Federal Court of Australia

Gautama v Minister for Immigration and Citizenship [2026] FCA 1519

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

O’SULLIVAN J

1    The applicant is a citizen of Indonesia who arrived in Australia in 2000.

2    After being convicted on 8 October 2019 on the charge of attempting to possess prohibited drugs with intent to sell or supply, the applicant was sentenced to a term of imprisonment of five years and six months.

3    On 25 May 2020, a delegate of the first respondent, the Minister for Immigration and Citizenship cancelled the applicant’s Five-Year Resident Return (Class BB) (subclass 155) visa under s 501(3A) of the Migration Act 1958 (Cth).

4    The applicant made representations to the Minister as to why the delegate’s decision to cancel his visa should be revoked and provided additional evidence in support of that request. On 22 April 2025, a delegate of the Minister found that the power under s 501CA(4) to revoke the original decision under s 501(3A) had not been enlivened.

5    The applicant subsequently applied to the second respondent, the Administrative Review Tribunal, for a review of that decision, and on 14 July 2025 the Tribunal affirmed the delegate’s decision not to revoke the cancellation.

6    In arriving at its decision, the Tribunal considered Ministerial Direction 110.

7    By originating application filed on 12 August 2025, the applicant seeks judicial review of the Tribunal’s decision.

8    It is for the following reasons that the application is dismissed.

Background

9    This matter has had an unfortunate procedural history. Upon the request of the applicant, the Court arranged pro-bono Counsel to represent him on two separate occasions, only for the applicant to terminate their instructions on both occasions.

10    An amended application for judicial review, together with written submissions, was prepared by the second pro-bono Counsel before the applicant terminated their instructions.

11    When the matter was called on initially for hearing on 9 April 2026, the applicant, then unrepresented, sought an adjournment of the hearing and leave to file a further amended application. Leave was granted and the matter was listed for hearing on 21 May 2026.

12    The applicant now applies to the Court by his further amended application dated 23 April 2026 for judicial review of the Tribunal’s decision, relying on:

(1)    the affidavit of Ika Gautama dated 23 April 2026;

(2)    the corrected affidavit of Ika Gautama dated 29 April 2026;

(3)    the supplementary affidavit of Ika Gautama dated 17 May 2026; and

(4)    his written submissions dated 30 April 2026 in support of the further amended application.

13    The further amended application is difficult to follow and does not clearly articulate grounds of review. As best as can be understood, the applicant advances the following five grounds of review:

(1)    That the Tribunal erred in finding that s 201 of the Migration Act (which the applicant describes as the “10 year rule”) had no application to the applicant’s matter and failed to perform its statutory duty;

(2)    That the Tribunal failed to take into account a mandatory relevant consideration under Direction 110 by failing to take into account the legal consequences of the decision under review and in particular the applicant’s contentions regarding s 201. As part of this ground, the applicant contends the Tribunal failed to properly consider all of his contentions, including his contention relating to s 201 and his ties to, and time spent in, Australia;

(3)    That the Tribunal engaged in a constructive failure to exercise its jurisdiction. The applicant contends that the Tribunal was obliged to consider all of the applicant’s representations as a whole. The applicant contends that the Tribunal misconstrued its task under [9(1)] of Direction 110 in the sense that it considered the list of other considerations in Direction 110 as a closed checklist and failed to exercise its broad discretion under s 501CA(4)(b)(ii). Further, by dismissing s 201 as not applicable, the Tribunal failed to properly engage with a significant part of the applicant’s claim;

(4)    That in determining s 201 did not apply, the Tribunal then failed to consider the applicant’s contentions about s 201 of the Act as part of “another reason” to revoke the cancellation under s 501CA(4)(b)(ii); and

(5)    The Tribunal restricted itself by not treating the “10 year rule” as another reason to revoke the cancellation.

Ground 1 – parties’ submissions and consideration

14    Direction 110 at [9] refers to “Other considerations”.

15    The applicant contends the Tribunal failed to perform its statutory duty by failing to consider a mandatory relevant consideration, being the legal consequences of the decision, contrary to Direction 110 at [9(1)(a)] and [9.1].

