Federal Court of Australia

Daniel v Minister for Immigration and Citizenship [2026] FCA 1480

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

the application

1    The applicant, Mr Daniel, applies for judicial review of the second respondent’s (the Tribunal) decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. It is not in dispute that Mr Daniel fails the character test by reason of his “substantial criminal record”, such that cancellation of his visa was mandatory pursuant to s 501(3A)(a) of the Migration Act 1958 (Cth). He had been convicted of offences including arson and stealing in 2004, further offences in 2006, 2008, and 2022 and, on 12 June 2024, robbery in armed company, for which he received a sentence of imprisonment of five years.

2    Mr Daniel was born in the United Kingdom and is a citizen of New Zealand, having migrated there with his family in 1992 at the age of seven. They subsequently migrated to Australia in February 2001, by which time he was 15 years old. He has lived in Australia since that time, a period of 25 years.

3    Before this Court, Mr Daniel contends that the Tribunal erred in law by failing to apply the terms of Ministerial Direction 110 in that it misconstrued, and therefore did not apply, the general principle (5.2(6)) that “Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age” (the “tolerance principle”).

4    Mr Daniel also contends that the Tribunal’s reasoning was illogical in three respects: first, the Tribunal was wrong to say that it had no expert evidence regarding the likelihood of reoffending; secondly, the Tribunal’s treatment of the evidence of rehabilitation was irrational in that such evidence was effectively given no weight and an unreasonably high bar was imposed to its reception; and thirdly, there is a disconnect between the evidence in support of certain primary considerations and the weight ultimately given to them.

5    For the reasons that follow, the Tribunal neither misconstrued the tolerance principle nor reasoned irrationally. Consequently, Mr Daniel’s application for judicial review must be dismissed.

The tolerance principle

6    It is uncontroversial that a failure to properly construe and apply the Direction constitutes a breach of s 499 of the Migration Act and is, therefore, an error of law: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321 at [30]–[31]. It is also uncontroversial that, to establish jurisdictional error, an applicant must establish that the failure to properly construe and apply the Direction was material, in the sense that there is a realistic possibility that a different decision could have been made if the error had not occurred: LPDT at [7], [14]–[15].

7    The principles enumerated in paragraph 5.2 of the Direction, which “provide the framework within which decision-makers should approach their task of deciding whether … to revoke a mandatory cancellation under section 501CA …” are, relevantly:

…

(2) The safety of the Australian Community is the highest priority of the Australian Government.

…

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

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

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

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

…

(Emphasis added.)

8    The primary considerations referred to in principle (7) are:

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

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

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

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

(5)    expectations of the Australian community.

9    In respect of the first primary consideration, the Tribunal found that protection of the Australian community weighed heavily against revocation, having regard to principle (2), the nature and seriousness of Mr Daniel’s conduct, and the risk to the Australian community should he commit further offences or engage in other serious conduct: Reasons [77]. I will return to the alleged error said to impugn this finding.

10    There was no suggestion that the second primary consideration was engaged.

11    As to the third primary consideration, the Tribunal found that Mr Daniel arrived in Australia as a 15-year-old in 2001 and has lived here since, meaning he has spent approximately 60% of his life in Australia: Reasons [83]. It noted, however, that his adult criminal offending commenced three years after his arrival: Reasons [83]. The Tribunal recorded Mr Daniel’s immediate family members who reside in Australia (Reasons [86]), and his intention to care for his father who has early onset dementia (Reasons [88]). It also observed that Mr Daniel has no extended family in Australia and there was no evidence of significant financial dependency on him by any of the immediate family: Reasons [95]–[96]. Nonetheless, the Tribunal found that the strength, nature and duration of his ties to Australia weighed heavily in favour of revocation of the cancellation decision: Reasons [97].

12    As to the fourth primary consideration, two minor children’s interests were relevant, namely those of a biological daughter and of a step-son. The evidence of Mr Daniel’s involvement with the two children was relatively slim. There was no evidence of the children’s views (Reasons [107]) nor any evidence of financial support for either. Nevertheless, the Tribunal found that a non-revocation decision would deprive the children of the possibility of contact with Mr Daniel and have a negative emotional impact on them: Reasons [112]. Accordingly, the Tribunal found that the interests of minor children in Australia weighed moderately in favour of revocation of the cancellation decision: Reasons [113].

13    As to the fifth primary consideration, the Tribunal found that Mr Daniel’s offending was sufficiently serious such that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of his visa: Reasons [119]. It was in this context that the Tribunal addressed the tolerance principle, by considering whether there were any factors which could modify the Australian community’s expectations: Reasons [120].

