Federal Court of Australia

Smith v Minister for Immigration and Citizenship [2026] FCA 1520

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 5 November 2025 be set aside.

2.    The applicant’s application for review of the decision of the delegate of the first respondent made on 12 August 2025 be remitted to the second respondent, differently constituted, for determination according to law.

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

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

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, Mr Joshua Smith, is a citizen of New Zealand. Until recently, he resided in Australia pursuant to a visa granted to him by the first respondent, the Minister for Immigration and Citizenship. In November 2024, however, the Minister cancelled Mr Smith’s visa following his conviction and imprisonment for various criminal offences. A delegate of the Minister subsequently declined to revoke the cancellation of Mr Smith’s visa. That decision was affirmed on review by the Administrative Review Tribunal.

2    In this proceeding, Mr Smith applied to have the Tribunal’s decision set aside on that basis that it failed to exercise, or lawfully exercise, its jurisdiction in respect of Mr Smith’s review application. Mr Smith contended, in that regard, that the Tribunal misconstrued or misunderstood, and as a result failed to comply with or to properly apply, a provision in a Ministerial direction that it was required to follow in the exercise of its jurisdiction.

3    As explained in the reasons that follow, Mr Smith’s contention that the Tribunal misconstrued and failed to properly apply the relevant Ministerial direction has merit. That error was material to the Tribunal’s exercise of its jurisdiction in the circumstances of Mr Smith’s case. The Tribunal’s decision must accordingly be set aside.

4    References in these reasons to relevant statutory provisions are to those provisions as at the time of the Tribunal’s decision.

RELEVANT FACTS AND PROCEDURAL HISTORY

5    Mr Smith arrived in Australia in 2008 as the holder of a Class TY Subclass 444 (Special Eligibility – Temporary) visa. He was 20 years old at the time. Regrettably, within two years of his arrival in Australia he committed a criminal offence. To make matters worse, his criminal offending not only continued at regular intervals thereafter, it also began to include increasingly serious offences and offending behaviour. His offending conduct culminated, as it were, in a series of offences for which he was convicted on 11 September 2024. He was sentenced to an aggregate term of imprisonment of one year and six months (with a non-parole period of nine months), in respect of the more serious offences. Community Corrections Orders (which, among other things, required Mr Smith to be subject to supervision upon his release from jail) were made in respect of the other offences.

6    It is unnecessary, for present purposes, to provide any further information about the offences for which Mr Smith was convicted and sentenced in September 2024. The sentenced imposed on Mr Smith for those offences triggered or led to the cancellation of his visa. As will be seen, however, Mr Smith’s challenge to the Tribunal’s decision focussed on the Tribunal’s consideration of, and findings concerning, other offences in respect of which Mr Smith was convicted on 31 May 2022.

The cancellation of Mr Smith’s visa

7    On 4 November 2024, Mr Smith’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth), which relevantly provided as follows:

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

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

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

(ii)    …; and

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

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

9    As the facts relating to Mr Smith’s conviction and sentence in September 2024 indicate, he did not pass the character test because he had a substantial criminal record. That is because he had been sentenced to a term of imprisonment of 12 months or more in respect of those offences. At the time his visa was cancelled, Mr Smith was serving that sentence of imprisonment, on a full-time basis, in a custodial institution, for those offences, which were State offences.

The Minister’s delegate refuses to revoke the cancellation

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

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

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

11    Mr Smith was invited to, and subsequently made, representations to the Minister about the revocation of the decision to cancel his visa. On 12 August 2025, the Minister’s delegate decided not to revoke the cancellation. It is unnecessary for the purposes of this application to refer to the reasons given by the delegate.

The Tribunal affirms the delegate’s decision

12    Mr Smith applied to the Tribunal for a review of the decision of the delegate. On 5 November 2025, the Tribunal affirmed the delegate’s decision and published a statement of reasons (R).

THE TRIBUNAL’S DECISION AND REASONS

13    It is unnecessary to provide a detailed account of the Tribunal’s key findings and reasons for affirming the delegate’s decision given the narrow scope of Mr Smith’s contentions concerning the jurisdictional error or errors made by the Tribunal. It is nevertheless necessary to give a short account of the Tribunal’s decision, particularly as the materiality of the Tribunal’s alleged error is in issue. Before briefly addressing the Tribunal’s decision and reasons, however, it is necessary to briefly outline the content of a direction that the Tribunal was required to follow in determining Mr Smith’s review application.

Direction 110

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

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

16    As will be seen, Mr Smith’s challenge to the Tribunal’s decision focussed on the Tribunal’s findings and reasons concerning the protection of the Australian community and family violence. It is, therefore, necessary to look at what the Direction said about those primary considerations in a little more detail.

17    Clause 8.1 of the Direction concerned the primary consideration of the protection of the Australian community. Decision-makers were directed by cl 8.1(1) to: “keep in mind that the safety of the Australian community is the highest priority of the Australian Government”; note that the “Government is committed to protecting the Australian community from harm as a result of criminal activity … by non-citizens”; and have regard to the “principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding … and will not cause or threaten harm to individuals or the Australian community”. More significantly, at least for purposes of considering Mr Smith’s challenge to the Tribunal’s decision, cl 8.1.1(1)(a) stated:

8.1.1. The nature and seriousness of the conduct

(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[.]

