21]-[22]. The Tribunal considered it was bound by s 500(6H) of the Act not to have regard to the evidence about the two additional children which had been presented orally without prior written notice to the Minister, and so it proceeded to determine the review of the decision to cancel the appellant’s visa taking into account only the interests of the appellant’s three minor children that were part of his case to the Tribunal: at [3], [24]-[27]. At [64], French CJ, Kiefel, Bell and Keane JJ found that it was a jurisdictional error for the Tribunal to not consider the interests of the appellant’s two youngest minor children of whose existence it was aware. However, in that case the existence of the two children was known to the Tribunal and the Tribunal did not consider their interests at all. This is in contrast to the present case where the Tribunal did take the interests of the minor cousins into account but considered their interests altogether rather than distinctly.

97    As for Hong, the applicant relies on the following passage at [66] (Bromwich and Wheelahan JJ):

a failure by the parties’ legal practitioners to raise issues of fact or law that are central to the Tribunal’s exercise of jurisdiction may not preclude the consideration on appeal or on judicial review of an error, at least on a central issue, that was induced by the parties’ submissions.

98    This passage needs to be understood in context. In the preceding paragraph, Bromwich and Wheelahan JJ observe that the nature of a Tribunal review process is inquisitorial rather than adversarial (at [65]). However, at [69], their Honours find that there was no error in the primary judge’s reliance on AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18] (Collier, McKerracher and Banks-Smith JJ), because:

At the heart of the guidance in AYY17 is the idea that the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials. That is equally so in relation [to] matters advanced in proceedings before the Tribunal involving reviews of decisions under s 501CA(4) of the Act, where the section contemplates that the former visa-holder may advance matters by way of representation directed to why the power of revocation should be exercised.

(Emphasis added.)

99    In other words, despite the inquisitorial task of the Tribunal, what is required is that the applicant raise the matter in argument or the matter clearly emerges from the materials in the sense described in AYY17 at [18] and the cases there cited.

100    In addition, in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [25] the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.

(Footnotes removed.)

101    Sub-paragraph 8.4(3) of Direction 110 requires that where there are two or more relevant (minor) children, the best interests of each child should be given individual consideration to the extent that their interests may differ. I am not satisfied, in the circumstances of this case, that the different ages of the cousins itself leads to the requirement to consider their interests differently. That fact alone does not lead to an “obvious enquiry” about the cousins’ differing interests. I accept, as the Minister submits, that the Tribunal was entitled to expect somebody to articulate how their interests might have differed or at least provide sufficient materials from which a claim about relevant differences might clearly emerge. Without more, I am not satisfied the differing interests clearly emerges from the material. I find there is no jurisdictional error on this basis.

Potential negative impact on the minor children

102    The applicant says it was illogical for the Tribunal to reach the conclusion that the best interests of the applicant’s minor cousins only weighs marginally in favour of revocation. He says that is so where the Tribunal had found that there “would” be a traumatising impact on the four minor children during their formative years if the applicant was removed from Australia, with the only countervailing consideration being that there was only a potential negative impact on the children if the applicant offended in future, where the applicant had only a low to moderate risk of reoffending. That is, the applicant says the Tribunal appeared to weigh this “potential” eventuality powerfully against the traumatising impact it said “would” occur, to reduce the overall weight given in favour of revocation.

103    The applicant further complains that the finding as to potential negative impact on the children if the applicant offended again in future appears to have been based on a submission by the Minister rather than any evidence, citing XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; 305 FCR 349 at [63] (Markovic, Cheeseman and Horan JJ).

104    The applicant also says that the finding about “potential negative impact” is not clearly articulated by the Tribunal and it is unclear whether the Tribunal meant the applicant would have a negative influence on his cousins because of his “history of antisocial behaviour including serious violent crimes”, or if the Tribunal meant for example that if the applicant re-offended this would have a negative impact on the children because he would no longer be part of the family if he was taken into criminal custody, or that his younger cousins would seek to emulate his behaviour—matters about which the applicant suggests he was not given a fair opportunity to rebut if that was indeed the finding made.

105    I repeat the consideration (at [60] to [62] above) where I address the principles and threshold for illogicality. I do not accept it was illogical for the Tribunal to reason that the best interests of the minor children weigh only marginally in favour of revocation in the manner it did.

