Federal Court of Australia

YVXP v Minister for Immigration and Citizenship [2026] FCA 1544

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be granted an extension of time to file his application for judicial review.

2.    A writ of certiorari be issued quashing the decision of the second respondent made on 5 May 2026 affirming the decision of a delegate of the first respondent dated 5 February 2026 to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return Visa.

3.    A writ of mandamus be issued directing the second respondent to re-determine the applicant’s application for the review of the delegate’s decision according to law.

4.    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

DOWNES J:

Background

1    The applicant sought judicial review of the decision of the second respondent (Tribunal) to affirm the decision of the delegate of the first respondent (Minister) to cancel the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth). The applicant also sought an extension of time to commence the proceeding, which was not opposed by the Minister and was granted.

2    The applicant was born in 1982, and is a citizen of Papua New Guinea. He has resided in Australia since he was 14, and has six children with his partner, all of whom reside in Australia. He has engaged in serious offending, which includes instances of family violence, and offences against police officers. This offending caused the Minister to provide to the applicant a Notice of Intention to Consider Cancellation of his Class BB Subclass 155 Five Year Resident Return visa. The applicant provided submissions in response to this Notice. On 5 February 2026, a delegate of the Minister cancelled his visa. The applicant was notified of this on 10 February 2026, and he subsequently applied to the Tribunal for a merits review on 11 February 2026.

3    The Tribunal heard the application on 23 and 24 April 2026. On 5 May 2026, the Tribunal issued its decision affirming the decision of the delegate, and on 25 May 2026, the Tribunal issued its written reasons (TR).

4    Although the applicant’s originating application sets out five grounds of review, the applicant only pressed grounds 1, 2, 3 and 5 at the hearing on 13 October 2026. Orders were made as sought by the applicant at that hearing. These are the reasons for making those orders.

Ground 1

5    The applicant’s first ground of review was that the Tribunal failed to apply Direction No. 110 correctly and thereby failed to comply with s 499 of the Act “by incorporating the statements of principle in clauses 5.2(5), 5.2(6) and 5.2(7) as though they formed part of the consideration under clause 8.5”.

6    In particular, the applicant contended that the Tribunal approached the decision on the basis that the principles set out in cl 5.2 “modify” the expectations of the Australian community.

7    The impugned reasons state as follows:

Are there any factors modifying the Australian community’s expectations?

101. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:

a)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5));

b)     the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5));

c)     Australia may afford a higher level of tolerance towards 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 (paragraph 5.2(6));

d)     the nature of a 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 a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and

e)     the inherent nature of the non-citizen’s conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a noncitizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).

102.    In relation to sub-paragraph (a) of the immediately preceding paragraph [101], the term ‘limited stay visa’ is not defined in the Act. In this case, the Applicant held a Class BB Subclass 155 Five-year Resident Return visa until it was cancelled on 5 February 2026. This visa permits a person to ‘travel’ to and ‘enter’ Australia within a specified period of time once it is granted. It does not specify a period for which the visa holder can remain in Australia once it is granted. As the visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the visa held by the Applicant cannot be classified as a limited stay visa. Therefore, the application of this sub-paragraph (a) is not relevant to this Applicant.

103.     In relation to sub-paragraph (b) of the abovementioned paragraph [101], the Applicant has spent about 30 years in Australia since arriving here aged 14 years. He has spent 70 percent of his life in this country and is currently aged 43 years. He has a solid work history in Australia and has made certain community contributions while here. He has maintained a lengthy relationship with Ms MO in this country and they have produced six biological children here. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.

104.     In relation to sub-paragraph (c) of the abovementioned paragraph of [101], I repeat that the Applicant arrived in Australia as a 14-year-old some 30 years ago. He has spent 70 percent his [sic] life in Australia and I have earlier found 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.

105.     In relation to sub-paragraph (d) of the abovementioned paragraph [101], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his very serious criminal offending of the same type already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature of the Applicant’s offending has constituted offending of such a significantly serious magnitude such as to dispel any applicable countervailing considerations working in his favour.

