Federal Court of Australia

Roseingrave v Minister for Immigration and Citizenship [2026] FCA 1602

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue, quashing the decision of the second respondent dated 20 October 2025.

2.    A writ of mandamus issue to the second respondent, requiring it (differently constituted) to determine the applicant’s application for review of the decision of the delegate of the first respondent dated 24 July 2025 according to law.

3.    The first respondent pay the applicant’s costs of the proceeding, to be agreed or taxed.

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

REASONS FOR JUDGMENT

MCDONALD J:

Introduction

1    The applicant, Nick Roseingrave, was born in Papua New Guinea. He immigrated to New Zealand at the age of 12, where he was sent to live with his grandparents. He became a citizen of New Zealand and served in the Royal New Zealand Navy. He is no longer a citizen of Papua New Guinea. Mr Roseingrave first arrived in Australia in 2011, at the age of 20. He moved to Germany in 2015 before returning to Australia in 2017. His most recent visa was a Class TY (Subclass 444) Special Category (Temporary) visa (visa), which was granted on 29 August 2023.

2    Mr Roseingrave met his wife, who is a citizen of Papua New Guinea, in 2015 or 2016. They commenced a relationship in 2017 and were married in 2024. They have a son together who was born in 2023. The family lived in Mt Isa, Queensland. In November 2024, Mr Roseingrave’s wife was forced to leave Australia because her work visa had expired. Since then, Mr Roseingrave’s wife and son have been living in Papua New Guinea. According to Mr Roseingrave, his wife hopes to return to Australia and intends to apply for a student or working visa to enable her to do so.

3    Mr Roseingrave has a history of convictions for relatively minor offences, including drink driving, wilful damage to property and public nuisance. On 8 August 2024, he pleaded guilty to and was convicted of much more serious offences, described as “assaults occasioning bodily harm in public place while adversely affected by intoxicating substance”, “dangerous operation of a vehicle and adversely affected by intoxicating substance”, and “wilful damage”. For those offences, he was sentenced to a term of imprisonment of 18 months, and other sentences of imprisonment to be served concurrently with that sentence. Mr Roseingrave was immediately granted parole. However, on 31 October 2024, he committed three further offences: driving under the influence, driving without a driver’s licence, and driving a motor vehicle that was not fitted with a prescribed alcohol interlock device (contrary to a condition that applied to him). As a consequence, he was required to serve, in a custodial institution, part of the term of imprisonment that had been imposed on him on 8 August 2024.

4    On 26 February 2025, a delegate of the first respondent (Minister) cancelled Mr Roseingrave’s visa in accordance with s 501(3A) of the Migration Act 1958 (Cth), on the basis that Mr Roseingrave had a substantial criminal record because he was serving a term of imprisonment of 12 months or more for an offence against the law of Queensland (cancellation decision).

5    On 4 March 2025, Mr Roseingrave requested that the cancellation decision be revoked and made representations in support of that request. On 24 July 2025, a delegate of the Minister decided not to revoke the cancellation decision. Mr Roseingrave applied to the Administrative Review Tribunal (Tribunal) for review of the delegate’s decision. On 20 October 2025, the Tribunal affirmed the decision of the delegate not to revoke the cancellation decision and later, on 3 November 2025, provided written reasons for that decision.

6    Mr Roseingrave now seeks judicial review of the decision of the Tribunal. For the reasons that follow, I have concluded that grounds 1 and 2 of the application for judicial review should be upheld.

Relevant legal principles

7    The most relevant provisions of the Migration Act are as follows. Section 501(3A) relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied (a) that the person does not pass the character test because they have a substantial criminal record on the basis that they have been sentenced to a term of imprisonment of 12 months or more, and (b) that they are 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    Section 501CA(3) provides that, as soon as practicable after the making of a decision to cancel a person’s visa under s 501(3A), the Minister must give the person notice of the decision and particulars of relevant information about the decision, and invite the person to make representations about the revocation of the decision. By s 501CA(4), the Minister is empowered to revoke a decision to cancel a person’s visa under s 501(3A), if the person makes representations in accordance with the invitation, and the Minister is satisfied either that the person passes the character test, or that “there is another reason why the original decision should be revoked”. A decision made by a delegate of the Minister under s 501CA(4) is reviewable by the Tribunal pursuant to s 500(1)(ba) of the Migration Act.

