Ash v Minister for Immigration and Citizenship [2025] FCAFC 174

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344

ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19

Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229

Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582

Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776

Tkatschenko v Minister for Immigration and Multicultural Affairs [2024] FCA 1357

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588

Administrative and Constitutional Law and Human Rights

The Second Respondent filed a submitting notice, save as to costs

1. The name of the Second Respondent is amended to "Administrative Review Tribunal".
2. The Appellant is given leave to rely on the Further Amended Notice of Appeal dated 13 October 2025.
3. The appeal is dismissed with costs, to be assessed in default of agreement.

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

1. This is an appeal from a decision by a judge of this Court: Ash v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 467 (J). The primary judge dismissed an application to review a decision of the Second Respondent (the Tribunal), which affirmed a decision by a delegate of the First Respondent (the Minister) made under s 501CA of the Migration Act 1958 (Cth) not to revoke the cancellation of the Appellant's visa.
2. The Appellant makes two broad arguments:
   • First, the Appellant argues that the Tribunal did not consider in accordance with law certain representations about the Appellant's elder son, when considering the best interests of minor children in Australia, and more generally did not evaluate that mandatory relevant consideration at all. Those arguments should be rejected, essentially for the reasons given by the primary judge.
   • Second, the Appellant seeks leave to raise a new argument that the Tribunal did not properly balance the different considerations when making its decision. The Appellant is given leave, but that argument should be rejected: the Tribunal recognised the need to balance the different considerations; identified the correct statutory question; and explicitly (albeit briefly) weighed the different considerations against each other.
3. The appeal should therefore be dismissed with costs.

1. The Appellant is a citizen of the United Kingdom. He first arrived in Australia in August 2008 representing Great Britain in a sporting competition. The Appellant has lived in Perth since January 2009 (when his mother arrived in Australia).
2. The Appellant is father to two sons who are Australian citizens. His first son, with Ms K, was born in September 2012. His second son, with Ms B, was born in October 2018.
3. In September 2021, the Appellant was sentenced to three years' imprisonment for grievous bodily harm that he had committed in 2019. Shortly afterwards, he was sentenced to eight months' imprisonment for unlawful assault causing bodily harm in circumstances of aggravation against his then partner, Ms M, that he had committed in November 2020.
4. On 8 October 2021, the Appellant's visa was mandatorily cancelled under s 501(3A) of the Act. He sought revocation of that decision on 18 October 2021.
5. On 31 January 2024, a delegate decided under s 501CA of the Act not to revoke the cancellation of the Appellant's visa. After being re-notified of this decision on 6 March 2024, the Appellant applied to the Tribunal for merits review of the non-revocation decision on 7 March 2024.
6. On 24 April 2024, the Tribunal affirmed the non-revocation decision. The Tribunal applied the former Ministerial direction "Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction 99) (Tribunal reasons (AAT) [26]). The relevant parts of the Tribunal's reasons are set out in considering the Appellant's grounds of appeal.
7. On 4 May 2024, the Appellant applied to this Court for judicial review of the Tribunal's decision. He was granted leave to rely on an amended application dated 12 September 2024.
8. On 12 May 2025, the primary judge dismissed the application for judicial review of the Tribunal's decision.
9. On 4 June 2025, the Appellant filed a notice of appeal. He filed an amended notice of appeal on 22 July 2025, and was granted leave at the hearing to rely on a further amended notice of appeal dated 13 October 2025. The grounds of appeal in this latest document are as follows:
   1. The primary judge erred in failing to hold that the decision of the Administrative Appeals Tribunal (Tribunal) was affected by jurisdictional error, because the Tribunal constructively failed to exercise the jurisdiction conferred on it by s 501CA(4) of the Migration Act 1958 (Cth).
      1. The primary judge erred in failing to find that the Tribunal did not identify the substantial and clearly articulated argument about:
         1. how the appellant's eldest son suffered from attention deficit hyperactivity disorder (ADHD);
         2. how the appellant's eldest son had a special bond with the appellant since they both suffered from ADHD; and
         3. how the appellant's eldest son's ADHD contributed to the behavioural difficulties he was experiencing after the appellant's incarceration.
      2. The primary judge erred in failing to find that the Tribunal did not evaluate the substantial and clearly articulated argument specified in (1)(a).
      3. The primary judge erred in failing to find that the Tribunal did not evaluate the mandatory relevant consideration of the best interests of the appellant's two minor children in Australia.
   2. The primary judge erred in failing to hold that the decision of the Tribunal was affected by jurisdictional error, because the Tribunal constructively failed to exercise the jurisdiction conferred on it by s 501CA(4) of the Migration Act by failing to balance properly the relevant considerations in deciding whether to exercise that jurisdiction.
10. The arguments in appeal ground 1 correspond to arguments put below: see J [32] (ground 1 below; appeal ground 1(b)), [33] (ground 2 below; appeal ground 1(a)) and [35] (ground 3 below; appeal ground 1(c)). Proposed appeal ground 2 is a new ground.