14    Having already made separate findings as to the age at which Mr Daniel arrived in Australia and the length of time he had spent here, the Tribunal observed that his “participation in, and contribution to, the Australian community is … not ‘short’. Thus, the Australian community’s tolerance is raised by this part of the principles in 5.2(5) of the Direction”: Reasons [121]. It is the next paragraph of the Reasons which is said to disclose error:

122.     In relation to sub-paragraph (b) of the above paragraph of [120], the Applicant arrived in Australia as a 15-year-old in February 2001. Although he has spent most more [sic] than half is [sic] life in Australia (60%), he did not come here at a very young age. This means the Australian community’s level of tolerance of criminal or other serious conduct by this Applicant is not raised.

15    The tolerance principle, albeit in respect of an earlier Ministerial Direction in substantially the same terms, was considered in Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 94; 412 ALR 502 at [65]. There, the Full Court approved the following reasoning of the primary judge in CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [53] and [60]:

[53]    In any event, the use of the words ‘may afford a higher level of tolerance’ in the second part of the tolerance principle [in para 5.2(6)], meant that it was a matter for the Tribunal to form a judgment as to whether and if so in what way, in all the circumstances, the tolerance principle (as part of the framework to inform the manner in which the Tribunal would take into account the primary and other considerations) might guide the process of taking the specified considerations into account.

…

[60]    Further, the tolerance principle was not itself a matter to which the Tribunal was required to have regard if relevant. Rather, as has been explained, it was a principle that was to inform the task of taking into account those matters which the Direction required the Tribunal to take into account in deciding whether to exercise the discretion conferred by s 501(1). It was a principle which itself was expressed in terms that required an evaluation as to whether the higher level of tolerance ‘may’ in all the circumstances be afforded. In those circumstances, there was no evident flaw in the Tribunal considering the principle in the manner in which it did and reaching a conclusion that for the purposes of primary consideration (4), the tolerance principle did not fundamentally modify the deeming aspect of the earlier principle to the effect that there was an expectation that entry should be refused if a visa applicant had engaged in conduct that raised serious character concerns.

16    To the extent that Mr Daniel submits that the Tribunal erred in treating the factors mentioned in principle (6) as cumulative, the submission is misconceived. First, principle (6) does not deem the Australian community to have a higher tolerance of criminal conduct on the part of those who have lived in Australia for most of their lives, nor indeed those who have lived in Australia from a very young age. As Kumar makes plain, the Tribunal is not required to have regard to it at all; it rises no higher than a consideration within the decision-making framework to which a Tribunal may have regard. So much is reinforced by the structure of the Direction: that which must be considered in making a decision is contained in Part 2, whereas paragraph 5.2 appears in Part 1, which contains matters of a more general nature.

17    Secondly, it is plain that the Tribunal understood that it was not precluded from considering whether a higher degree of tolerance might be afforded to Mr Daniel unless he had lived in the community for most of his life and from a very young age. Rather, it made separate findings in respect of each element: first, it plainly did not consider that 15 years was a “very young age”, and secondly, it made a separate finding as to the proportion of Mr Daniel’s life spent in Australia, both at [83] and [122]. Granted, the language of [122] is not without difficulty and contains errors. But it is tolerably clear that the Tribunal concluded that the Australian community’s tolerance of Mr Daniel’s criminal conduct is not higher in circumstances where he did not come here at a very young age, albeit he has lived 60% of his life in Australia. To read the reasons otherwise would be to read them with an eye too finely attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, 272.

18    Therefore, to read [122] in the manner for which Mr Daniel contends would be to ignore the separate findings of the Tribunal and to elevate a discretionary principle to a mandatory consideration, contrary to Kumar.

19    In any event, even if the Tribunal erred at [122], the error was not material. The Tribunal concluded that the totality of Mr Daniel’s unlawful conduct in Australia was sufficiently serious “as to displace any strong countervailing considerations militating in favour of a positive visa outcome”: Reasons [123]. It reached this conclusion having found that:

(1)    the offences for which Mr Daniel had been convicted on 12 June 2024 amounted to “very serious” conduct within para 8.1.1(a) of the Direction, as reflected in the five-year sentence: Reasons [34], [44]–[45], [54];

(2)    Mr Daniel had approximately 23 convictions between 2004 and 2008, and an extensive traffic history, which were categorised as “serious” conduct within para 8.1.1.(b): Reasons [37]–[43], [55]; and

(3)    Mr Daniel had re-offended since being formally warned about the potential consequences of further offending on his migration status, such that the totality of his unlawful conduct in Australia had been of a “very serious” nature: Reasons [49]–[52], [56].

20    Mr Daniel has not established, in the face of this reasoning, that any error in the Tribunal’s construction of paragraph 5.2(6) of the Direction was such that there is a realistic possibility that a different decision could have been made had the alleged error not occurred: LPDT at [7], [14].

21    For those reasons, ground one cannot succeed.

Irrational or illogical reasoning

22    By the second ground of review, Mr Daniel contends that the Tribunal reasoned irrationally on three bases when considering his risk of re-offending.