9    Section 499(2A) of the Migration Act requires the Tribunal to comply with directions given by the Minister under s 499(1). The relevant direction with which the Tribunal was required to comply in this case was “Direction no 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 110). A failure of the Tribunal to comply with Direction 110, insofar as it had application to the circumstances before the Tribunal, would amount to jurisdictional error: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at 333 [31].

10    Most relevantly to the issues raised by Mr Roseingrave’s application for judicial review, cl 8.3 of Direction 110 requires decision-makers, when considering whether to revoke a decision to cancel a visa, to have regard to the strength, nature and duration of the non-citizen’s “ties to Australia”. Clause 8.3 states:

8.3. The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

11    Also relevant to Mr Roseingrave’s first ground of judicial review is cl 8.4 of Direction 110, which states:

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

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

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

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

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

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

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

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

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

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

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

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

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

12    The principles that are generally applicable to the Tribunal’s assessment of the representations advanced by a person applying for revocation of a visa cancellation decision were summarised by Kiefel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed) in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at 598-9 [22]-[25] as follows:

Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision‑maker to revoke a decision to cancel a visa held by a non‑citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision‑maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

… The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

(Emphasis added; footnotes omitted.)

13    Their Honours added (at 600 [27]) that:

None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker’s reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

(Emphasis added; footnotes omitted.)

14    In the same case, Edelman J (in dissent in the result), using language drawn from previous decisions of the Federal Court, described an applicant for revocation of a visa cancellation decision as being entitled to a reasonable consideration “of [their] representations as a whole” (at 608 [50], 615 [71]-[72], 616 [75], 617 [78]).

15    In BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2025) 307 FCR 150; [2025] FCAFC 14, Rangiah and Rofe JJ discussed earlier authorities which establish that the considerations which directions made by the Minister under s 499(1) of the Migration Act required decision-makers to consider are not exhaustive. Their Honours explained (at 166 [87]):

When making a decision under s 501CA(4) of the [Migration Act], the decision-maker is required, by force of s 499(2A), to comply with a Ministerial direction made under s 499(1). However, that requirement must be understood against the “wide discretionary power” conferred upon a decision-maker to revoke a decision to cancel a visa if satisfied that there is “another reason” why that decision should be revoked: see Plaintiff M1/2021 at [22]. In Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], the Full Court observed that a Ministerial direction under s 499(1) of the [Migration Act] is, “not an exhaustive universe”. In Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 …, the Full Court held at [93] that a Ministerial direction cannot validly operate to fetter the discretion conferred under s 501CA(4).

16    In the context of a review by the Tribunal of the decision of a delegate made under s 501CA(4) of the Migration Act, the relevant “representations” of the former visa holder should be understood as encompassing the contentions and submissions advanced before the Tribunal: see Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 335 at [49]-[50].

The decision and reasons of the Tribunal

17    Before the Tribunal, it was accepted by Mr Roseingrave that he did not pass the character test. The issue for the determination of the Tribunal was, therefore, whether there was “another reason” why the cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Migration Act. The Tribunal considered that issue by reference to Direction 110.

18    First, the Tribunal addressed each of the primary considerations listed in cl 8 of Direction 110. In respect of the protection of the Australian community, the Tribunal took into account (a) the nature and seriousness of Mr Roseingrave’s criminal offending and other conduct (at [50]-[94]), and (b) the risk to the Australian community should Mr Roseingrave commit further offences or engage in other serious conduct (at [95]-[119]). The Tribunal set out a history of Mr Roseingrave’s alcohol abuse and criminal offending, and concluded that his offending conduct was “very serious” and weighed heavily against revoking the cancellation decision. The Tribunal assessed the nature of the likely harm should Mr Roseingrave commit further offences or engage in other serious conduct, and the likelihood of Mr Roseingrave’s engaging in such conduct. It found that there was a “high risk” that Mr Roseingrave would “reoffend in a similar manner”, and that that risk was “unacceptable in circumstances where the harm to the community presented by the types of offending or other serious conduct [Mr Roseingrave] has engaged in is significant”. The Tribunal concluded that the protection of the Australian community from criminal or other serious conduct weighed very heavily against revocation of the cancellation decision.