    …

18    Importantly, “family violence” was defined in the following terms in cl 4(1):

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

a)    an assault; or

b)    a sexual assault or other sexually abusive behaviour; or

c)    stalking; or

d)    repeated derogatory taunts; or

e)    intentionally damaging or destroying property; or

f)    intentionally causing death or injury to an animal; or

g)    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

i)    preventing the family member from making or keeping connections with his or her family, friends or culture; or

j)    unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.

19    Clause 8.1.1(1)(b)(ii) also indicated that “crimes against … government representatives or officials due to the position they hold” were also considered by the Australian Government and the Australian community to be serious.

20    Clause 8.1.2 of the Direction explained what decision-makers were required to have regard to when considering the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In short, decision-makers were relevantly directed to have regard to the nature of the harm that the community would suffer if the non-citizen engaged in further criminal conduct and the likelihood of the non-citizen engaging in further criminal conduct.

21    Clause 8.2 of the Direction dealt with the primary consideration relating to family violence committed by the non-citizen. It was in the following terms:

8.2. Family violence committed by the non-citizen

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2) This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the non­ citizen, the following factors must be considered where relevant:

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

b) the cumulative effect of repeated acts of family violence;

c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

i. the extent to which the person accepts responsibility for their family violence related conduct;

ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.

22    The expression “member of the person’s family” for the purposes of the definition of family violence was defined in cl 4 as including “a person who has, or has had, an intimate personal relationship with the relevant person”.

Findings in respect of the protection of the Australian community and family violence

23    The Tribunal was clearly cognisant of the fact that it was required to comply with the Direction: R[18]-[19]). It also briefly adverted to the requirement that it “keep in mind” the matters referred to in cl 8.1(1) of the Direction (R[94]) and consider the matters referred to in cl 8.1(2), including the nature and seriousness of the criminal offending to date: R[96]. It went on to address the nature and seriousness of Mr Smith’s criminal offending to date: R[97]-[112].

24    Critically, at least insofar as Mr Smith’s challenge to the Tribunal’s decision is concerned, the Tribunal (at R[100]-[102]) turned its mind to the question whether two offences committed by Mr Smith could be characterised as family violence offences. Those offences were: first, an offence of “destroy or damage property (DV)” (the damage property offence) in respect of which Mr Smith was convicted on 31 May 2022 and conditionally released for 12 months (a sentence commonly referred to as a good behaviour bond); and second, an offence of contravening a prohibition or restriction in an Apprehended Violence Order (AVO), in respect of which Mr Smith was convicted on 11 September 2024 and was the subject of a Community Correction Order. The Tribunal found that the first of those offences was an offence of family violence and that the second offence “may” have been such an offence. Its reasons for so concluding were (at R[100]-[102]):

The Tribunal considers that, of the Applicant’s recent offences, at least one could [be] classified as very serious, as per cl 8.1.1(1)(a)(iii) of Direction 110. This is the offence of destroying or damaging property (domestic violence) for which the Applicant was convicted with a 12 month conditional release order on 31 May 2022, and which relates to an incident on 1 May 2022 during which the Applicant threw a brick through the living room window of a woman with whom he had previously had a sexual relationship, and whom he believed owed him money, while the woman and another person were inside the living room.

The Tribunal notes that at hearing, the Applicant denied that he was in a relationship with the woman in question, maintaining that this offence therefore did not constitute domestic violence. He further indicated that he did not intend to injure the woman (or the other person) by throwing the brick through the window and felt that his actions were justified as he believed that the woman had diverted significant Centrelink payments to which he was entitled into her bank account. However, the Tribunal has regard to the definition section of Direction 110, which indicates that ‘family violence’ includes intentionally damaging or destroying property of a family member, and that a ‘a member of the person’s family’ is defined to include a person who has, or has had, an intimate personal relationship with the relevant person. In this case, the Applicant acknowledged that he had had a sexual relationship in the past with the woman in question, although he described it as one that he did not regard as serious. Nevertheless, the Tribunal finds that this constitutes family violence and is therefore to be characterised as very serious, regardless of whether there is a conviction for the offence or a sentence imposed.

The Tribunal notes that there is another offence which could be characterised as involving domestic violence, being contravention of an Apprehended Violence Order (AVO) granted to another woman against the Applicant, when the Applicant was seen in her company in May 2024. However, as noted by the sentencing Magistrate on 11 September 2024, although a breach of an AVO, it was not seen to be a serious one, a view with which the Tribunal concurs.

(Footnotes omitted.)

25    The Tribunal also briefly considered whether various other offences committed by Mr Smith involved “crimes committed against … officials due to the position they hold” to which cl 8.1.1(1)(b)(ii) of the Direction applied. The Tribunal concluded that those offences did involve “assaults on police and resisting arrest and/or hindering police” and therefore constituted “serious offending, as per cl 8.1.1(1)(b)(ii)” of the Direction: R[103].

26    The Tribunal ultimately concluded that the “majority of recent offences” committed by Mr Smith were serious and that that consideration weighed “heavily in favour of not revoking the cancellation” of Mr Smith’s visa: R[110].

27    In relation to the risk to the Australian community should Mr Smith engage in any further offending conduct, the Tribunal found that the nature of the harm to individuals or the Australian community should Mr Smith reoffend was “very serious” given that his past offending included, relevantly, “throwing a brick through the window of an acquaintance”: R[116]. The Tribunal concluded that the nature of the harm weighed heavily in favour of not revoking the cancellation of Mr Smith’s visa. The Tribunal also concluded that Mr Smith remained “a medium risk of reoffending” (R[133]), which was another consideration to which it gave significant weight in favour of not revoking the cancellation of Mr Smith’s visa: R[134]. In considering whether there was a risk of Mr Smith reoffending, the Tribunal did not itself give any separate or specific consideration to whether there was any risk that Mr Smith would commit further family violence offences.