106.     In relation to sub-paragraph (e) of the abovementioned paragraph [101], I am of the view that the Applicant’s very serious conduct committed in this country is so serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that in terms of the here and now, the Applicant represents a recidivist risk defined earlier in these reasons. I have also found that if he were to re-offend, the resulting harm to the Australian community renders such a risk unacceptable.

Conclusion: Primary Consideration 5

107.     My analysis of the material before the Tribunal has led me to the finding that this Primary Consideration 5 carries a very heavy level of weight in favour of cancellation of the Applicant’s visa.

(Emphasis original, footnotes omitted).

8    The Minister submitted that the Tribunal did properly understand its task, and that this is seen by reading the Tribunal’s reasons as a whole. The Minister submitted that the Tribunal did not expressly conclude that a specific factor modifies the normative expectations in cl 8.5 of the Direction, and instead sought to characterise the reasons as evincing that the Tribunal was assessing: (1) whether the factors were relevant (for example at TR [102]); (2) whether the community’s tolerance was lowered or raised (at TR [103]–[104]); (3) whether the applicant’s offending was so serious as to dispel any applicable countervailing considerations (TR [105]); and (4) that there was an unacceptable risk of harm were the applicant to reoffend (TR [106]).

9    However, in my view, the reasons when read as a whole disclose an obvious error by the Tribunal when it approached its decision on the basis that the principles set out in cl 5.2 “modify” the expectations of the Australian community. As the applicant submitted, the Direction is structured such that there is no occasion for modification to occur. Despite this, it is apparent that the Tribunal made an actual assessment of whether the principles in cl 5.2 raised or lowered the expectations of the Australian community.

10    Further, although TR [107] refers to the weight attributed to Primary Consideration 5, that bare conclusion is not apparent in the process of the Tribunal’s reasoning.

11    The Minister cited Johnson v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1558, in which Markovic J found no error after the Tribunal had used the language of considering whether there were any factors “modifying” the expectations of the community, although this was not the focus of her Honour’s reasoning. Johnson does not assist the Minister, as in the Tribunal’s reasons in that case, the Tribunal did not actually consider whether the norms were modified. That situation can be contrasted with this case, where the reasons disclose that the Tribunal in fact engaged in a consideration of how the norm was modified. As the applicant properly conceded, it is not the mere fact that the Tribunal used the word “modify”; it is the fact that the Tribunal considered how community expectations were modified by reference to the applicant’s conduct.

12    For these reasons, the applicant established error in the Tribunal’s decision.

13    The Minister submitted that even if there was an error in the Tribunal’s approach, that error would not be material in the sense that it could not realistically have resulted in a different outcome. However, following its consideration of cl 8.5, the Tribunal concluded that it would place “a very heavy level of weight” (emphasis original) on the primary consideration. On that basis, had the Tribunal engaged in the decision-making process correctly, the Tribunal could have ascribed different weight to the consideration, such that there is a realistic possibility that the decision could have been different.

14    It follows that ground 1 succeeded.

Ground 2

15    By ground 2, the applicant challenged the decision on the basis that:

In purporting to apply the principle in clause 5.2(6) to the consideration under clause 8.5, the Tribunal erred in its assessment of the evidence and/or misunderstood the operation of that principle.

Particulars

a)    The Tribunal found that clause 5.2(6) did not increase the level of tolerance to be afforded to the Applicant.

b)    Given that the Applicant had spent most of his life in Australia, a proper application of clause 5.2(6) required consideration of whether a greater level of tolerance ought to be afforded to the Applicant.

16    Clause 5.2(6) of the Direction stated that:

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

17    The Tribunal considered cl 5.2(6) at TR [104], stating that:

… the Applicant arrived in Australia as a 14-year-old some 30 years ago. He has spent 70 percent his life in Australia and I have earlier found 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.

18    However, this should also be read with TR [103]:

… the Applicant has spent about 30 years in Australia since arriving here aged 14 years. He has spent 70 percent of his life in this country and is currently aged 43 years. He has a solid work history in Australia and has made certain community contributions while here. He has maintained a lengthy relationship with Ms MO in this country and they have produced six biological children here. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.