19    The Tribunal noted (at [121]) that there was no evidence before it to suggest that Mr Roseingrave had engaged in family violence.

20    After setting out the evidence and submissions relevant to the strength, nature and duration of Mr Roseingrave’s ties to Australia, the Tribunal set out (at [138]) eight reasons why it considered those ties to weigh “slightly in favour of revocation of the Cancellation Decision”. The reasons most relevant to the issues before this Court on the present application for judicial review are as follows:

…

(e)    [Mr Roseingrave]’s familial ties to Australia are limited to his brother in WA, his nephews he has not seen since 2022, a niece he is yet to meet in person and a number of aunts, uncles and cousins who might be emotionally impacted by his removal.

…

(g)    [Mr Roseingrave]’s claims that his wife intends to return to Australia in 2026 are not supported by any objective evidence or corroborating statements. The Tribunal therefore cannot regard [Mr Roseingrave]’s wife as a strong tie, noting in any event her current departure from Australia.

…

21    On the topic of the best interests of minor children in Australia affected by the cancellation decision, the Tribunal referred (at [141]-[145]) to Mr Roseingrave’s son, who was born in 2023, and his two nephews and niece, who were 16, 11 and four years old, respectively, at the time of the Tribunal’s decision. The Tribunal’s treatment of the issue of the best interests of minor children in Australia is seen from the following passages of its reasons:

[143] While [Mr Roseingrave] has a minor son, he is not a parent to any minor age child in Australia. In relation to [Mr Roseingrave]’s minor age nephews in WA, the Tribunal has no evidence regarding their own views (or the views of their father, [Mr Roseingrave]’s brother) or that his relationship with them is parental in any respect. The Tribunal also has no details regarding the specific nature and quality of their relationship or how in particular they would be adversely affected if he were removed. This is even more so in the case of [Mr Roseingrave]’s niece in WA, in circumstances where they are yet to meet in person.

[144] [Mr Roseingrave] presently maintains his relationship with his minor age nephews and niece via electronic means, which would be able to continue if [Mr Roseingrave] were removed. The Tribunal understands that [Mr Roseingrave]’s brother and his wife play the parental role in their children’s lives.

[145] Having considered the available evidence against the relevant factors in paragraph 8.4(4) of [Direction 110] (to the extent possible, given this evidence is extremely limited in nature), the Tribunal finds that the best interests of minor children consideration weighs very slightly in favour of revocation.

(Emphasis in original.)

22    The last of the primary considerations considered by the Tribunal (at [146]-[157]) was the expectations of the Australian community. The Tribunal found that, given that Mr Roseingrave had committed “serious crimes” as that term is used in cl 8.5 of Direction 110 (including crimes that raise serious character concerns), the cancellation of his visa would align with the expectations of the Australian community.

23    Lastly, the Tribunal turned to the other considerations listed in cl 9 of Direction 110, finding that:

(a)    there was no evidence to suggest that Australia’s non-refoulement obligations were enlivened in the circumstances of Mr Roseingrave’s case, and the legal consequences of a decision not to revoke the cancellation decision were intended consequences of the operation of s 501 of the Migration Act and should be afforded neutral weight (at [161]-[163]);

(b)    the consideration of the extent of impediments if Mr Roseingrave were removed from Australia weighed slightly in favour of revocation of the cancellation decision (at [175]); and

(c)    there was no suggestion that the removal of Mr Roseingrave from Australia would adversely impact Australia’s business interests, other than an assertion that Australian companies had invested in his education and training, and that consideration should be afforded neutral weight (at [177]-[179]).

