Cowgill v Minister for Immigration and Citizenship [2025] FCAFC 166

1. This is an appeal from a decision by a judge of this Court: Cowgill v Minister for Immigration and Multicultural Affairs [2025] FCA 704 (J). The primary judge dismissed an application to review a decision of the former Administrative Appeals 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 appeal should be dismissed, essentially for the reasons given by the primary judge. The Appellant should pay the Minister's costs.

1. The Appellant is a citizen of New Zealand. He first arrived in Australia in November 1977, when he was 11 months old (J [1]).
2. The Appellant has been convicted of almost 140 offences. On 6 October 2020, he was convicted in the District Court of Western Australia of 54 separate offences, and sentenced to a total effective sentence of five years and six months' imprisonment (as well as fines) (J [2]).
3. On 18 November 2020, the Appellant's visa was cancelled under s 501(3A) of the Act. The Appellant sought revocation of that cancellation decision on 26 November 2020.
4. On 13 April 2021, a delegate of the Minister decided under s 501CA of the Act not to revoke the cancellation of the Appellant's visa. The Appellant applied to the Tribunal for merits review of that decision on 21 April 2021.
5. On 7 July 2021, the Tribunal affirmed the delegate's decision. On 11 November 2022, this Court held that the Tribunal had failed to consider the known views of the Appellant's minor child, and set aside the Tribunal's decision: Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1337.
6. On remitter, the Tribunal affirmed the decision of the delegate not to revoke the cancellation of the Appellant's visa on 11 April 2024. The Tribunal applied the previous 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) [31]).
7. On 2 May 2024, the Appellant applied to this Court for judicial review of the second Tribunal's decision. The Appellant filed an amended originating application on 15 November 2024.
8. On 27 June 2025, the primary judge dismissed the application for judicial review. The relevant part of the judgment for this appeal are the reasons given by his Honour for rejecting ground 3 below.
9. Ground 3 in the Court below contended that the Tribunal had made inconsistent findings of fact in its treatment of "family violence", thereby reasoning illogically, irrationally or unreasonably, in that:

(a) at [74]-[75], the second respondent held that the behaviour of the [Appellant] which gave rise to a family violence restraining order was not an act of family violence, while at [151]-[152] the second respondent held that the behaviour of the [Appellant] which gave rise to the family violence restraining order was family violence;

(b) at [75], [97] and [218], the second respondent held that the [Appellant]'s breach of the family violence restraining order was not an act of family violence, while at [151]-[152] the second respond[ent] held that the breach of the family violence restraining order was family violence.

See J [34]. The Appellant also relied below on the statements in AAT [197] (see J [65]-[66]).

(a) His Honour held that the Tribunal had misunderstood the meaning of "family violence" in paras 8.1.1(1)(a), 8.2, 8.4 and 8.5 of Direction 99, because the Tribunal considered that the meaning of "family violence" varied according to which part of the direction was being considered (J [73]). This was in error: nothing in Direction 99 supported the notion that "family violence" had different meanings in different contexts (J [75]).

(b) However, it did not follow that the Tribunal had committed jurisdictional error (J [76]). The effect of the Tribunal's error was that certain conduct which should have been included as "family violence" for the purposes of paras 8.1.1(1)(a) and 8.5, was not included. That error was very clearly to the Appellant's advantage: taking this conduct into account as "family violence" (as the Tribunal should have done) could only have counted against revoking the cancellation of the Appellant's visa (J [77]). In those circumstances, there was no realistic possibility that the Tribunal's decision could have been different if it had correctly understood and applied Direction 99 (J [78]).

1. On 21 July 2025, the Appellant lodged a notice of appeal against the decision of the primary judge. The single ground of appeal is as follows:

The primary judge, having found that the second respondent (the Tribunal) erred in making inconsistent findings as regards "family violence" (as defined by Direction 99), erred in finding that the second respondent's error was not material in the sense described in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, and should have found that the error constituted illogical, irrational and unreasonable reasoning and was material: J[73]-[78].

1. The Appellant explained at the hearing that he required a short extension of time because, although the notice of appeal was lodged within the time required, it was not served until a week later. By r 36.03 of the Federal Court Rules 2011 (Cth), an appellant must "file" a notice of appeal (defined in Sch 1 to mean file and serve) within 28 days after the date that judgment was pronounced. The Minister did not object to that extension being granted, without making any concessions as to the merits of the Appellant's case. The Court granted this extension of time at the hearing.

1. The starting point is to set out the role that "family violence" played under Direction 99 for decisions made under s 501CA of the Act, and then the Tribunal's findings on that topic.