23    First, he submits that the Tribunal’s finding (Reasons [73]) that it did not “have the benefit of any probative expert evidence as to the Applicant’s risk of reoffending” is “entirely unsound and illogical” when it had before it reports of two psychologists, one by Mr Greg Hutcheon dated 13 October 2025 (Hutcheon Report) and the other by Mr Oliver Brecht dated 9 June 2024 (Brecht Report).

24    Relevant passages from the Hutcheon Report were set out by the Tribunal at [66]. Those passages identified the circumstances which led to Mr Daniel’s most recent offending. These might be summarised broadly as grief, resulting in depression without sufficient social support, leading to social withdrawal and isolation. These led to increased substance use and escalating criminality in the context of untreated depression. The Hutcheon Report stated that “[i]t is likely that [Mr Daniel] will require to continue to engage in long-term psychotherapy in navigating interpersonal relationships and tendencies to self-blame and isolate”. As the Tribunal observed (Reasons [67]), the Hutcheon Report is silent as to Mr Daniel’s risk of recidivism. I do not accept the submission that Mr Hutcheon’s identification of certain “triggers” for Mr Daniel’s offending and the support necessary to minimise them implies that if such support is available, then his risk of reoffending is low. There is nothing illogical in the Tribunal’s assessment of the Hutcheon Report being of “limited use” for the purpose of assessing the risk of recidivism.

25    The Tribunal referred to the Brecht Report at [69]. It had been provided for the purposes of sentencing for Mr Daniel’s conviction of robbery in armed company. The Brecht Report identified the reasons for his offending, observing that “the risk of reoffending was associated with mismanagement of addiction and pro-criminal attitudes and associates”. It continued:

Thus, he would be required to break off all communication with pro-criminal associates, to improve the likelihood of rehabilitation. He expressed shame and guilt about the offence and appeared to have generated potential avenues for rehabilitation such as drug addition treatment and grief counselling. His positive education and employment history also suggest positive prospects for paid employment.

(Emphasis added.)

26    Nothing in the foregoing observations can be construed as a probative opinion as to Mr Daniel’s risk of recidivism. Like the Hutcheon Report, the mere identification by Mr Brecht of the necessary steps for Mr Daniel’s rehabilitation says nothing about the likelihood of those steps being undertaken. Passing comments about “potential avenues for rehabilitation” are also insufficient.

27    Therefore, neither the Hutcheon Report nor the Brecht Report can be read as providing any expert opinion, let alone probative expert opinion, as to Mr Daniel’s risk of recidivism.

28    For completeness, the Tribunal also had before it a letter from a clinical psychologist, dated 27 February 2019, which proffered the opinion that Mr Daniel had a low risk of reoffending. The Tribunal found that opinion to be of no assistance since it had been proven wrong by Mr Daniel’s very serious reoffending in 2024: Reasons [68].

29    Accordingly, there was nothing illogical or irrational in the Tribunal’s conclusion that it did not have the benefit of any probative expert evidence as to Mr Daniel’s risk of reoffending.

30    Secondly, Mr Daniel submits that the Tribunal reasoned irrationally at [74], where, after accepting that he “seemed to be genuine about his resolve to not resort to previous substance abuse as well as managing his grief disorder”, the Tribunal said “[b]ut that resolve has not been tested in the community”. Mr Daniel submits that it was irrational for the Tribunal to effectively reduce his considerable efforts in completing numerous rehabilitative courses whilst in detention to nothing and treat him in the same way as a person who had not bothered to do so. He says further that irrationality attends the implicit requirement that his rehabilitative efforts be tested in the community, being a requirement he was incapable of meeting.

31    That submission, however, reads in to the Tribunal’s reasons a “requirement” that does not exist. The Tribunal did not say that Mr Daniel’s resolve had to be tested in the community. Rather, it made the perfectly logical and reasonable observation that, whilst it accepted Mr Daniel’s stated resolve, it might falter when he is exposed again to triggering factors. Therefore, there is nothing irrational in the Tribunal’s reasons at [74].

32    Thirdly, Mr Daniel contends that the Tribunal reasoned irrationally in ascribing only moderate weight to the fourth primary consideration, despite accepting that a non-revocation decision would have a “significant negative emotional impact” on his biological daughter and a “negative emotional impact” on his step-son.

33    This complaint rises no higher than one about weight. That is a matter for the Tribunal, not this Court on an application for judicial review: TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 at [25].

Disposition

34    For these reasons, the application for judicial review must be dismissed with costs.

35    The Court would nevertheless like to record its thanks to Counsel for Mr Daniel, who acted pro bono, and put the case for Mr Daniel with diligence and skill.

Associate:

Dated:    8 October 2026