The Tribunal’s findings in respect of the primary consideration of family violence

28    In relation to the primary consideration concerning family violence, the Tribunal essentially just reiterated its findings that the damage property offence constituted family violence and that the offence of breaching the terms of an AVO “may” constitute family violence. The Tribunal’s brief reasons in that regard were as follows (at [137]-[138]):

To the extent that the incident outlined in paragraph 103 (breach of an AVO) above may constitute family violence, the Tribunal is satisfied that it was at the low end of the scale. Accordingly, it gives this incident neutral weight in its considerations.

However, the Tribunal considers that the 2022 incident in which the Applicant threw a brick through the window of a woman with whom he previously had an intimate relationship to be serious and to constitute family violence (as set out at paragraphs 102 - 103 above) and it gives this some weight in favour of cancelling the Applicant’s visa.

29    The Tribunal’s finding that the “2022 incident” was “serious” appears to have been based on little more than it’s earlier finding that the incident constituted family violence and was therefore, by virtue of the Direction, to be regarded as serious. That is apparent from the cross-reference to the paragraph of the reasons (R[101]) where the Tribunal found that the incident was to be “characterised” as serious because it constituted family violence.

Other findings

30    The Tribunal’s other findings may be dealt with briefly.

31    The Tribunal considered the strength and nature of Mr Smith’s ties to Australia and found that the adverse effect that the cancellation of Mr Smith’s visa would have on members of his Australian family “should be given neutral weight” (R[146]) and that Mr Smith did “not have strong employment or social ties to Australia”: R[152]. The Tribunal concluded that those “factors slightly weigh in favour of not revoking the cancellation” of Mr Smith’s visa: R[153].

32    In relation to the best interests of minor children in Australia, the Tribunal addressed Mr Smith’s claim that he believed that he was the father of a young child in Australia. It concluded that, even if that was the case, Mr Smith had not played any parental role in respect of that child and it remained “speculative” that he would do so in the future: R[167]. The Tribunal accordingly gave that factor “little weight in favour of revocation of the cancellation decision”: R[167]. The Tribunal similarly gave “neutral” weight to Mr Smith’s “almost non-existent relationship with his [minor] Australian cousins”: R[171]-[172].

33    As for the expectations of the Australian community, the Tribunal concluded that “the Australian community would expect [Mr Smith’s] visa to be cancelled” and that “this consideration weighs heavily in favour of not revoking the cancellation”: R[177]. That finding was based, at least in part, on the Tribunal’s finding that Mr Smith’s offending included “serious offences … including against police officers”: R[177].

34    Finally, the Tribunal found that the legal consequences of the cancellation decision weighed slightly in favour of revoking the cancellation (R[188]); that the extent of the impediments Mr Smith might face if removed to New Zealand was essentially a neutral factor (R[196]) and that the impact the cancellation may have on any Australian business interests carried no weight: R[196].

The Tribunal’s conclusion

35    The Tribunal weighed up the various findings it had made in respect of the primary and other considerations in the Direction. It gave greater weight to the “protection of the Australian community and to the primary considerations”, including the expectations of the Australian community. That conclusion flowed, in part, from the Tribunal’s findings concerning Mr Smith’s “serious offending over a prolonged period”: R[206], [208]. Having weighed up the factors, the Tribunal concluded that the cancellation of Mr Smith’s visa should not be revoked: R[209].

THE APPLICANT’S REVIEW GROUND AND SUBMISSIONS

36    Mr Smith’s amended originating application contains a single review ground in the following terms:

Grounds of application

1.    The Tribunal erred in law by failing to comply with and understand Direction 110 made by the first respondent under s 499(1) of the Migration Act 1958, as it was required to do under s 499(2A) of the Act.

Particulars

i.    The Tribunal failed to understand and apply the proper meaning of “family violence” as defined in cl 4.1 of the Direction in finding that the conduct identified at D[100]-[101] constituted “family violence”.

ii.    The Tribunal failed consider for itself the nature and seriousness of the Applicant’s conduct as required under cl 8.1(2)(a) of the Direction.

iii.    The Tribunal failed to undertake the reasoning process prescribed by cl 8.2(3) of the Direction in considering of the seriousness of that conduct.

37    As can be seen, Mr Smith contended that the Tribunal failed to comply with the Direction in three particularised ways. Upon analysis, however, it is clear that each of the particulars is related in that they each concern the Tribunal’s findings and reasoning in respect of Mr Smith’s offending behaviour that the Tribunal found to constitute family violence.

38    Mr Smith’s argument in respect of the first particular turned to some extent on the proper construction of the definition of “family violence” in cl 4 of the Direction. He argued that, properly construed, the cl 4 definition had two limbs, both of which had to be made out for the conduct in question to constitute family violence. The first limb was that the person had engaged in “violent, threatening or other behaviour”. The second limb was that the person’s behaviour either “coerces or controls a member of the person’s family” or “causes the family member to be fearful”. Mr Smith contended that the Tribunal’s reasons indicate that it misconstrued the definition because, in finding that the damage property offence constituted family violence, it made no finding in respect of the second limb.