(Emphasis original).

19    As the applicant submitted, cl 5.2(6) was engaged and should have worked in his favour, as the Tribunal found that he has spent “70 percent of his life” in Australia and the Tribunal concluded at TR [103] that the applicant’s participation in the community “cannot be safely found to have been ‘short’” (emphasis original). Notwithstanding these findings, the Tribunal concluded at TR [104] that the Australian community’s level of tolerance is not raised, despite the Tribunal having formed the view (in substance) that the applicant has lived in the Australian community for most of his life.

20    The Minister submitted that it was open to the Tribunal to determine that Australia’s tolerance for offending was not raised and that this was squarely within the discretion of the Tribunal. In particular, the Minister pointed to the word “may” within the sub-clause itself. The Minister submitted that the Tribunal considered that, as the applicant did not come to Australia at a very young age, the tolerance should not be raised, and that this was an approach open to the Tribunal in its reasoning.

21    However, as the applicant submitted, although it was open to the Tribunal not to apply the principle, if the Tribunal did seek to apply the principle, as it did in this case, then it must apply the principle correctly. The Tribunal went further than just referring to the tolerance principle or the level of tolerance being raised or lowered under cl 5.2(6), but actually sought to apply it. In doing so, it made a finding that the premise of cl 5.2(6) was triggered, but then reached the opposite conclusion.

22    For these reasons, the applicant established error in the Tribunal’s decision.

23    The Minister again submitted that any error, if found, was not material. However, I disagree for the same reasons as given in relation to ground 1.

24    It follows that ground 2 succeeded.

Ground 3

25    By ground 3, the applicant contended that:

The Tribunal failed to comply with clause 8.4(3) of Direction No. 110.

Particulars

The Tribunal treated the interests of the children affected by the decision as uniform.

Significant evidence was directed to the impact of an unfavourable decision upon each child.

The Tribunal failed to properly consider the circumstances and best interests of each child separately.

26    Clause 8.4 of the Direction relevantly provided that:

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

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

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

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

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

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

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

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

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

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

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

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

27    Although cl 8.4(1) prescribes a binary question of determining which of the two possible outcomes is in the best interests of the affected children, cl 8.4(3) requires a fact-dense evaluative exercise to be undertaken, engaging in an individual consideration of each child if their interests differ. This consideration then informs the binary determination to be made under cl 8.4(1).

28    The Tribunal considered cl 8.4 at TR [87]–[90]:

87.     As best as I understood the material, the relevant minor children comprise:

•    Child K – aged 17 years, turning 18 in July of this year;

•    Child J – aged 16 years, turning 17 in August of this year;

•    Child M – aged 15 years;

•    Child C – aged 10 years;

•    Child Z – aged 4 years; and

•    Child R – aged 1 year, turning 2 in July of this year.

…

88.    The Applicant can clearly demonstrate a loving and durable relationship between him and his children. His past conduct may have resulted in long periods of absence of him from their lives, but this is not to suggest that no relationship at all exists between him and them. Ms MO welcomes and indeed urgently requires him to play a positive parental role in the future lives of the children until they turn 18. Looking at the cumulative periods of time until each of the children turn 18, the Applicant has ample time to do so. Despite his appalling conduct towards her, I am not aware of Ms MO seeking any sort of Court order purporting to exclude the Applicant from any form of parental access or role.

89.     It is safe to find that all of the children have been impacted by the Applicant’s past conduct, particularly those who witnessed his family violence conduct. Were he to recommit such conduct, it is safe to find that the children will again be impacted. He has spent long periods away from the children during his periods of incarceration. Were he to be removed to PNG, it is not unreasonable to suggest that he would be able to maintain contact with them by non-in-person means. It is plain that Ms MO has fulfilled a primary parental role in relation to the children and has done an admirable job in doing so while the Applicant has been physically absent. I have earlier referred to the letters of support from the older children and the hand-drawn / written greetings from the younger ones. That material can only be read in one way. It is safe to find that if the Applicant is permanently removed to PNG, the children will be impacted.