1. "Family violence" was defined in para 4(1) of Direction 99 to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful", and to include "repeated derogatory taunts", and "unreasonably denying the family member the financial autonomy that he or she would otherwise have had" (see para (d) and (g) of the definition). That is, the definition was not confined to physical violence.
2. Paragraph 8.1.1(1) provided that, in considering the nature and seriousness of the non-citizen's offending or other conduct, decision-makers must have regard to (among other things) "acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed" (para 8.1.1(1)(a)(iii), emphasis added).
3. The second primary consideration in Direction 99 was "Family violence committed by the non-citizen". By para 8.2(2), this consideration was relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or > > b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

4. Paragraph 8.4(4) set out factors that were required to be considered, where relevant, in considering the best interests of minor children in Australia affected by the decision. Those factors included "evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen" (para 8.4(4)(g), emphasis added).
5. Another primary consideration was the expectations of the Australian community (para 8.5). Direction 99 stated that the Australian community expected that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raised serious character concerns through conduct, in Australia or elsewhere, of various kinds, including "acts of family violence" (para 8.5(2)(a)).

Tribunal's findings concerning family violence

1. The relevant findings of the Tribunal concerning family violence were as follows.
2. The Tribunal set out that the Appellant was convicted in October 2018 for Breach Family Violence or Violence Restraining Order (FVRO). The Appellant's partner has obtained four FVROs against the Appellant: the first FVRO issued on 19 April 2018 expired after two years, and the other three orders were later revoked (AAT [144]).
3. The Appellant's partner gave evidence to the first Tribunal (relevantly) that the Appellant had been abusive, insulting, derogatory and verbally threatening towards her, but had never been physically violent. She said that the Appellant engaged in nasty drug-fuelled arguing and emotional violence. She had been accepted as a credible and honest witness by the first Tribunal, and was not called to give evidence at the hearing on remittal (AAT [149]).
4. In considering the seriousness of the Appellant's offending, the Tribunal stated as follows (emphasis added, footnote omitted):
   1. In the Tribunal's view, none of the [Appellant]'s crimes or offences as an adult and as evidenced before the Tribunal are properly characterised as 'violent crimes', 'sexual crimes' or 'crimes of a violent nature against women or children'. While the Tribunal accepts the [Appellant] was the subject of a Family Violence Restraining Order (FVRO) there was no information to suggest that arose in the context of the sort of violence contemplated in the part of Direction No 99 and in any event, for the reasons discussed further below, the Tribunal did not regard that offence to be particularly serious.
   2. Notwithstanding none of the [Appellant]'s offending falls within the categories outlined in par 8.1.1[(1)](a) of Direction No 99, in the Tribunal's view the [Appellant]'s record of offending is very serious for the reasons detailed below.
5. Later in its consideration of the seriousness of the Appellant's offending, the Tribunal stated (emphasis added, footnote omitted):
   1. As noted above, paragraph 8.1.1(1)(a) of Direction No 99 requires the Tribunal to take into account whether the [Appellant] has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that might be considered serious by the Australian Government and community. While the [Appellant] has been convicted of common assault and for the breach of a FVRO, having regard to the circumstances of those offences the Tribunal does not consider them to be of the nature of offences which fall within the category contemplated by this part of Direction No 99. This assessment is consistent with submissions from the Respondent which contended the FVRO offence should be considered under the Family Violence considerations at par 8.2 of Direction No 99.
6. In considering community expectations, the Tribunal stated as follows (emphasis added):
   1. For the reasons noted earlier, the Tribunal does not consider that the [Appellant]'s offences are of the kind contemplated by sub-paras 8.5(2)(a)-(f). However, the Tribunal has found that his offending history is very serious reflected in a long and sustained history of offending which has attracted significant sentences of imprisonment. The Tribunal has also found that there is an on-going risk the [Appellant] will reoffend.
7. The findings set out in [24]-[26] above were to the effect that the Appellant had not committed family violence.
8. By contrast, in considering the family violence consideration in para 8.2 of Direction 99, the Tribunal stated as follows (emphasis added, footnotes omitted):
   1. The Tribunal accepts that the fine with respect to the breach of the family violence restraining order in 2018 was a global fine and there is limited evidence before the Tribunal regarding the details of the restraining orders. Having regard to the evidence available, the Tribunal accepts that the restraining orders were not as a consequence of actual physical violence and that the breach of the order in 2018 did not involve physical violence. This is consistent with the [Appellant]'s broader record of offending.
   2. However, the Tribunal considers the evidence does establish the [Appellant]'s conduct constituted family violence, albeit it at the lower end of seriousness. [The partner]'s evidence establishes she sought orders to remove the [Appellant] from the home because his behaviour under the influence of drugs was a threat to her and the children. She gave evidence the [Appellant] engaged in "abusive, insulting, derogatory and verbally threatening" behaviour and "emotional violence" causing her to have concerns which were sufficient to cause her to seek family violence restraining orders and to report a breach of those orders with respect to the 2018 offence. In the Tribunal's view this constitutes, "threatening or other behaviour by a person that coerces or controls a member of the person's family...or causes the family member to be fearful", within the definition of "family violence" in para 4(1). [The partner] need not have been fearful the [Appellant] would be physically violent, it is sufficient that she felt the [Appellant]'s behaviour threatened the wellbeing of the family members in the household as described in her evidence.
9. Before the primary judge, the Appellant also relied on the Tribunal's findings in AAT [197] about the best interests of minor children, which was as follows (emphasis added, footnote omitted):
   1. Paragraph 8.3(4)(g) of Direction No 99 requires the Tribunal to consider whether a child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the noncitizen. There is no evidence of physical violence by the [Appellant] towards [the Appellant's children] and while [the Appellant's partner] said in oral evidence that she had obtained restraining orders against the [Appellant] in part to protect the children the Tribunal does not consider there is evidence to establish the children have been exposed to family violence or that there is a likelihood they would be in the future.
10. The Appellant stated at the hearing that he no longer relied on AAT [197]. However, this reasoning provides some additional context to understand the Tribunal's reasons: see [39] below.