39    Mr Smith’s argument in respect of the second particular was, in essence, that the Tribunal was required by cl 8.1(2)(a) and cl 8.1.1 of the Direction to consider and make findings in respect of the seriousness of his offending conduct. He argued, however, that the Tribunal failed to consider and make findings concerning the seriousness of the damage property offence, being the offence which the Tribunal had found involved acts of family violence. Rather, the Tribunal characterised that offence as being serious simply because cl 8.1.1(1)(a) of the Direction provided that acts of family violence are “viewed very seriously by the Australian Government and the Australian community”.

40    Mr Smith’s argument in respect of the third particular focussed on cl 8.2(3) of the Direction which required the Tribunal to consider the seriousness of the family violence by reference to, among other things, the frequency of the conduct and the “cumulative effect of repeated acts of family violence”. Mr Smith contended that the Tribunal did not consider either of those factors when considering the seriousness of the damage property offence.

THE MERITS OF THE REVIEW GROUND

41    There is merit in Mr Smith’s arguments in respect of each of the particulars of his review ground. It is apparent from the Tribunal’s reasons that it not only misunderstood or misconstrued the definition of “family violence” in cl 4 of the Direction, but also misunderstood what flowed from its erroneous finding that the damage property offence involved family violence.

The Tribunal misunderstood or misconstrued the definition of family violence

42    The definition of “family violence” in cl 4 of the Direction was quoted in full earlier in these reasons. A similar definition of “family violence” in s 4AB of the Family Law Act 1975 (Cth) was considered by the Full Court of the Federal Circuit and Family Court in Pickford v Pickford (2024) 70 Fam LR 85; [2024] FedCFamC1A 249. The majority (Aldridge and Carew JJ, with whom McClelland DCJ agreed) found (at [44]), in respect of that definition, that “[v]iolent behaviour or threatening behaviour are stand-alone behaviours that fall within the definition of family violence” and that “[s]uch behaviours may coerce or control or cause fear, but that is not essential”. The minority (Austin and Williams JJ) took a different view and found (at [109]) that the definition is “disjunctive and admits of ‘violent, threatening or other behaviour’ amounting to ‘family violence’ in only one of two ways, being behaviour of the sort that … ‘coerces’ or ‘controls’ a family member … or causes the family member to be ‘fearful’”.

43    Several single judges of this Court have considered the definition of family violence in cl 4 of the Direction and the opposing views of the majority and minority in Pickford v Pickford. In Cowgill v Minister for Immigration and Multicultural Affairs [2025] FCA 704, Vandongen J (at [52]) considered that the view of the minority in Pickford was compelling, but found it unnecessary to express any final view.

44    In MVPF v Minister for Immigration and Citizenship [2025] FCA 1263, however, Downes J found (at [27]) that the reasoning of the minority in Pickford v Pickford was correct and, by implication, that the view of the majority was incorrect. Her Honour reasoned (at [28]-[30]), in essence, that the grammatical meaning of the definition was that to constitute “family violence” the behaviour must involve “violent, threatening or other behaviour … that coerced or controlled [the victim] (the first limb) or caused [the victim] to be fearful (the second limb)”: at [30].

45    In GNHW v Minister for Immigration and Citizenship (No 2) [2025] FCA 1578, Logan J referred to the competing views in Pickford v Pickford, but considered that his Honour was not required to reach any concluded view as to which was to be preferred. While his Honour considered the minority view to be open, he would have deferred to the majority essentially as a matter of judicial comity had it been necessary to decide the issue.

46    In Iiga v Minister for Immigration and Citizenship [2026] FCA 234, Derrington J considered the definition of “family violence” in cl 4 of the Direction. It appears, however, that either his Honour was not taken to Pickford v Pickford, Cowgill, MVPF or GNHW, or he did not consider that it was necessary for him to consider any of those judgments. Nevertheless, his Honour’s construction of the definition appeared to align with the minority in Pickford v Pickford. His Honour concluded that behaviour will only constitute family violence as defined if it “involved threatened or actual violence, had the effect of coercing or controlling the family member, or caused the family member to be fearful.”

47    The judgment of the majority in Pickford v Pickford is persuasive authority, however I am not obliged to follow it. The reasoning of another court in construing a provision in a statute does not bind another court when construing a provision in another statute, even if the text of the provisions is similar or even the same: McNamara (McGrath) v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646; [2005] HCA 55 at [40].

48    I should, however, generally follow another first instance judgment in this Court in respect of the construction of a particular provision in a statute unless I am satisfied that the judgment is plainly wrong: Transurban CityLink Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2. I am not satisfied that the judgment of Downes J in MVPF is plainly wrong. Indeed, I am satisfied that her Honour was right in preferring the minority view in Pickford v Pickford and correct to construe cl 4 of the Direction consistently with that view.

49    The text of the definition of family violence clearly indicates that two elements need to be made out before behaviour can be said to constitute family violence.

50    The first element concerns the objective nature of the conduct. The conduct must be either “violent, threatening or other behaviour”. The fact that this element is not a standalone element, as the majority in Pickford v Pickford effectively found, is demonstrated by the fact that the element includes “other behaviour”. It is difficult to see how “other behaviour” could, without more, constitute family violence.

51    The second element that must be established concerns the effect of the behaviour in question. The behaviour must either coerce or control a member of the person’s family – that is, have the effect of coercing or controlling – or it must cause the family member to be fearful.