Ground 1: Treatment of the best interests of minor children consideration

1. Ground 1 concerns the Tribunal's treatment of the best interests of minor children in Australia consideration.

1. Direction 99 (the applicable Ministerial direction at the time of the Tribunal's decision) set out the primary consideration "Best interests of minor children in Australia affected by the decision" as follows:

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.

Appellant's submissions in Tribunal - best interests of minor children

1. The Appellant was legally represented in the Tribunal. The statement of facts issues and contentions (SFIC) filed on his behalf made submissions about each of the primary considerations and other considerations in Direction 99 in turn. The submissions on "Best Interests of Minor Children in Australia Affected by the Decision" dealt first with the position of his elder son, then the position of his younger son, and then made submissions about how the Tribunal should weigh this consideration.
2. The submissions in the SFIC concerning the Appellant's older son included the following:

(a) An extract from a written statement by the Appellant to the Tribunal, which stated (among other things) that his older son "is an extremely sensitive young boy and he suffers from ADHD and is medicated for it. I am also diagnosed with ADHD so [the older son] has been able to relate to me and I have been a pillar of strength for him"; and that since the Appellant's incarceration the elder son has been misbehaving and playing up in school, which the Appellant strongly believed was from the emotional strain caused by the Appellant being in prison.

(b) A statement that the elder son has been diagnosed with ADHD for which he was medicated, and that the Appellant would provide documents relating to his son's medication once they were available.

(c) A submission that if the cancellation decision was not revoked, then the elder son would not only lose the opportunity to have a meaningful relationship with the Appellant, but also his ability to maintain a relationship with his half brother.

1. In relation to the Appellant's younger son, the SFIC submitted that "[m]any of the submissions made in relation to [the older son] apply equally to his five-year-old brother". The SFIC submitted (among other things) that "13 years have yet to pass before [the younger son] turns 18, and the [Appellant] hopes to continue to be a positive influence and role model in his son's life during that time".
2. The submissions in the SFIC about the best interests of minor children consideration submitted (among other things) that there was a plethora of research that demonstrated the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child. The SFIC submitted that a permanent separation of the Appellant's sons from their father would mean that Australia was acting contrary to its international obligations (under the Convention on the Rights of the Child (CRC)) and in direct opposition to what was in the children's best interests. It was submitted that, "[g]iven the [Appellant]'s low risk of reoffending, his commitment to rehabilitation and his ongoing family support in Australia, the best interests of his Australian citizen children should outweigh all considerations weighing against revocation".

Tribunal's reasoning - best interests of minor children

1. The Tribunal's reasons on the best interests of minor children consideration were as follows. The Tribunal set out para 8.4 of Direction 99 (AAT [123]), then continued:

1. The [Appellant] identifies only two children as being relevant to this consideration, his two sons. 2. The [Appellant]'s SFIC makes the following submissions in relation to his older son:

(a) He is an 11-year-old child currently living with his mother and on occasion with his paternal grandparents. Before the [Appellant] was imprisoned and detained, this child would live with his father and brother during the [Appellant]'s "off swings". This was pursuant to a "verbal agreement" with the child's mother. > > (b) Apart from separation, the [Appellant]'s behaviour has not had a negative impact on either child or any physical or emotional trauma to them. There is no evidence that his sons will be negatively impacted by his presence in Australia. > > (c) It is unlikely that the [Appellant]'s older son would be able to travel to the UK to visit his father. In a note made by him in March 2024, the [Appellant]'s older son said that he and his brother spent time with the Applicant and that he and his brother will miss the [Appellant] "so much". > > (d) The [Appellant]'s parents have both expressed concern about the impact that the [Appellant] being deported would have on the older son. A decision not to revoke the cancellation will deny the [Appellant]'s son the chance of a meaningful relationship with his father. It would also mean that the child would spend less time with his half-brother, the [Appellant]'s younger son. > > (e) Many of the submissions made in relation to the older child apply equally to his five-year-old brother. There is no indication that the younger child has suffered physical or emotional trauma from the [Appellant]'s offending behaviour or drug use, however he stands to be detrimentally affected if his father is unable to remain in Australia. > > (f) Thirteen years have yet to pass before the younger son turns 18, and the [Appellant] hopes to continue to be a positive influence and role model. This child calls the [Appellant] daily. > > (g) Those around the [Appellant] think that it would be in the children's best interests for the [Appellant] to be allowed to remain in Australia. > > (h) There is a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child. The [Appellant] identifies some of that research. > > (i) While technology would allow the [Appellant] to communicate with his sons if they are living in separate countries, it would be no substitution for having no father physically present in their lives. > > (j) The Australian community would expect that the principles of the CRC are upheld, and that the [Appellant]'s sons continue to be provided with a safe and loving environment which will enable him to grow and develop throughout their childhood and into adulthood.

126. The Minister's SFIC made the following observations:

(a) Prior to his incarceration, the [Appellant] had informal access arrangements with the mothers of his children. When the [Appellant] returned from a mining FIFO role the children would be dropped off by their respective mothers at his parents' home. This enabled him to spend time with both children and for the children to spend time with each other as siblings, noting that they do not live together when they are living with their mothers.

(b) The [Appellant] has maintained contact with his sons during imprisonment and whilst in immigration detention. There are reports that the children have struggled emotionally due to the absence from their father and would continue to suffer great emotional and financial hardship if he were removed from Australia.

(c) If the [Appellant] was removed from Australia, his sons would have limited contact with each other as siblings, which would affect their relationship.

(d) The Minister accepts that it is in the best interests of the [Appellant]'s minor children for him to remain in Australia. The Minister accepts this consideration weighs strongly in favour of revocation of the cancellation of the [Appellant]'s visa.

1. The observations of the Minister in his SFIC are well made as is the Minister's acceptance that this primary consideration weighs strongly in support of revocation of the cancellation of the [Appellant]'s visa. I find that this consideration, the best interests of minor children in Australia, weighs heavily in favour of revocation of the cancellation of the [Appellant]'s visa.

1. In the "Weighing Exercise" part of its reasons, the Tribunal reiterated that the best interests of minor children consideration weighed heavily in favour of revocation of the cancellation decision (AAT [159]). However, the Tribunal found that the considerations against revoking the cancellation decision outweighed the considerations favouring revocation of that decision (AAT [162]).

1. Appeal ground 1 contends, in substance, that the Tribunal failed to consider the Appellant's representations on the best interests of minor children in accordance with law. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, a plurality of the High Court (Kiefel CJ, Keane, Gordon and Steward JJ) explained the content of the obligation to consider representations under s 501CA(4) of the Act as follows:
   • A decision-maker must "read, identify, understand and evaluate" the representations. 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 the person: Plaintiff M1 at [24].
   • The requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness, and will vary, among other things, according to the length, clarity and degree of relevance of the representations: Plaintiff M1 at [25].
   • Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised". That is not the correct approach: Plaintiff M1 at [26].
   • However, 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: Plaintiff M1 at [27].
2. In Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55], the Full Court summarised as follows the principles that apply in determining whether a representation or material has been overlooked (citations omitted):

(1) A conclusion that the decision-maker "has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof".

(2) What is required is the reality of consideration by the decision-maker, the Court on judicial review being required to assess, in a qualitative way, whether the decision‑maker has as a matter of substance had regard to the relevant matter.

(3) The onus lies on the appellant to establish on the balance of probabilities that a relevant matter was not considered, taking into account that the reasons of the Tribunal must be read fairly and not in an unduly critical manner.

(4) Even when a matter is a mandatory consideration because of a Ministerial direction, the representations nevertheless remain relevant. The requisite degree of consideration is affected by the centrality, to the issues, of the matter with which it is said the decision-maker did not engage, and the prominence the matter assumed in the representations. It is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. The fundamental question is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error.

(5) Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. For example, there may be material that is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. On the other hand, the inference that a failure to set out reasoning in relation to a matter signifies a failure to consider it should not be drawn too readily where the reasons are otherwise comprehensive and the issue has at least been identified at some point.