24    Having weighed the primary and other considerations against each other, the Tribunal concluded that it was not satisfied that there was “another reason” why the cancellation decision should be revoked, and it affirmed the decision of the delegate not to revoke the cancellation decision.

The application for judicial review

25    Mr Roseingrave relies on three grounds of judicial review, which are set out with particulars in his amended originating application for judicial review, as follows:

1.    The [Tribunal] fell into jurisdictional error by failing to properly engage with [Mr Roseingrave’s] representations or claims as to the best interests of his minor son and the impact of the decision on [Mr Roseingrave’s] minor son. In doing so, the [Tribunal] also misconstrued or misunderstood paragraph 8.4 of Direction no 110.

Particulars

a.    [Mr Roseingrave] had made claims or representations regarding the best interests of his son and the impact of the decision on his son.

b.    The [Tribunal] did not state conclusions about such claims or representations and apparently disregarded them because [Mr Roseingrave’s] son was not “in Australia”, then only gave the best interests of minor children very slight weight in favour of revocation.

2.    The [Tribunal] fell into jurisdictional error by failing to properly engage with [Mr Roseingrave’s] representations or claims as to the impact the decision would have on his wife.

Particulars

a.    [Mr Roseingrave] had made claims or representations regarding the impact of the decision on his wife.

b.    The [Tribunal] only concluded [sic] in respect of [Mr Roseingrave’s] wife in the context of ties to Australia and noted she was not in Australia.

3.    The [Tribunal] fell into jurisdictional error by failing to properly engage with [Mr Roseingrave’s] ties to the people of Torres Strait (Saibai Island).

Particulars

a.    [Mr Roseingrave] referred to his ties to the people of Torres Strait (Saibai Island).

b.    There was no mention of ties to the people of the Torres Strait in the [Tribunal’s] reasons or any indication that this was considered.

(Court book and transcript references omitted.)

26    A fourth ground set out in the amended originating application for judicial review is not pressed, and it is unnecessary to address it.

Grounds 1 and 2 – failure to engage adequately with representations concerning the impact of non-revocation of the cancellation decision on Mr Roseingrave’s wife and son

27    The first two grounds of judicial review, regarding the Tribunal’s treatment of Mr Roseingrave’s representations about the impact of the cancellation of his visa on his wife and son, raise similar considerations. Mr Roseingrave’s submissions addressed these two grounds concurrently and it is convenient to consider them together.

28    Mr Roseingrave relies on the following representations in respect of his wife and son, which were made by him in connection with his request for revocation of the visa cancellation decision and his application for review by the Tribunal.

29    First, in the personal circumstances form which he completed in support of his request for revocation of the cancellation decision, Mr Roseingrave identified his wife and her circumstances in the “Your spouse/partner details” and “Other relationship information” sections, and his son in the “Minor children” section. Mr Roseingrave’s wife was identified as “in Papua New Guinea at the moment” and his son’s address was identified as an address in Port Moresby. In the part of the form where Mr Roseingrave was asked to describe his relationship with his son, he wrote:

I talk to him on video call [every] day, and I was arranging for him and his cousins and my family to come to Australia to go to the fun parks in Gold Coast before I was arrested.

Once [I’m released] to the community, I will try [to] get my own address if approved by [Parole] Board, [then] they can come visit during study breaks. Or my partner might come study here in Australia.

(Capitalisation changed.)

30    When asked to describe the current impact, or likely impact of a non-revocation decision on his son, Mr Roseingrave wrote (among other things):

… As a negative outcome will mean that I would start all over again in New Zealand. I [specialise in] underground mining (explosive) so it will be hard to get a job, will need to train [myself], which will put me in a huge [financial] strain which [I’m] already in since [I’m] in prison and won’t be able to provide for my child and wife.

(Capitalisation changed.)

31    Secondly, in a written statement made by Mr Roseingrave on 30 August 2025 in support of his application for review before the Tribunal, he wrote, relevantly:

…

29.    I propose to live with my wife and son in Brisbane, Queensland when they arrive here. This familial setting will give me stability and emotional support.

…

32.    I do not have substantial family or community support in New Zealand. My immediate family has all relocated to Australia and Papua New Guinea. Securing stable housing or employment there would be daunting, particularly after years away.