52    Two other features of the definition should be noted. The first is that the second element concerns the effect of the behaviour in question, not the purpose or intention of the perpetrator. It follows that it is not sufficient for the behaviour to have been engaged in for the purpose of, or with the intention of, coercing or controlling, or for the purpose of causing fear. That may perhaps be thought to be a weakness or deficiency in the definition, though it is not possible to read the text of the definition as including the intended effect of the behaviour.

53    The second feature of the definition to note is that the definition goes on to include examples of behaviour that “may” constitute family violence. The definition does not state that behaviour that falls within those examples does or will constitute family violence. It follows that behaviour that falls within the descriptions in the examples does not necessarily constitute family violence. Rather, behaviour that falls within one of the examples will only constitute family violence if it satisfies the elements of the definition itself. For example, behaviour which involves “intentionally damaging or destroying property” will not necessarily constitute family violence. It will only do so if that behaviour had the effect of coercing or controlling a member of the perpetrator’s family, or causing the family member or members to be fearful.

54    Once the elements of the definition of family violence are properly understood, it is readily apparent that the Tribunal in Mr Smith’s case misunderstood or misconstrued the definition in finding that the damage property offence committed by Mr Smith constituted family violence. That is so for at least two reasons.

55    First, the Tribunal did not find that Mr Smith’s conduct which gave rise to his conviction for the damage property offence either had the effect of coercing or controlling a member of his family, or caused a member of his family to be fearful. The Tribunal described the conduct that constituted the offence as involving Mr Smith throwing “a brick through the living room window of a woman with whom he had previously had a sexual relationship, and whom he believed owned him money, while the woman and another person were inside the living room”: R[100]. The Tribunal correctly accepted that the woman was a member of Mr Smith’s family for the purposes given that she had previously been in an “intimate personal relationship” with Mr Smith (see R[101]), but did not make any finding as to whether the woman was coerced or controlled by Mr Smith’s behaviour, or that his behaviour had the effect of coercing or controlling her, or causing her to be fearful. There is no indication that the Tribunal even turned its mind to that issue.

56    Second, and relatedly, it is clear from the Tribunal’s reasons (in particular at R[101]) that the Tribunal considered that behaviour fell within the definition of family violence if it simply fell within one of the examples referred to in the definition. The Tribunal concluded that Mr Smith’s behaviour in committing the damage property offence fell within the definition because it involved “intentionally damaging or destroying property”. For the reasons already given, that is a misunderstanding or misconstruction of the definition. That misunderstanding or misconstruction resulted in the Tribunal not even turning its mind to whether the behaviour fell within the operative part of the definition.

57    The Minister submitted, in effect, that the Tribunal was not required to make a finding about whether Mr Smith’s behaviour coerced or controlled, or caused the woman to be fearful, because Mr Smith’s representation concerning the damage property offence focussed solely on his contention that he was not in a relationship with the woman at the time of the offence. In the Minister’s submission, the Tribunal’s task in applying the definition of family was to be undertaken by reference to the case made by Mr Smith (cf Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2002] HCA 17 at [22]) and therefore the Tribunal was not required to specifically address that part of the definition that required the behaviour to have had the effect of coercing or controlling Mr Smith’s former partner, or causing her to be fearful.

58    I do not accept that submission. The Tribunal’s procedure is inquisitorial not adversarial. The Tribunal was required to consider and apply the definition of family violence in cl 4 of the Direction in determining whether Mr Smith had engaged in family violence for the purposes of cl 8.1 and 8.2 of the Direction, particularly given that Mr Smith had denied having engaged in any family violence The fact, if it be the fact, that Mr Smith may not have specifically contended that his behaviour did not fall within the definition of family violence because it did not have the effect of coercing, controlling or causing fear, did not obviate the need for the Tribunal to consider and make findings about whether his behaviour did in fact satisfy the elements of the definition. In any event, in the absence of any evidence (in the form of a transcript or otherwise) about what was or was not said during the Tribunal hearing, it is not possible to positively conclude that Mr Smith did not deny in fact that his conduct meet the definition of family violence because it did not have the effect of coercion, control or causing fear.

59    The Minister also submitted the Tribunal’s reasons must be read fairly, not in an unduly critical manner and in light of the content of the statutory obligation pursuant to which the reasons were prepared: cf BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34. It followed, so it was submitted, that it cannot be inferred that the Tribunal made no finding about the effect of the conduct merely from the fact that the Tribunal’s reasons did not include any express finding in that regard. The Minister pointed to several other paragraphs of the Tribunal’s reasons which referred, albeit fleetingly, to the damage property offence (in particular R[34] and [68]-[71) and submitted that the Tribunal’s reasons at R[100]-[101] must be read together with, or in the context of, those other paragraphs.

60    It can, of course, be accepted that the Tribunal’s reasons must be read fairly and as a whole. The difficulty for the Minister’s argument, however, is that none of the other brief references in the Tribunal’s reasons to the damage property offence indicate that the Tribunal correctly construed the definition of family violence in cl 4 of the Direction. None of the other paragraphs advert to the need for the behaviour in question to have coerced, controlled or caused fear, and none of the other paragraphs include any finding in that regard.

61    The Minister also submitted that the facts of damage property offence, as recorded in the police Facts Sheet, were sufficiently clear that it could readily be inferred that Mr Smith’s conduct had the effect of coercing or controlling Mr Smith’s former partner, or had caused her to be fearful. It followed, so it was submitted, that it was “clear why the Tribunal proceeded on the basis it did”, namely by not considering or making any express finding concerning the effect of the behaviour. Indeed, the Minister went so far as to submit that the contention that Mr Smith’s behaviour may not have had the effect of coercing, controlling or causing fear risked going behind the factual foundation for the conviction and sentence: cf HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202.