16    Before the Tribunal, the applicant made no specific submissions on this consideration. The Tribunal found that this consideration carried moderate weight in favour of setting aside the delegate’s decision.

17    The Tribunal identified that Direction 110 did not limit the “Other considerations” to those listed at [9(1)].

18    As part of its consideration of the “Other considerations” the Tribunal addressed the applicant’s contention, raised within his Statement of Facts, Issues and Contentions which was before the Tribunal, that s 201 protected him from deportation because he had been a lawful resident for over 10 years and was therefore not “liable to removal”.

19    The Tribunal addressed that contention at [118]-[120] of its reasons (R) under the heading “ADDITIONAL CONSIDERATIONS”, and concluded that s 201 had no application as it does not apply to visa cancellations. On that basis, the Tribunal found that the additional consideration concerning s 201 carried no weight.

20    The applicant repeats that contention on this application. That is, the “10-year rule” in s 201 operates as a legal barrier to deportation and that by dismissing s 201 as inapplicable the Tribunal failed to engage with the legal consequences of the decision: Direction 110 at [9(1)(a)].

21    Section 201 provides:

Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes

Where:

(a)    a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;

(b)    when the offence was committed the person was a non-citizen who:

(i)    had been in Australia as a permanent resident:

(A)    for a period of less than 10 years; or

(B)    for periods that, when added together, total less than 10 years; or

(ii)    was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder:

(A)    for a period of less than 10 years as an exempt non - citizen or a special category visa holder; or

(B)    for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and

(c)    the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year;

section 200 applies to the person.

22    In turn, s 200 provides that:

The Minister may order the deportation of a non-citizen to whom this Division applies.

23    The Minister submits that s 201 forms part of the deportation framework of the Migration Act, under which the Minister exercises a discretion in deciding whether a person should be deported, and that s 201 does not apply to the cancellation of visas pursuant to s 501(3A) which deals with mandatory visa cancellations on character grounds.

24    The Minister submits that because the applicant’s visa had been mandatorily cancelled under s 501(3A), the Tribunal was correct to find: at R [120] that s 201 did not apply to the case before it: Horne v Minister for Immigration and Border Protection [2015] FCA 550 (Jagot J as a member of this Court) at [20]-[22].

25    I accept the Minister’s submissions. The Tribunal was correct in its conclusion that s 201 had no application to the matter before it.

26    Ground 1 fails.

Grounds 2 and 5 – parties’ submissions and consideration

27    Ground 2 also raises s 201 of the Migration Act. The applicant contends “[t]he Tribunal failed to engage with the substantive legal argument concerning the statutory interplay between s 501(3A) (Mandatory Cancellation) and s 201 (Deportation Protection) of the [Migration Act].

28    That is not so. The Tribunal considered the application of s 201: at R [118]-[120].

29    Ground 5 is anchored in the contention that, in finding that s 201 did not apply, the Tribunal failed to properly consider it as part of the “Other considerations” under [9] of Direction 110.

30    Since the Tribunal was correct to find that s 201 did not apply, it was open to the Tribunal to give no weight to that matter as one of the “other considerations” under [9] of Direction 110: R [120].

31    As to the applicant’s apparent contention that the Tribunal failed to consider the applicant’s ties to Australia and his time spent in Australia, that is demonstrably wrong.

32    Direction 110 has as its third primary consideration, “The strength, nature and duration of ties to Australia”.

33    The Tribunal considered the third primary consideration at R [72]-[80], finding that the applicant:

(1)    arrived in Australia in 2000 and stayed for a year before returning to Indonesia. He then came back to Australia in 2003 and has lived here continuously since: R [78];

(2)    spent approximately three of his formative years in Australia: R [79(a)];

(3)    did not begin offending soon after arriving in Australia: R [79(b)];

(4)    had made some positive contributions as a volunteer in the Australian community: R [79(c)];

(5)    has made some positive contributions in paid employment: R [79(d)]; and

(6)    has immediate family, consisting of his mother and younger brother, and he has a network of friends. The Tribunal noted that the applicant declined to identify those within that network of friends: R [79(e)].