33.    My rehabilitation has been nurtured in Australia, with access to consistent therapy and familial support.

34.    If I am removed, my child [faces] ongoing separation from his father during vital developmental years.

…

32.    Should I remain here, I have every intention of continuing therapy (AA),
[sic]    avoiding negative influences, and becoming a productive member of the
    community while caring for my child.

32    Thirdly, in his statement of facts, issues and contention dated 9 September 2025, filed in the Tribunal, Mr Roseingrave stated:

•    Family Ties: … My wife and my child are currently in Papua New Guinea. They will be coming to Australia (Brisbane) next year and my wife will be working and studying (masters) here. They rely on my emotional, financial, and parental support. My removal would have a devastating impact on them and disrupt my son’s upbringing and well being.

•    …

•    Mental Health and Well-being: The threat of removal has already caused significant emotional and mental distress. Not knowing that I will be able to provide for my young family, being there for my son as he’s growing up and providing the things he’s [sic] needs. As it is in Papua New Guinean culture, the Husband is the head of the family, and it is his responsibility to provide what is needed for the family. I am mentally distress [sic] because If I can’t do that, I am not fulfilling my role as a Husband, father and uncle.

33    Although these contentions were said to be in response to the Minister’s contentions relating to “ties to the Australian community”, they clearly address the situation of Mr Roseingrave’s family and, in particular, the impact of being excluded from Australia and separated from his wife and son on his relationship with them.

34    Fourthly, in the course of the hearing before the Tribunal on 30 September 2025, Mr Roseingrave was asked questions by the Tribunal and the Minister’s representative about his family situation and his wife’s plans to study in Australia, to which he provided answers.

35    Finally, in the course of his oral closing submissions at the hearing before the Tribunal on 1 October 2025, Mr Roseingrave submitted:

As for my family ties, my family’s future ends in the balance of my past actions. My child does not deserve a life of suffering and trauma, from his father not being there. If there is any chance of getting my visa back, I wouldn’t put my family through this situation again, as I realise the purpose and worth, and the seriousness of the nature of my convictions. I would like to see my son, nephews, and niece grow up to be – grow up to be whatever they want to be and be able to mentor and guide them through their journey in life.

As stated by the respondent that I’ll be living in Queensland, video calls, and will be making Christmas visits to and from WA, or Queensland, for them to come visit or for us to come over here and visit them. Since my son was born in Australia, I would like for him to grow up here, where there is a better early childhood education system that is not, and help service, which is not available in Papua New Guinea, where he’ll most likely be growing up if I’m not here. And there’s a better way of life here in Australia. I do see future hardship that could arise from my deportation.

Life is family and family is life. If you take one away from each other, there will be emptiness. I would like to emphasise that I left a very good career in the Royal New Zealand Navy, to move to Australia as soon as I found out that my brother had moved to Perth, from Papua New Guinea. And that’s how my family means to me. …

(Emphasis added.)

36    Although Mr Roseingrave claims that his wife was planning to move to and study in Queensland (or possibly New South Wales) in the near future, and that he planned to live with his wife and son in Australia, his claims about the effect of his exclusion from Australia on his wife and son were not wholly dependent on acceptance of those propositions.

37    The submissions that Mr Roseingrave advanced included claims about the prospective impact of his removal to New Zealand on the family unit comprising his wife and son. They included claims about the adverse financial impact on his wife and son, the cultural significance of his inability to provide for his wife and son, the comparative disadvantage to his son of growing up in Papua New Guinea rather than Australia, and the likely adverse impact on his son, specifically, if they were not able to live together as a family unit. So, while it may be accepted that it was open to the Tribunal to proceed on the basis that Mr Roseingrave had not adduced evidence sufficient to satisfy the Tribunal that his wife (with their son) would in fact be returning to study and live in Australia in the near future, that conclusion did not address the substance of all the matters he had advanced as substantial reasons in favour of the revocation of the cancellation decision.