62    That submission must also be rejected. As Besanko J (with whom Allsop CJ and Kerr J relevantly agreed) observed in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565; [2021] FCAFC 195 at [130], the “cases are legion in which the Courts have said that it is not appropriate, or ordinarily appropriate, to infer that the decision-maker has made findings or drawn conclusions not referred to in the written reasons of the decision-maker”. A similar point was made in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318; [2022] FCAFC 124 at FCR [133]. As has already been noted, there is no indication whatsoever in the Tribunal’s reasons that it made any finding that Mr Smith’s conduct had the effect of coercing, controlling or causing his former partner to be fearful. It cannot be inferred that the Tribunal made any such finding, or proceeded on the basis of such a finding.

63    Nor were the facts, as recorded in the police Facts Sheet, as clear as suggested by the Minister. The Facts Sheet does not state that Mr Smith’s conduct had the effect of coercing, controlling or causing his former partner to be fearful. Nor was that an element of the offence to which Mr Smith pleaded guilty. While the facts may have tended to suggest that Mr Smith was motivated to throw the brick through his former partner’s living room window because he claimed she owed him money, it does not necessarily follow that his behaviour in fact had the effect of coercing or controlling his former partner, or even causing her to be fearful. The police Facts Sheet said nothing of the sort. The fact that there was a notation that the offence was “domestic violence related” is irrelevant in terms of determining whether the definition in cl 4 of the Direction was engaged.

64    In any event, once it is accepted that the Tribunal misconstrued or misapplied the definition of family violence in cl 4 of the Direction in finding that the damage property offence involved family violence, a conclusion of error cannot be avoided by reasoning that the finding of family violence was in any event open to the Tribunal on the evidence: cf LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 1; [2023] FCAFC 64 at [61].

65    A fair reading of the Tribunal’s reasons supports the conclusion that it misunderstood or misconstrued the definition of family violence in cl 4 of the Direction and did not make any factual findings capable of supporting its conclusion that the damage property offence committed by Mr Smith involved family violence. The Tribunal accordingly did not properly apply the Direction.

66    The question whether this error was material is discussed in more detail later. Suffice it to say at this point that the Tribunal’s unsupported finding that Mr Smith’s offence involved family violence also fed into other critical findings made by the Tribunal.

The Tribunal failed to properly consider the nature and seriousness of the conduct

67    In considering the primary consideration of protection of the Australian community, the decision-makers are required, among other things, to “give consideration to … the nature and seriousness of the non-citizen’s conduct to date”: cl 8.1(2)(a) of the Direction. In considering the “nature and seriousness of the non-citizen’s offending or other conduct to date, decision-makers must have regard to” the fact that “acts of family violence” are “viewed very seriously by the Australian government and the Australian community”: cl 8.1.1(1)(a)(iii) of the Direction.

68    While a decision-maker is required, in circumstances involving family violence, to take into account the view of the Australian Government and the Australian community about the seriousness of such conduct, that does not require the decision-maker to find that the conduct was in fact serious or very serious: Price v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 301 FCR 484; [2023] FCAFC 171 at [71]-[72]. Rather, decision-makers must consider and make their own findings concerning the seriousness of the family violence in the particular circumstances of the case under consideration. In considering the nature and seriousness of the conduct, decision-makers must also have regard to other considerations including: “the impact of the offending on any victims” (at least where information in that regard is available); the “frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness” and the “cumulative effect of repeated offending”: cl 8.1.1(1)(d), (e) and (f) of the Direction.

69    The Tribunal did not follow or comply with the Direction in that regard. Having found that Mr Smith’s conduct in committing the damage property fell within the definition of family violence in cl 4 of the Direction, the Tribunal simply concluded that Mr Smith’s offending conduct “is therefore to be characterised as serious, regardless of whether there is a conviction for the offence or a sentence imposed”: R[101]. The Tribunal cited cl 8.1.1(1)(a)(iii) of the Direction as supporting that conclusion. As has already been noted, the effect of that clause is that acts of family violence are to be taken to be viewed very seriously by the Australian Government and the Australian community. That does not compel the Tribunal to find that the conduct was objectively serious or otherwise dictate the outcome of the Tribunal’s consideration of the seriousness of Mr Smith’s conduct: Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82 at [58].

70    The Tribunal’s conclusion that Mr Smith’s conduct was serious was based entirely on the views of the Australian Government and Australian community in that regard. The Tribunal did not give any consideration to whether there was any available information about the impact of the offending on any victim, or whether Mr Smith had engaged in any further similar offending involving acts of family violence. Nor did it make any finding in respect of the seriousness of Mr Smith’s offending conduct independent of the views of the Australian Government and Australian community.

71    The Minister submitted that a fair reading of the Tribunal’s reasons reveals that the Tribunal’s finding that the damage property offence was very serious, or serious, was based on its own consideration of the facts or circumstances of the offence and was not simply based on its finding that Mr Smith’s conduct involved family violence. That was said to be apparent from the Tribunal’s reference to the damage property offence in parts of its reasons other than R[101], including R[100], [116] and [138]. Those paragraphs of the reasons, however, simply state the damage property offence “could be classified as very serious as per cl 8.1.1(1)(a)(iii)” (R[100]), that Mr Smith’s serious conduct included “throwing a brick through the window of an acquaintance” (R[116]) and that the Tribunal considered that the “2022 incident”, which involved Mr Smith throwing “a brick through the window of a woman with whom he had previously had an intimate relationship”, was “serious” and constituted “family violence as set out at paragraphs 102-103 (it was common ground that this was in fact a reference to [100]-[101]).