Position of older son and his ADHD (ground 1(a)-(b))

1. Appeal ground 1(a)-(b) contends that the Tribunal failed to identify and evaluate the substantial and clearly articulated representations about the Appellant's elder son's ADHD.

1. The matters identified in appeal ground (1)(a)(i) and (ii) (the elder son suffers from ADHD, the Appellant has a special bond with this son because they both have ADHD) were articulated in the Appellant's SFIC in the Tribunal: see [17](a)-(b) above. By contrast, the matter articulated in appeal ground (1)(a)(iii) (that the elder son's ADHD contributed to his behavioural difficulties) was not put in the SFIC (as noted by the primary judge: J [63]): instead, the representation was that the elder son's behavioural difficulties are linked to the Appellant's incarceration: see [17](a) above.
2. However, we would not accept that the claims about the elder son's ADHD were "essential elements" of the case advanced by the Appellant on the best interests of the children, at least not in the sense that this matter was so obviously relevant that it is unthinkable that the Tribunal would not have referred to the elder son's ADHD if the Tribunal had actually considered it: cf Jabari at [55](5). The factors set out in para 8.4 of Direction 99 indicate the relevant level of generality of the findings required. Reading the submissions in the Appellant's SFIC as a whole, the elder son's ADHD is one of several factors relied on (as the Minister put it, part of the factual matrix) to establish the extent to which the Appellant was likely to play a positive parental role in the future, and the likely effect of separation from the Appellant on his sons (Direction 99, para 8.4(4)(b) and (d)). The Minister accepted those matters, albeit in summary form (see AAT [126](a)-(bd)), and the Tribunal in turn accepted the Minister's argument (AAT [127]).

Proper inference is that relevant matters were considered

1. It can be seen that the Tribunal's summary of the parties' arguments in AAT [125]-[126] does not mention the elder son's ADHD. The question then becomes whether it can be inferred that the representation was overlooked. In the circumstances of this case, we agree with the primary judge that the proper inference is not that the representation was overlooked, but rather that the Tribunal considered that this matter did not require specific mention (see J [72]-[73]).
   • Here, the Minister accepted in writing that the best interests of minor children consideration not only weighed in favour of revocation, but weighed strongly in favour (see AAT [126](d)). Given the extent of agreement between the parties, it was not necessary for the Tribunal to elaborate on every reason why this was so. The Tribunal in AAT [127] implicitly accepted the matters set out in its summary of the Minister's submissions at AAT [126] (which in turn accept the substance of the Appellant's submissions: see further below).
   • In these circumstances, the proper inference is that these particular claims are subsumed in findings of greater generality (namely, that the sons "would continue to suffer great emotional and financial hardship if [the Appellant] were removed from Australia": AAT [126](b)): see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (the Court). As explained above, the elder son's ADHD is better seen as one example illustrating the Appellant's broader representation that he had a close and continuing relationship with his sons, rather than a matter that required independent assessment. This inference can be more readily drawn when other parts of the Tribunal's reasons set out the representation (put by the Appellant's mother) that the Appellant is "close to his two children, in particular the older one who has been diagnosed with ADHD" (AAT [118]): Jabari at [55](5). Reading the Tribunal's reasons as a whole, this statement in AAT [118] informs the content of the more general statement in AAT [125](d) that the Appellant's parents have expressed concerns about the impact that the Appellant being deported would have on the older son. Although the Appellant contends that there is a "misalignment" between the statement in AAT [118] and the Appellant's particular claims, at the level of substance the relevant issue was sufficiently identified in the Tribunal's reasons to be satisfied that the Tribunal did not overlook the elder son's ADHD altogether.

Whether Tribunal evaluated best interests consideration (appeal ground 1(c))