34    The Tribunal found that affirming the delegate’s decision would adversely impact the applicant’s mother and brother, with whom the applicant is close: R [80], and ultimately concluded that the third primary consideration weighed moderately in favour of setting aside the delegate’s decision: R [81].

35    The Minister submits, and I accept, that the Tribunal properly considered and engaged with the applicant’s contentions in relation to both these grounds.

36    Both grounds 2 and 5 fail.

Ground 3 – parties’ submissions and consideration

37    The applicant contends there was a constructive failure to exercise jurisdiction.

38    Properly understood, apart from the repeated reference to s 201, this ground appears to relate to the Tribunal’s failure to consider the applicant’s contentions regarding the hardship he would face as a result of his deportation.

39    The applicant relies on what the applicant describes as the interplay between s 201 and the consideration of whether there was “another reason” within the meaning of s 501CA(4)(b)(ii).

40    Once again, the applicant submits that the Tribunal erred in failing to consider s 201 as a “mandatory relevant consideration” when considering whether there was “another reason” within the meaning of s 501CA(4)(b)(ii).

41    The applicant contends that the Tribunal misconstrued its task by treating the matters in Direction 110 as a closed checklist and not taking into account the “10-year rule” in s 201.

42    The Tribunal considered the applicant’s contentions concerning s 201 and, as I have noted above, the Tribunal did not err in finding that s 201 had no application to the matter before it.

43    The applicant also contends the Tribunal failed to consider the applicant’s contentions regarding the hardship he would face as a result of his deportation. Once again, that is wrong.

44    Between R [103]-[115], the Tribunal considered the extent of any impediments the applicant would suffer if removed - Direction 110 at [9.2]. In particular, the Tribunal made the following observations: at R [114]:

114.    Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that it is likely, if Mr Gautama is removed from Australia, that he would face some emotional and practical hardship. He is likely to face short-term difficulties in establishing social, medical and economic support – difficulties that may be exacerbated by a lack of an extensive support network. He is unlikely to face cultural or language barriers

45    After considering each of the matters identified in Direction 110 at [9.2(1)] (age and health, substantial language or cultural barriers and any social, medical and economic support available to the applicant in Indonesia), the Tribunal found that this consideration weighed in favour of setting aside the decision to revoke the cancellation: R [115].

46    The Tribunal did not fail to consider the hardship the applicant would face if deported. Clearly, it gave careful consideration to the matters in [9.2] of Direction 110 and no error has been shown, such that ground 3 fails.

Ground 4 – parties’ submissions and consideration

47    It is not clear exactly what contention the applicant puts forward in ground 4, other than s 501CA(4)(b)(ii) is intentionally broad and that the Tribunal failed to exercise its broad discretion under the section.

48    Apart from repeating the s 201 point, the applicant appears to contend that his long-term presence in Australia and his integration as a member of the community comes within “another reason” to revoke the cancellation; and/or

49    Both the s 201 contentions and the applicant’s long-term presence in Australia and his integration as a member of the community were matters considered by the Tribunal when considering the third primary consideration under Direction 110.

50    The Tribunal gave careful consideration to the third primary consideration and no error has been shown.

51    Ground 4 fails.

The further issue of whether the Tribunal misunderstood its task under s 501CA(4) and Direction 110 as a discretionary rather than an evaluative exercise

52    Two further issues arise from the applicant’s amended originating application filed on 19 December 2025 (which was superceded by the applicant’s further amended originating application dated 23 April 2026) and previous written submissions filed on 16 March 2026 by the applicant’s second pro bono counsel.