72    I am not persuaded that any of those other paragraphs of the Tribunal’s reasons reveal that the Tribunal considered the seriousness of the damage property offence beyond simply finding that Mr Smith’s conduct in committing that offence involved family violence and therefore must be characterised as serious. There is, for example, no indication in any of those paragraphs that the Tribunal had regard to whether there was any available information about the impact of the offending on any victim, or whether Mr Smith had engaged in any further similar offending involving acts of family violence as required by cl 8.1.1(d) and (e) of the Direction. Indeed, the Tribunal’s statement (at R[100]) that the damage property offence could be classified as serious “as per cl 8.1.1(1)(a)(iii)” if anything underscores the conclusion that the finding was based on nothing more than the fact that the Tribunal had found that the offence involved family violence.

73    The Minister submitted that the Tribunal’s conclusion that the damage property offence could be classified as serious “as per cl 8.1.1(1)(a)(iii)” did not itself indicate error on the part of the Tribunal. The Minister referred, in that context, to the judgment in Lasalo, where the Full Court (at [58]) considered that the Tribunal’s reasoning to the effect that it was required to “rate” certain conduct involving family violence at a heightened level of seriousness “as per the criteria of the Ministerial Direction” as being “troubling at first blush”. The Full Court ultimately concluded, however, that the Tribunal had come to its own conclusion that the family violence was seriousness.

74    The Minister’s reliance on Lasalo was misplaced. The Full Court’s conclusion was based on the particular reasoning of the Tribunal in that case, which suggested that the Tribunal had in fact considered the seriousness of the family violence itself and had not simply based its finding on the views of the Australian Government and Australian community “as per” cl 8.1.1(1)(a)(iii) of the Direction.

75    It should also be briefly noted that the Tribunal appears to have made a similar error in concluding (at [R[103]) that Mr Smith’s “offences involving assaults on police and resisting arrest and/or hindering police in the execution of their duty” constituted “serious offending as per cl 8.1.1(1)(b)(ii)”. It is apparent that the Tribunal found that those offences were serious simply because they comprised crimes committed against “officials due to the position they hold, or in the performance of their duties” (cl 8.1.1(1)(b)(ii) of the Direction) and were therefore viewed “very seriously by the Australian Government and the Australian community” (cl 8.1.1(1)(a) of the Direction). The Tribunal did not separately or independently assess the nature seriousness of that offending conduct, including by reference to the considerations referred to in cl 8.1.1(d), (e) or (f) of the Direction.

76    I am, in all the circumstances, persuaded that the Tribunal misunderstood or misconstrued the clauses of the Direction concerning the assessment of the nature and seriousness of Mr Smith’s conduct and how it should treat family violence in the context of the primary consideration of the protection of the Australian community. The Tribunal regarded itself as being bound to find that the conduct which it had found to constitute family violence was serious, or very serious, because the Direction stated that the Australian Government and the Australian community viewed that conduct very seriously. The Tribunal did not consider and make findings concerning the seriousness of the family violence based on the facts and circumstances of the conduct in question including, for example, the impact of the conduct on the victim or the frequency of the conduct. A similar error appears to have been made by the Tribunal in respect of the offending conduct involving “officials due to the position they hold, or the performance of their duty”.

The Tribunal failed to consider the seriousness of the family violence in accordance with cl 8.2.3 of the Direction

77    As noted earlier, the Direction stated that a primary consideration in determining whether to revoke a visa cancellation was “whether the conduct engaged in constituted family violence”. For the reasons given earlier, the Tribunal’s finding that the damage property offence was based on an erroneous construction or misunderstanding of the definition of family violence in cl 4 of the Direction. Even putting that error to one side, there is merit in Mr Smith’s contention that the Tribunal made a further error by failing to follow and apply cl 8.2 of the Direction in assessing the seriousness of the behaviour that it had found to constitute family violence.

78    Clause 8.2(1) of the Direction provided that the Government’s “serious concerns” about family violence were “proportionate to the seriousness of the family violence engaged in by the non-citizen”. In that context, cl 8.2(3) provided that, in considering the seriousness of the family violence, the Tribunal was required to consider a number of factors “where relevant”, including “the frequency of the non-citizen’s conduct and/or whether here is any trend of increasing seriousness”, the “cumulative effects of repeated acts of family violence” and “rehabilitation achieved at time of decision”: cl 8.2(3)(a), (b) and (c) of the Direction.

79    The Tribunal did not conduct any such assessment of the seriousness of the damage property offence. It simply concluded that the incident giving rise to the offence constituted family violence and was “serious”: R[138]. There is no indication in the Tribunal’s reasons that, in assessing that the incident was serious, the Tribunal had regard to whether Mr Smith had frequently or repeatedly engaged in family violence, or whether he had achieved rehabilitation, in respect of family violence, at the time of the decision.