1. Appeal ground 1(c) contends that the Tribunal did not "evaluate" the best interests of minor children consideration, because the Tribunal simply accepted the Minister's submissions.
2. This submission seeks to give too much independent force to the statement in Plaintiff M1 that a decision-maker must "read, identify, understand and evaluate" the representations. The High Court warned against using labels like "active intellectual process" to enter upon the merits of an administrative decision: Plaintiff M1 at [26]. That is, approaching the matter on the basis that the Court enquires into the degree or quality of consideration in the reasoning is likely to lead to error in the form of the Court usurping the function of the Minister: ECE21 v Minister for Home Affairs [2023] FCAFC 52; (2023) 297 FCR 422 at [8] (the Court).
3. Here, there was a reality of considering the Appellant's representations about the best interests of the Appellant's minor children. The brevity of the Tribunal's reasons is because the parties accepted the essential point, that this consideration weighed strongly in favour of revocation.
4. The matters raised by the Appellant do not support a contrary view.
5. First, the Appellant contends that a greater level of consideration was required because the Tribunal did not accept the Appellant's ultimate submission that the best interests of minor children consideration outweighed the contrary factors. However, that ultimate submission was premised on there being (among other things) a low risk of the Appellant re-offending: see [19] above. Contrary to that premise, the Tribunal found that the Appellant's risk of reoffending was at the high end of the range of low to moderate (AAT [102]). The Tribunal accepted that the best interests of minor children consideration weighed strongly in favour of revoking the cancellation of his visa (AAT [127], [159]). The difference between the Appellant's submissions and the Tribunal's conclusions arose out of the weight the Tribunal gave to other factors, not the weight that was given to the best interests of minor children consideration.
6. The Appellant says, however, that his oral submissions to the Tribunal were that this consideration weighed very strongly (not just strongly), and the Tribunal has not given any reasons for not preferring this submission. In the circumstances of this case, the difference between weighing this consideration "strongly" and "very strongly" is not so pronounced as to require express explanation. Each party in the Tribunal made a variety of oral submissions about the precise weight that should be given to the sons' best interests. The Appellant initially stated that the parties agreed that this matter weighed "strongly" in favour of revocation, and later submitted that it weighed "very strongly"; while the Minister submitted that this consideration "weighs the strongest" in favour of revocation, but also that this consideration weighed "moderately" in favour of revocation. The weighing of this consideration against other considerations occurred later in the Tribunal's reasons, as discussed in proposed appeal ground 2 below.
7. Second, the Appellant contends that the Tribunal in AAT [127] only accepted the Minister's submissions (as summarised in AAT [126]), and that this summary of the Minister's submissions did not capture everything in the Appellant's submissions (as summarised in AAT [125]). Again, this point turns on the appropriate level of generality. In circumstances where the Appellant's evidence on this point was not contradicted by the Minister, and the Tribunal accepted that this consideration weighed strongly in favour of revocation, the summary of the Minister's submissions in AAT [126], although brief, sufficiently covers off the matters raised by the Appellant on this consideration. Nothing in the Minister's submissions (as summarised in AAT [126]) suggested any disagreement by the Minister with any of the factual points that were raised by the Appellant.
8. Finally, contrary to the Appellant's submission, it is of no significance that the Tribunal's reasons on the first primary consideration (protection of the Australian community) were extensive, even though the Appellant accepted that his offending was very serious (see AAT [58](e)). The Appellant and the Minister took different positions on the other aspect of this consideration; namely, the risk of re-offending (see the summary of the parties' submissions in AAT [83]-[84]). To consider the level of risk, it was necessary for the Tribunal to analyse the seriousness of offending, as shown by the express linking of these matters in AAT [102]. It might be noted that the Appellant's own SFIC in the Tribunal devoted much more space to the protection of the Australian community consideration than the best interests of minor children consideration.
9. For these reasons, appeal ground 1 should be dismissed.

Proposed appeal ground 2: Whether the Tribunal failed to balance the considerations

1. Proposed appeal ground 2 contends that the Tribunal constructively failed to perform the task required by s 501CA(4) of the Act, because it failed to balance properly the relevant considerations in deciding whether to revoke the cancellation of the Appellant's visa. This argument relies on the Full Court decision in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.

1. This argument was not raised before the primary judge, and the Appellant accepts that he requires leave to raise it on appeal. The issue is whether granting leave to raise the new argument is in the interests of justice, having regard to matters such as whether there is an explanation for not raising the point at first instance, whether there is prejudice to any party, and whether the new point has any merit: DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344 at [23]- [24] (the Court); see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]- [48] (the Court).
2. The Appellant accepts that a change in counsel is not sufficient by itself to justify a grant of leave, but submits that the Minister does not suffer any prejudice, and that the ground has sufficient merit to be granted leave. The Minister contends that there is systemic prejudice, in the sense that allowing a new ground on appeal deprives the Minister of the ability to appeal in respect of that ground, as the only appeal available from the Full Court is to the High Court by the grant of special leave. The Minister contends further that the argument does not have sufficient prospects of success. Both parties accepted that the merits of the argument was the decisive factor in this case.