38    The reasoning of the Tribunal, the most relevant parts of which are set out at [20]-[21] above, proceeded on the basis that, once it found that Mr Roseingrave’s son was not in Australia at the time of the Tribunal’s decision, it was not required to consider his best interests as part of its decision-making process. That is apparent from the Tribunal’s reasons. My conclusion that that is the basis on which the Tribunal proceeded is also reinforced by the fact that for the Tribunal to approach the matter in that way was generally consistent with the Minister’s contentions before the Tribunal, which included the following:

Primary Consideration 3 – Ties to Australia

…

Immediate family

…

66.    However, his ties in Australia are quite limited. [Mr Roseingrave’s] wife and his two-year-old son, a Papua New Guinean citizen, live in PNG. [Mr Roseingrave] states in his application for review that his wife and son will soon be returning to Australia (to QLD). His wife will be working in Brisbane and continuing her study of a Masters degree.

67.    Although [Mr Roseingrave] claims his wife is planning on returning to Australia, there is no evidence that there are any firm plans for her to do so, other than his assertion. …

…

Primary Consideration 4 – Best Interests of the Child

…

73.    [Mr Roseingrave] is not a parent to any child in Australia. The best interests to be considered are to those [sic] of his nephews, aged 10 and 16. …

(Citation omitted.)

39    The Minister’s statement of facts, issues and contentions did not otherwise address Mr Roseingrave’s contentions about the impact on his wife or son.

40    The Tribunal seems to have limited its consideration of the claims made in relation to the impact on Mr Roseingrave’s son by reference to the words of Direction 110 relating to the “best interests of minor children in Australia”. It is true that the “primary consideration” set out in cl 8.4 of Direction 110 is limited to the interests of minor children in Australia. It follows that Direction 110 did not require the Tribunal to have regard to the best interests of Mr Roseingrave’s son as a primary consideration. Similarly, the Tribunal’s finding that it was not satisfied that Mr Roseingrave’s wife would be living in Australia to study meant that it was open to the Tribunal to conclude that the impact on their relationship of his removal to New Zealand was not a matter falling within the “ties to Australia” consideration.

41    The correct identification of the limits of the primary considerations referred to in Direction 110 did not relieve the Tribunal of its obligation to identify, understand and evaluate the representations made by Mr Roseingrave. In taking the approach that it did, the Tribunal effectively prevented itself from considering a potentially significant aspect of the representations advanced by Mr Roseingrave in relation to the impact of its decision on the interests of his son.

42    In the context of the submissions advanced by Mr Roseingrave (considered as a whole), the failure of the Tribunal to address the claims that he had advanced in relation to the impact of non-revocation of the cancellation decision on his wife and son – apart from by finding that they were not in Australia and that the evidence did not establish that they would be in Australia – was a failure to respond to a significant aspect of the substance of the representations made to the Minister and the Tribunal. I do not mean by this to suggest that the Tribunal was required to attribute “weight or persuasive quality” to the arguments advanced by Mr Roseingrave; after considering and “sifting” the representations, it might ultimately have decided not to, for reasons which it might have explained.

43    I am conscious that the authorities establish that the obligation of the Tribunal is to consider the representations and the arguments advanced, but that that does not mean that each particular matter advanced by an applicant for revocation of a visa cancellation decision itself is a mandatory relevant consideration: Plaintiff M1 at 598 [23]. The Tribunal evidently knew that representations and arguments had been made concerning Mr Roseingrave’s wife and son, but it did not evaluate the substance of those representations because it found that they did not have the particular connections to Australia contemplated by cll 8.3 and 8.4 of Direction 110. It seems to me that it is probably right to characterise this as ignoring a substantial and clearly articulated aspect of the case advanced by Mr Roseingrave.

44    In any event, having regard to the Tribunal’s reasons in the context of the submissions advanced to it by Mr Roseingrave and the Minister, I am satisfied, on the balance of probabilities, that the reason why the Tribunal did not consider and respond to Mr Roseingrave’s representations regarding the impact of non-revocation of the cancellation decision on his wife and son was because it misunderstood the effect of Direction 110. That is, the Tribunal interpreted the matters which Direction 110 required it to consider as exhaustive, in the sense that the Direction was understood as excluding consideration of, or as meaning that the Tribunal need not evaluate, broader claims relating to the impact on Mr Roseingrave’s wife and son which did not fall within the considerations set out in cll 8.3 and 8.4 of Direction 110.