106    The Tribunal’s reasons follow a clear structure in addressing each consideration under para 8.4 of Direction 110. Paragraph [210] outlines sub-paras 8.4(1) and 8.4(2). As discussed above, [211] considers sub-para 8.4(3) and the Tribunal proceeds to consider the best interests of the minor children together rather than separately. Paragraphs [212]-[217] of the Tribunal’s reasons then consider the application of relevant factors in para 8.4(4) of Direction 110, including the evidence of the closeness of the applicant and the four cousins and that he had lived with them and sometimes babysat them, the non-parental relationship he has with the cousins and that he will not have a parental role with them in future because they have at least one biological parent and considering GQHJ’s young age, the periods of absence he has had from the children during immigration detention and while in gaol, his previous electronic communications with the cousins during that time, and the lack of evidence that this could not continue, while acknowledging that he would lose the opportunity to continue his relationship with the cousins in person if he were removed in future. The Tribunal’s reasoning as to the traumatising impact of the applicant’s removal on the minor cousins during their formative years in the context of their family’s refugee experience in this country at [215] evinces a consideration of sub-para 8.4(4)(d), and the Tribunal’s finding as to potential negative impact at [216] evinces a consideration of sub-para 8.4(4)(c).

107    The Tribunal’s findings as to the “traumatising impact” on the minor cousins and “potential negative impact” need to be understood in the context of the Tribunal weighing up the relevant considerations under sub-para 8.4(4). Read as a whole, the Tribunal was not engaging in an isolated weighing exercise of these two things against each other and then for that reason alone arriving at the conclusion that the best interests weighed “marginally in favour” of revocation. Rather, these considerations were part of the mix of relevant factors the Tribunal was required to consider under sub-para 8.4(4). While the applicant contends that these were the two weightiest considerations, it was open to the Tribunal to allocate the weight it considered appropriate to each of the relevant considerations. Understood in the context of consideration of all these factors, I am not satisfied that the Tribunal’s conclusion was illogical or unreasonable.

108    As for the question of evidence, XRZG at [63] provides that a finding of fact made without a skerrick of evidence will amount to an error of law, and will amount to a jurisdictional error if the relevant finding is at least a “critical step” on which the ultimate decision was based. I accept the Minister’s submission that here there was at least some evidence in the form of a statutory declaration from the applicant’s aunt about the negative impact of the applicant’s past offending. This evidence is as follows:

7. The police would come around to our house a lot during that time. They would knock very aggressively and loudly, at all hours. I told them it was scaring us, but they still did it. They were always looking for [GQHJ].

8. It has been explained to me what [GQHJ] has been found guilty of. Even after hearing all of this, I believe that [GQHJ] is a good person. He is decent and kind, and was always good to his family. I have known him all his life, and I do not think that is truly who he is. He had a very hard life, and he fell in with a bad crowd here when he was young and didn't know better.

109    The applicant’s aunt’s statutory declaration is referred to as having been considered at [81] and [213] of the Tribunal’s reasons, although the above passages are not cited or extracted. Earlier in the Tribunal’s reasons at [83], the Tribunal excerpts the aunt’s oral evidence given to the Tribunal:

Ms B told the Tribunal she was aware of GQHJ’s criminal offending and had been informed about it by the police. Ms B previously had contact with police regarding GQHJ, including when they were looking for him. Ms B told the Tribunal that it was “not good” when the police attended her house, because sometimes they knocked hard on the door, including in the middle of the night, and the family were “scared”. She did not witness the police interacting with GQHJ, but discussed these interactions with GQHJ and told him what he was doing was “no good” and causing the police to attend their residence. Ms B told the Tribunal that they had “numerous” conversations, including with GQHJ’s uncle, about GQHJ’s behaviour.

110    While the Tribunal might have been more precise in its reasons at [210]-[217] in identifying the evidence relied upon to support the finding of potential negative impact, I am not satisfied that there was “not a skerrick” of evidence to support this finding. I consider there is no jurisdictional error in the XRZG sense.

111    Finally, I do not consider the failure to articulate the negative impact with greater precision constitutes a jurisdictional error. The phrase “negative impact” comes from sub-para 8.4(4)(c) of Direction 110 and is not defined in the direction, though it refers to the negative impact from the non-citizen’s “prior conduct, and any likely future conduct”. While a Tribunal might have decided to articulate the negative impact with greater precision, there is no indication from the text of Direction 110 that it was required to do so. I do not consider it was illogical to articulate the negative impact at the level the Tribunal did. That is particularly so given the Tribunal was considering “likely future conduct” as required by Direction 110 and that future conduct could readily have caused a variety of negative impacts on the applicant’s cousins.

Disposition

112    For those reasons, the amended application succeeds only in respect of the error directed at the Tribunal’s consideration of paras 8.1.1(1)(a) and (b) of Direction 110. In those circumstances there will be orders that the Tribunal decision is quashed and that it consider the applicant’s application for review of the decision of the delegate of the Minister according to law. The Minister is to pay the costs of the applicant, to be agreed or taxed.

Associate:

Dated:    3 September 2026