Direction 99 - approach to making s 501CA decisions

1. Direction 99 set out the following approach to making decisions under s 501CA of the Act.
2. Paragraph 6 provided that, "[i]nformed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision".
3. Paragraph 5.2 set out principles that provided the framework for making decisions under (relevantly) s 501CA. Those principles included matters such as the following:
   • Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (para 5.2(2)).
   • Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify ... revoking a mandatory cancellation (para 5.2(6)).
4. Paragraph 8 set out five "primary considerations": protection of the Australian community (para 8.1); whether the conduct engaged in constituted family violence (para 8.2); the strength, nature and duration of ties to Australia (para 8.3); best interests of minor children in Australia (para 8.4); and expectations of the Australian community (para 8.5).
5. Paragraph 9 set out four "other considerations": legal consequences of the decision (para 9.1); extent of impediments if removed (see para 9.2); impact on victims (para 9.3); and impact on Australian business interests (para 9.4).
6. Paragraph 7 set out how considerations were to be taken into account. Relevantly for this appeal:
   • Primary considerations should generally be given greater weight than the other considerations (para 7(2)).
   • One or more primary considerations may outweigh other primary considerations (para 7(3)).

1. In CRNL, the Full Court held that the Tribunal in that case had erred in the approach it had taken to evaluating or weighing the different considerations mentioned in the previous Ministerial direction against each other. Like Direction 99, the previous direction contained "primary" and "other" considerations, and required decision-makers to balance these considerations. The Full Court held that the overall task was to balance these different considerations, to determine under s 501CA(4) whether there was "another reason" why the visa cancellation should be revoked: CRNL at [35].
2. The Full Court in CRNL explained the Tribunal's error as follows:
   • There was no error in the first part of the Tribunal's task, of considering and ascribing weight to each consideration set out in the Ministerial direction: CRNL at [36]. The error arose in the second part of the task, namely "to evaluate the different considerations in relation to each other in a balancing exercise in order to reach the ultimate conclusion": CRNL at [37].
   • Having undertaken the first aspect of the task, the Tribunal proceeded merely to conclude that the Ministerial direction "therefore" favoured non-revocation of the cancellation decision. There was no express evaluation or balancing, and the reasons did not "disclose any process of reasoning which led from the attachment of weight to each consideration, as part of the first aspect of the task, to the ultimate conclusion": CRNL at [37].
   • The Tribunal's reasons in this regard were "perfunctory" and "formulaic". The statutory task was not fulfilled by ascribing a descriptor of weight, such as "strong", "significant", "considerable" or "moderate" (in favour of or against revocation) to the different considerations, primary and other, and then stating a conclusion as if that conclusion was made inevitable by the application of a mathematical formula: CRNL at [38].
3. These statements (particularly the reference to reasons being "perfunctory" and "formulaic") need to be understood by reference to the Tribunal's reasons in CRNL: Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776 at [53] (Halley J); Tkatschenko v Minister for Immigration and Multicultural Affairs [2024] FCA 1357 at [24] (Cheeseman J). As Halley J stated in Thompson at [53], the task of balancing competing considerations of different significance is a qualitative not quantitative exercise, and:

requires the Tribunal to identify the matters that it has considered, assess their relative significance and then to weigh each of those matters against each other in a manner that is largely instinctive and not capable of precise articulation.

1. To similar effect, Jackson J stated in BAE23 v Minister for Home Affairs [2023] FCA 1152 at [51] (a challenge to a Minister's decision under s 501CA(4)) that "[w]hy certain factors outweigh others is inherently difficult to break down to discreet logical steps", and "does not call for calculus or syllogistic reasoning".
2. Significantly for present purposes, in CNRL there was no language used by the Tribunal in its reasons to indicate that it had undertaken any weighing or balancing of all the considerations against each other. Rather, the Tribunal simply listed the individual considerations with an ascribed descriptive term as to the weight to be applied to each. It then said:

The Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant's visa.

1. Reasoning in that way failed to weigh the considerations together. That was especially so when there were factors said to weigh significantly for and against revocation. In that context, the use of the word "therefore" indicated the use of a methodology which produced the required outcome from the individual descriptions given to each consideration. That could only be the case if there was no synthesis of the considerations by weighing them together.