45    That conclusion is supported most strongly by the fact that the Tribunal, having identified (at [143]) that Mr Roseingrave’s son was not “in Australia”, said nothing at all about his interests or the impact of the cancellation of Mr Roseingrave’s visa on him. It is also supported by the fact that the Tribunal, having noted (at [138(g)]) that Mr Roseingrave’s wife was not presently in Australia and thus did not provide a “strong tie” to Australia, said nothing at all regarding the substance of Mr Roseingrave’s submissions with respect to the impact on his wife and family. These aspects of the Tribunal’s reasons demonstrate that the fact that Mr Roseingrave’s submissions about his wife and child did not fall within cll 8.3 and 8.4 of Direction 110 was treated as conclusive of their potential relevance to the Tribunal’s decision.

46    This misunderstanding of the scope of the Tribunal’s power was material to its decision. It caused the Tribunal to regard the representations more narrowly than it might otherwise have done. Insofar as the Tribunal did not accept that Mr Roseingrave’s wife and son would return to Australia, the material before the Tribunal suggested that they would be in Papua New Guinea (a country of which Mr Roseingrave is not a citizen) and not New Zealand (the country to which he was likely to be removed). Had the Tribunal considered the representations advanced by Mr Roseingrave in relation to the impact on the best interests of his son, in particular, it might well have attributed some weight to that factor. In that case, its decision could realistically have been different: cf LPDT at 325-9 [2]-[16], 334 [32]. The Tribunal’s misunderstanding of Direction 110 thus amounted to jurisdictional error.

47    For these reasons, grounds 1 and 2 of the application for judicial review should be upheld.

Ground 3 – failure to engage with Mr Roseingrave’s asserted ties to the people of the Torres Strait

48    In connection with the lodgement of his application for review by the Tribunal, Mr Roseingrave completed an online form. Among other things, he was invited to answer the question, “Why do you claim the decision is wrong?” In the box provided for a response to that question, Mr Roseingrave identified various pieces of information which he had provided and which he believed “may not have been fully considered” by the delegate. He then wrote:

Last but not the list [sic], i have found out recently that i have ties to the people of Torres Strait (Saibai island) and am researching what i need to put forward to the Home affairs as proof. (Eg DNA test or Elders information provided[)].

49    I note that, in the same form, in answer to the question “Are you of Aboriginal or Torres Strait Islander origin?”, Mr Roseingrave answered “No”. Mr Roseingrave had also answered “No” to the question of whether he “identif[ied] as Aboriginal or Torres Strait Islander” in the personal circumstances form which he submitted in support of his application for revocation of the cancellation decision. These are the only documents in the material before the Tribunal which make any reference to the Torres Strait (or to Saibai Island).

50    Mr Roseingrave relies on the decision in Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436 (Brownlie) in support of his contention that the Tribunal was obliged to consider his “ties” to the people of the Torres Strait as part of its consideration of ties to the Australian Community. In Brownlie, the applicant had not identified his ties with the Australian Aboriginal community as a connection that he relied upon. However, Feutrill J held that the applicant’s identity as an Aboriginal Australian and his connection with the Australian Aboriginal community were clear to any reader of the materials before the Tribunal in that case. These included “repeated references to the applicant identifying as an Aboriginal person” and numerous other references to the applicant being an Aboriginal person, such that (as Feutrill J found at [97]) “the number and frequency of references to the applicant as an Aboriginal person could not have been ignored if the Tribunal had read and understood the evidence that was before it on review”.

51    After referring to various kinds of evidence before the Tribunal which demonstrated that the applicant’s connection with the Aboriginal community was “manifest from the materials before the Tribunal”, Feutrill J said (at [102]):

… These matters taken together obliged the Tribunal to consider the strength, duration and nature of the applicant’s social links with the Australian Aboriginal community. Limited though the evidence of that connection may have been, it was a mandatory relevant consideration that arose from the evidence before the Tribunal and it was not considered at all in the Tribunal’s reasons.