80    Had the Tribunal turned its mind to the frequency with which Mr Smith had engaged in family violence, it would have noted that Mr Smith had not engaged in any other similar conduct that could be said to constitute family violence. That would plainly have been a relevant consideration in assessing the seriousness of the damage property offence, that being the one incident that the Tribunal had found constituted family violence. The Tribunal was, in any event, required by cl 8.2(3)(a) of the Direction to have regard to the infrequency of Mr Smith’s behaviour in that respect.

81    The Minister submitted that the Tribunal’s reference to the AVO offence amounted a consideration by the Tribunal of the frequency of Mr Smith’s conduct involving family violence. There is no merit in that submission. While the Tribunal did note that the offence committed by Mr Smith involving the breach of an AVO “may” have constituted family violence (R[102], [137]), it is difficult to see how that offence could possibly be said to fall within the definition of family violence given the facts of that offence and the absence of any finding, or any possible finding, that it involved any violent or threatening behaviour, let alone any behaviour that had the effect of coercing, controlling or causing fear. There would, in those circumstances, have been no basis for a finding that Mr Smith had frequently engaged in family violence.

82    The Tribunal also failed to have regard to the extent to which it could be said that Mr Smith had achieved rehabilitation in respect of family violence. The Tribunal did consider the likelihood of Mr Smith engaging in further criminal or serious conduct, including steps he had taken to rehabilitate, in considering the primary consideration of the protection of the Australian community (R[117]-[134]). It did not, however, give any separate consideration to rehabilitation in respect of family violence specifically.

83    It follows that Mr Smith’s contention that the Tribunal misunderstood and failed to follow and properly apply cl 8.2(2) and (3) of the Direction in assessing the seriousness of the family violence said to have been engaged in by Mr Smith.

MATERIALITY

84    To succeed in establishing that the Tribunal’s failure to properly follow and apply the Direction constituted jurisdictional error such as to found the relief he sought, Mr Smith was required to demonstrate that the Tribunal’s errors were material errors. Mr Smith contended that the errors were material because the errors influenced and infected the Tribunal’s reasoning and findings concerning family violence. Those findings were in turn highly relevant to the Tribunal’s evaluation and findings concerning two primary considerations in the Direction: protection of the Australian community and family violence. In those circumstances, it may readily be concluded that there was a realistic possibility that the Tribunal’s decision could have been different had the Tribunal not erred and had instead understood and properly followed and applied the Direction: cf LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14].

85    The Minister conceded that if, the Tribunal erred in the way referred to in Mr Smith’s second particular (failure to properly consider the nature and seriousness of Mr Smith’s offending conduct), that could be said to be a material error. The Minister maintained, however, that the other particularised errors, if made, could not be said to be material errors. In respect of the error referred to in Mr Smith’s first particular, concerning the Tribunal’s misunderstanding and misapplication of the definition of family violence in cl 4 of the Direction, the Minister submitted that the damage property offence plainly met the definition of family violence in cl 4 of the Direction and therefore the Tribunal’s misunderstanding and error in applying the definition was immaterial. In respect of the error reflected in Mr Smith’s third particular, the Minister submitted that if the Tribunal had considered the factors specified in cl 8.3(3) of the Direction in considering the seriousness of the family violence committed by Mr Smith, the Tribunal’s assessment of the seriousness of Mr Smith’s conduct could only have made matters worse for Mr Smith.

86    There is no merit in the Minister’s submissions concerning the materiality of the Tribunal’s errors. The facts of the damage property offence were set out in the police Facts Sheet. There was no other evidence concerning the damage property offence. The Facts Sheet did not include any fact from which it could be inferred that Mr Smith’s conduct had the effect of coercing, controlling or causing his former partner to be fearful. There is, therefore, no sound basis for the Minister’s submission that the damage property offence met the definition of family violence and that the Tribunal’s misconstruction of the definition of family violence in cl 4 of the Direction was therefore immaterial.

87    As for the Tribunal’s failure to properly address the seriousness of the conduct that was said to be family violence, had the Tribunal turned its attention to the fact that the incident which it had found to constitute family violence was an isolated incident of family violence, that could only have tempered the Tribunal’s findings concerning the seriousness of that conduct.

88    The Tribunal’s finding that the damage property offence committed by Mr Smith involved family violence and was therefore serious, or very serious, offending conduct, was plainly material to the Tribunal’s ultimate finding that there was not another reason to revoke the cancellation of Mr Smith’s visa. Those findings fed into the Tribunal’s findings concerning the primary considerations of protection of the Australian community and family violence. The Tribunal found that those considerations weighed heavily against the revocation of the cancellation of Mr Smith’s visa.

89    The Tribunal’s errors were material errors. Had they not been made, there was a realistic possibility that the Tribunal’s decision could have been different.

CONCLUSION AND DISPOSITION

90    The Tribunal erred in a jurisdictional sense in deciding Mr Smith’s review application. It misunderstood, and as a result failed to properly follow and apply, key provisions in the applicable Ministerial direction it was required to follow. Specifically, it misunderstood the definition of family violence in the Direction, which in turn led it to erroneously conclude that one of the offences committed by Mr Smith necessarily constituted or involved family violence. It also failed to properly consider the nature and seriousness of the conduct which it had found constituted family violence as required by the Direction. Those errors were material to the Tribunal’s decision. The Tribunal’s decision must accordingly be set aside and Mr Smith’s application for review of the decision of the Minister’s delegate made on 12 August 2025 should be remitted to the Tribunal, differently constituted, for determination according to law. The Minister, as the unsuccessful party, should pay Mr Smith’s costs of the application.

Associate:

Dated:    15 October 2026