1. In this case, the Tribunal considered in turn the primary and other considerations set out in Direction 99, and ascribed each consideration a weight at the end of its consideration of that factor: for example, the Tribunal found along the way that the protection of the Australian community weighed "very heavily" against revoking the cancellation of the Appellant's visa (AAT [102]), and found that the best interests of minor children in Australia weighed "heavily" in favour of revocation (AAT [127]).
2. Under the heading "The Weighing Exercise", the Tribunal then discussed how to apply the primary and other considerations. The Tribunal summarised its understanding of CRNL at AAT [152]-[154], and stated that it would now "compare and balance the considerations to determine whether [the Tribunal] is satisfied that there is another reason why the original decision [to cancel the Appellant's visa] should be revoked" (AAT [155]).
3. The Tribunal reiterated the weight it had previously given to each of the primary and other considerations at AAT [156]-[161]. The Tribunal then stated (at AAT [162]):

I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations ... . Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that [Appellant]'s visa and those against revoking the decision to cancel the [Appellant]'s visa, I find that the considerations against revoking the decision to cancel the [Appellant]'s visa, being the first primary consideration, the protection of the Australian community, the second primary consideration, family violence committed by the [Appellant] and the fifth primary consideration, the expectations of the Australian community, outweigh the primary considerations of ties to the Australian community, the best interests of minor children and the other consideration of impediments if removed which weighed in favour of the revocation of the cancellation of the [Appellant]'s visa. Accordingly, I find that there is not another reason why the original decision should be revoked.

1. There is no error in the Tribunal's approach. At the very least, the Tribunal's reasons, summarised above, are very different from the Tribunal's reasons in CRNL (summarised above, and set out in CRNL at [24]). As a general comment, it would be surprising if the Tribunal, having correctly summarised the effect of CRNL at AAT [152]-[154], proceeded immediately to commit the very error that the Tribunal had cautioned itself to avoid.
2. The Tribunal was permitted as an interim step in its reasoning to characterise the significance of individual considerations before undertaking its final evaluation: DBWG at [62] (the Court). The Tribunal identified the correct statutory question at AAT [155]. The Tribunal explicitly weighed the different considerations against each other in AAT [162] ("Having weighed the considerations in favour of revoking the decision to cancel that [Appellant]'s visa and those against revoking the decision to cancel the [Appellant]'s visa..."). The Tribunal in AAT [162] turned its mind, correctly, to whether there was any reason not to apply the general principle in para 7(2) that primary considerations should generally be given greater weight than other considerations. The weighing process was perhaps not extensive. But the actual weighing of the competing considerations may not be capable of precise articulation, and is difficult to articulate in discreet logical steps: see Thompson at [53]; BAE23 at [51].
3. The Appellant contended that the Tribunal's reasons here compared unfavourably to the reasons considered in BAE23 (set out in [26] of that judgment) and in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 (set out in [20] of that judgment). It is true that the Minister's conclusions in BAE23 do contain more of a summary of the major findings of fact, as well as a weighing of competing considerations, than the Tribunal's weighing exercise in this case. However, that difference in expression does not suggest error in the Tribunal's decision in this case. There is no difference of substance between the reasons in FHHM, on the one hand, and the Tribunal's reasons here. And the Tribunal's reasoning here is more detailed than the reasoning upheld in Tkatschenko at [47]-[48] (read with [45]).
4. In a fact-sensitive area such as this, comparing the facts of previously decided cases may be of little assistance: BAE23 at [52]. The point identified in CRNL is not about verbal formulae, but whether there is a reality of weighing the different considerations. The weighing process that is required will depend on the circumstances of the case: for example, the best interests of minor children will present very different issues when the non-citizen has been the carer for intellectually disabled children: cf the facts of Guttridge v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 229. In such a case, it may be necessary to engage in more detailed reasons to explain why other considerations outweigh the best interests of minor children. In this case, the Tribunal's reasons demonstrated an actual weighing of the competing considerations in this case.
5. Proposed appeal ground 2 should therefore be rejected. It is a finely balanced question whether the prospects of this proposed appeal ground are insufficient for a grant of leave, noting that no other factors favour the grant of leave: see [39] above. Given the fact-sensitive nature of this argument, we would grant leave to raise appeal ground 2, but reject that ground on its merits.

1. For these reasons, the appeal should be dismissed. The Appellant accepted at the hearing that there is no reason why costs should not follow the event.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Colvin, Stellios and Hill.