52    In this case, it is not a matter of whether a particular kind of “tie[] to the Australian community” emerged from a consideration of the evidential material before the Tribunal. The issue is rather whether an express reference by Mr Roseingrave to “ties” in the online form had the consequence of obliging the Tribunal to consider that matter.

53    Beyond the bare assertion in the online form he completed, Mr Roseingrave did not provide any evidence of “ties” to the people of the Torres Strait; nor did he claim to possess any such evidence. While he did not explain the nature of the ties to which he referred, it may be inferred, particularly from his reference to a “DNA test”, that he believed that he was, or may be, descended from people from the Torres Strait. He had repeatedly indicated that he did not identify as a Torres Strait Islander, and (unlike in Brownlie) there was nothing in the material before the Tribunal which suggested that he did. In the course of Mr Roseingrave’s evidence before the Tribunal he described himself as a “First Nations person from Papua New Guinea”. That is, of course, not inconsistent with Mr Roseingrave’s also identifying as a Torres Strait Islander but, insofar as he described himself as a First Nations person before the Tribunal, he did not do so by reference to Australia or the Torres Strait.

54    It is undoubtedly the case that it is “part of Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour” (cf Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225 at 641 [50] (Allsop CJ)). And familial or social links with a segment of the Australian community, including Indigenous communities, are “ties” of the kind with which cl 8.3 of Direction 110 is concerned. I also accept that a genetic link to the people of the Torres Strait could potentially provide a relevant “tie” to Australia, at least in some cases.

55    However, there was no evidence before the Tribunal which would have allowed it to assess Mr Roseingrave’s claim to have a connection with the Torres Strait, or which would have suggested that that was a claim which he was advancing as part of a “reason” why the cancellation decision should be revoked. Apart from the online form itself, Mr Roseingrave did not mention the newly discovered connection to the Torres Strait at all. His mention of the issue in the form suggested that it was a matter about which he would need to provide further information if it were to be considered. The reference in the form must be considered in a context where Mr Roseingrave later filed a statement of facts, issues and contentions in the Tribunal, but he did not mention ties to the people of the Torres Strait as an issue, and set out no facts or contentions relating to that issue. He did not raise the issue orally in the course of the hearing, despite being given many opportunities to advance any submissions in support of the revocation of the cancellation decision, and being prompted to mention any other matters which he wanted the Tribunal to consider. This may be contrasted with, for example, the many references made to the impact of non-revocation of the cancellation decision on his son (to which reference has been made at [29]-[35] above). Objectively assessed, Mr Roseingrave did not conduct the review on the basis that his connection to the Torres Strait was an issue that he sought to advance as a reason for not revoking the cancellation decision, or which he wanted the Tribunal to take into account.

56    Unlike in Brownlie, the material before the Tribunal did not suggest that Mr Roseingrave had a material or substantial tie to the Australian community through his alleged ties to the people of the Torres Strait. The material revealed nothing about those ties except that Mr Roseingrave had not been aware of an asserted connection until recently.

57    So, while I accept that a clearly articulated statement of a personal, social, spiritual or genetic connection with members of an Indigenous community can support a conclusion that the Tribunal was required to have regard to that matter in its consideration of cl 8.3 of Direction 110, I do not accept that Mr Roseingrave’s single reference in an online form to “ties to the people of [the] Torres Strait (Saibai [I]sland)”, in the particular circumstances of this case, obliged the Tribunal to consider it in order to discharge its function of reviewing the cancellation decision.

58    For these reasons, I do not accept that Mr Roseingrave has established jurisdictional error in connection with his third ground of judicial review.

Conclusion

59    For the reasons given above, the Tribunal’s decision should be quashed, and a writ of mandamus should issue requiring the Tribunal to determine Mr Roseingrave’s application for review according to law. The Minister should pay Mr Roseingrave’s costs of the application for judicial review.

Associate:

Dated:    27 October 2026