Cai v Minister for Immigration and Citizenship FCA

The Minister submitted the applicant’s submission is addressed by Plaintiff S22 of 2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 (Plaintiff S22), where Gageler CJ, Edelman and Jagot JJ observed at [25]-[26]:

Plaintiff S22 post-dates the Court’s decision in Ismail on which the applicant relies.

The applicant submitted that Plaintiff S22 is inconsistent with Ismail, and to the extent of any inconsistency Ismail is to be preferred.

The respondent submitted there is no relevant inconsistency. This is correct. Properly read, Ismail at [52] explained that the delegate is not to depart from the norm, as applicable by reference to the terms of paragraph 8.5(1)-(3). The relevant norm is then to be weighed with the other considerations as required by paragraphs 6 and 7 of the Direction. The issue is what weight to give to that norm. It is in that context where Plaintiff S22 recognised that given the sentencing judge viewed the offending as “very serious”, as recorded in the delegate’s decision, “the delegate was entitled to give the expectations of the Australian community significant weight in deciding against the revocation of the mandatory cancellation of the plaintiff's visa even though the plaintiff's conduct was not of the kind specified in para 8.5(2)”: at [26]. That does not change the norm, which focuses on lawbreaking: FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [101]. The weight that is given to that norm, would necessarily turn on the seriousness of the offending.

In DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 3; (2024) 301 FCR 344, considering a predecessor to the Direction, the Full Court said at [57]:

See also Minister for Immigration v RXJT [2026] FCA 33, where Moshinsky J reiterated at [61]-[62]:

See also RRRB v Minister for Immigration [2026] FCA 337at [32] (McDonald J).

During the hearing the applicant (as an alternative submission) also attempted to confine the application of Plaintiff S22, contending its reasoning should not be read as applying generally, but rather the statements made by the High Court were made in the context of the particular type of offending engaged in by Plaintiff S22. To put that another way, the High Court only concluded there was no error in the Delegate’s reasoning on this aspect because of the serious nature of Plaintiff S22’s offences and therefore its reasoning has no broader application. In making the submission the applicant attempted to distinguish this case on the facts of the offending conduct. The underlying premise of the submission cannot be accepted. It is not supported by the reasoning in Plaintiff S22 at [25]-[26], and therefore the submission fails. The submission fails to grapple with the Court’s reasons which considered the Delegate’s decision in light of its construction of paragraph 8.5. In any event, the submission appears to convert this application to a factual challenge. That is, the applicant’s conduct was not as serious as that of Plaintiff S22 and therefore the Tribunal could not rely on it in the manner it did. However, the ground of review is a constructional one, whether the Tribunal’s reasoning breached paragraph 8.5 (in the manner described above). No aspect of the ground of review is based on an allegation the Tribunal’s findings as to the nature and serious of conduct were, as a matter of fact, unreasonable.

Turning to the Tribunal’s reasons.

In this case the norm is that in paragraph 8.5(1), as it was in Plaintiff S22. In so far as the applicant relies on the failure of the Tribunal to refer to the conduct in paragraph 8.5(2), no error has been established. It is plain from the Tribunal’s reasons that it did not consider the offence came within the conduct specifically referred to in paragraph 8.5(2)(a)-(f). The obvious inference from the terms of the reasons is that the Tribunal considered the categories and recognised this offence did not fall within these: Plaintiff S22 at [25].

It is plain from the Tribunal’s reasons at [64]-[65] that the Tribunal applied the norm in paragraph 8.5(1), and its understanding of the meaning of paragraph 8.5 is clear and correct. Nothing in [70]-[73] alters that. The Tribunal recognised that the consideration of expectations of the community does not predominate over others, but is an important one in this case. That is an acknowledgement that there are countervailing considerations against the expectation expressed in paragraph 8.5(1) and they bore heavily on the Tribunal. The Tribunal stated “it [was] not an easy decision” because of those countervailing considerations and the consequences that would flow from its decision: at [73]. The Tribunal referred to the offence, and the sentencing judge’s description of it: at [71], [73]. This is in a context where the Tribunal had earlier considered the applicant’s offending: at [16]-[38]. In effect, the Tribunal described the offending as “very serious”. The Tribunal was entitled to take the nature of the conduct into account in assessing what weight was to be given to it in the weighing process. A fair reading of the reasons does not support the applicant’s submission the Tribunal considered that nothing could overcome the seriousness of the offending. The Tribunal proceeded on the basis that the expectations of the Australian community were as expressed in the Direction and assessed the weight to be given to this consideration having regard to the level of seriousness of the offending. There is no error in doing so. The Tribunal did not determine for itself the expectations of the Australian community, but applied the norm.

The applicant has not established the ground of review.

The extension of time in which to file the application for review is granted, but the application is dismissed with costs.