53    The applicant disavowed any reliance on either of those documents.

54    Nonetheless, for completeness and in fairness to the applicant, I deal with them.

55    The first issue arising from the previous written submissions filed 16 March 2026, is that the applicant contends the Tribunal misconceived the nature of the task required of it under s 501CA(4)(b)(ii) by proceeding on the basis that it was exercising a discretion, rather than engaging in an evaluative exercise in coming to a state of satisfaction as to whether there was “another reason” why the original decision of the Minister should be revoked. Those written submissions referred to statements made by the Tribunal: at R [13] and [134] which are reproduced below:

13.     Section 501CA(4) of the Act is a discretionary power. The Minister or their delegate may revoke the cancellation if they are satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. The Tribunal’s task in this matter is the latter question.

…

134.    The Direction states that Primary Consideration 1 is “generally” to be given greater weight than other primary considerations. It also states that primary considerations should generally receive greater weight than other considerations. However, the Tribunal considers that the use of the word “generally” preserves the decision-makers' discretion rather than creating an absolute rule that would always require giving the protection consideration more weight than all other factors combined. Such an approach would effectively eliminate the statutory discretion available to decision-makers and override the required holistic weighing and balancing exercise. Legal authorities, including decisions in Blake, Aksu, and Lu cases, support the continuing existence of a discretion and reinforce that decision-makers must consider the specific circumstances of each case when deciding whether to exercise their discretion.

(Citations omitted, emphasis added)

56    The applicant’s previous written submissions explain that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation of the visa and, if satisfied that there is “another reason” why the cancellation should be revoked, the Tribunal is required to revoke the cancellation and has no residual discretion to refuse to do so: see Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38] and Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 180 at [71] and the cases cited therein.

57    At the hearing of the application, I raised this argument with the Minister’s counsel.

58    Counsel for the Minister accepted that a decision under s 501CA(4) is “evaluative and not discretionary”, but submitted that the Tribunal’s reasons, read as a whole, demonstrate that the Tribunal in substance understood the nature of the power it was exercising. Counsel continued by referring to the Minister’s previous written submissions filed on 23 March 2026 responding to the grounds identified in the applicant’s amended originating application.

59    Those submissions are that when read as a whole, the Tribunal’s references to a discretion was in relation to the determination of the decision-maker as to what weight was to be given to each of the considerations in Direction 110, rather than any broad discretion in relation to whether to revoke or not to revoke the cancellation of the applicant’s visa.

60    At the hearing, counsel for the Minister submitted that the Tribunal engaged in the correct statutory inquiry between R [122] and [135] which culminated in its conclusion at R [135] that it was not satisfied there was another reason to revoke the decision to cancel the applicant’s visa. That was said to demonstrate that the Tribunal undertook the necessary evaluative exercise under s 501CA(4)(b)(ii) and reached the requisite state of satisfaction as part of that exercise, rather than exercising a residual discretion.

61    I accept the Minister’s submissions. On a consideration of the Tribunal’s reasons as a whole, I do not consider that the Tribunal misconceived the nature of its task.

62    The second matter raised by the applicant in the applicant’s previous written submissions observed that the Tribunal: at R [121] refers to the statutory framework for decisions made under s 501(2), rather than s 501CA(4), and that: at R [136] there was an incorrect reference to the delegate’s decision to cancel the applicant’s visa as opposed to the delegate’s decision not to revoke the cancellation of the applicant’s visa.

63    The applicant submitted that, in exercising the power to cancel the applicant’s visa under s 501(2), as opposed to determining whether to revoke a cancellation under s 501CA(4), the Tribunal asked itself the wrong legal question.

64    So much was disputed by the Minister in their written submissions dated 23 March 2026, where it was submitted that the errors in R [121] and [136] were typographical errors and did not infect the decision or the discharge by the Tribunal of its statutory task under s 501CA(4).

65    Once again, taken as a whole, it is clear that the Tribunal’s references: at R [121] and [136] were typographical errors.

Conclusion

66    The application is dismissed.

67    The applicant is to pay the Minister’s costs of and incidental to the application.

Associate:

Dated:    15 October 2026