90.     At least some of the children have been exposed to the family violence perpetrated by the Applicant but have not otherwise subjected to any of the other conduct referenced in subparagraphs 8.4(4)(g) and (h). I will find that in the event of the Applicant’s permanent removal to PNG, the impact on his six above mentioned children attracts a heavy level of weight to their best interests being taken into account in favour of the Applicant.

(Footnotes omitted).

29    The evidence showed that each of the children had differing interests, and there were submissions by the applicant about their different interests. In particular:

(a)    the child aged 16 had struggled with his mental health since his father had been incarcerated, and had to change schools as a result, but his mood improved when his father returned home. He had made statements to the effect that he does not know how he would go on without his father: T 97.12–13;

(b)    the child aged 15 responded poorly to the applicant’s incarceration and had left normal schooling to be home schooled as a result, before being able return to mainstream schooling following his father’s release. However, following the cancellation of the applicant’s visa, this child’s behaviour and attitude at school has deteriorated;

(c)    the child aged 10 had witnessed the family violence, but has since reconciled with her father since he had been at home. Upon learning of the visa cancellation, she has become stressed and worried;

(d)    the child aged four witnessed the family violence, but may not have understood it and remains close with her father. At the time of the hearing, she had become withdrawn and was not eating; and

(e)    the two-year-old was too young to properly understand the applicant’s conduct and absence.

30    The Minister submitted that the evidence relied on by the applicant above arose from questioning of the applicant’s partner about how the children feel about him being home and sober. That may be correct; however, it was still evidence before the Tribunal about the differing interests of the children that should have formed part of the decision-making under cl 8.4(3).

31    The Minister also submitted that the closing oral submissions relied upon were brief, and that there was a common theme about the impact of removal that may not have required separate analysis. I disagree. Clause 8.4(3) mandates individual consideration of each of the children’s interests, to the extent that their interests may differ, which did not occur in this case. That is so regardless of whether the overall conclusion is a binary determination as to what is in the best interests of the children. In my view, this is not a case where the interests of the children were sufficiently similar to be considered together.

32    The Minister also pointed to the following aspects of the Tribunal’s reasons to attempt to show that there had been individual consideration of each child, such as:

(1)    the Tribunal was mindful of the letters of support from four of his children and hand-drawn greetings or messages from his younger children: TR [75];

(2)    the Tribunal was mindful that it was required to consider the best interests of each child individually if there was more than one minor child identified: TR [85];

(3)    the Tribunal was mindful that the best interests of “each” child required taking into account the factors set out at cl 8.4(4)(a)–(h) of the Direction: TR [86];

(4)    the Tribunal identified each of the Applicant’s six children, setting out their respective ages: TR [87].

33    The Minister then submitted that cl 8.4(3) only required the Tribunal to consider each child’s interests, not necessarily that this consideration be evidenced in its reasons. The Minister submitted that the Tribunal did not need to refer to each and every item of evidence before it (relying on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]–[47] (French, Sackville and Hely JJ)), and nor did it need to record every aspect of its thought and finding of fact (citing Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 1; [2024] FCAFC 153 at [45] (McDonald J, with whom Derrington and Goodman JJ agreed)).

34    The Minister also cited Tian v Minister for Immigration and Multicultural Affairs [2026] FCA 767 (Needham J) at [30]. However, that decision can be distinguished as the reasons of the Tribunal in that case made references to the evidence concerning a child with different interests throughout the decision. Here, such reasoning is not evident in the Tribunal’s reasons in this case.

35    None of these decisions assist the Minister in this case. Having regard to its reasons as a whole, I do not accept that the Tribunal in fact considered each individual child’s interests in the manner required and as mandated by cll 8.4(3) and 8.4(4). This was an error.

36    Materiality was not argued before me either in written submissions or orally. I consider that, had the Tribunal engaged in the decision-making process correctly, there is a realistic possibility that the decision could have been different.

37    It follows that ground 3 succeeded.

Ground 5

38    Given my conclusions on grounds 1–3, it is not necessary to consider ground 5.

Conclusion

39    For these reasons, the orders sought by the applicant were made, with the matter being remitted to the Tribunal.

Associate:

Dated:    20 October 2026