Proper interpretation of the Tribunal's reasons

1. The key difference between the parties is the proper interpretation of the Tribunal's reasons set out above.
   • The Appellant contends that the statements in AAT [74]-[75], [97], [197] and [218] are findings of fact that the Appellant had not committed family violence (as defined), which is inconsistent with the finding in AAT [151]-[152] that the Appellant had committed family violence. From that premise, the Appellant contends that the Tribunal made inconsistent findings of fact, such that its decision is irrational or illogical.
   • The Minister (adopting the reasoning of the primary judge) contends that the Tribunal adopted a different meaning of "family violence" in AAT [74]-[75], [97], [197] and [218], on the one hand, and in AAT [151]-[152], on the other. From this different premise, the Minister contends that there is no inconsistency between the Tribunal's findings.
2. As a preliminary point, the impugned findings are not really findings of fact, but rather involve the Tribunal determining whether certain conduct (which is the subject of findings of fact) is properly characterised as "family violence" for the purposes of Direction 99. This does not change the broad outline of the Appellant's argument, which is that the Tribunal drew inconsistent conclusions.
3. It is not in dispute that the Tribunal's reasons must be read fairly and as a whole: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [38] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ), citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
4. Here, the Appellant's approach to the Tribunal's reasons would give rise to a striking, and overt, inconsistency of reasoning: the Tribunal would have found that the Appellant had, and had not, committed family violence. Although there is no obligation on a Court to strain to read reasons to avoid invalidity, the present situation at least merits a second look, before accepting that the Tribunal reached such flatly contradictory conclusions. That is particularly so, in circumstances in which the Tribunal had found, as a matter of fact, that the Appellant had engaged in abusive, insulting derogatory and verbally threating behaviour and emotional violence causing his partner to have concerns that were sufficient to cause her to seek family violence restraining orders and report a breach of those orders. Further, she felt that the Appellant's behaviour threatened the wellbeing of the family members: see AAT [149]-[152].
5. As held by the primary judge, there are indications in the Tribunal's reasons that it was applying different meanings of "family violence" in different parts of its reasons.
   • Most clearly, the Tribunal stated in AAT [97] that, having regard to the circumstances of the Appellant's conviction for breach of a FVRO, the Tribunal "does not consider them to be of the nature of offences which fall within the category contemplated by [para 8.1.1(1)(a)] of Direction No 99" (emphasis added). The Tribunal stated this assessment was consistent with submissions from the Minister that the FVRO offence "should be considered under the Family Violence considerations at par 8.2 of Direction 99".
   • Similarly, the Tribunal stated in AAT [74] that, while the Appellant was the subject of a FVRO, "there was no information to suggest that arose in the context of the sort of violence contemplated in [para 8.1.1(1)(a)] of Direction No 99". (emphasis added)
   • The Tribunal in AAT [218] explicitly relied on earlier parts of its reasons (meaning the statements set out above) to conclude that the Appellant's offences are not "of the kind" contemplated by para 8.5(2)(a)-(f) of Direction 99. The Tribunal in AAT [215] stated that the types of harm particularised in para 8.5(2) "generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very seriously' or 'serious'".

As we explain later in these reasons, the above paragraphs appear to limit "family violence" in paras 8.1.1(1)(a) and 8.5(2) of Direction 99 to the more serious forms of family violence, especially those involving physical violence.

1. The Appellant contends that no significance should be given to the phrases "of the nature" and "of the kind", because these or similar expressions appear in the relevant paragraphs of Direction 99 (for example, the heading to para 8.1.1 is "The nature and seriousness of the conduct"). However, as the Minister submits, that usage rather suggests that the Tribunal was considering the meaning of "family violence" for the purposes of the particular consideration, rather than applying the definition in para 4(1).
2. Further, as a contextual matter, the Minister's written submissions in the Tribunal (referred to in AAT [97]) stated that the Appellant's conduct leading to the conviction for breach of the FVRO "plainly amounts to 'family violence' within the meaning of cl 4(1) of Direction 99", but that "it is unlikely to be conduct of a kind to which cl 8.1.1(1)(a)(iii) is principally directed". The Minister submitted that this conduct should be considered in the context of para 8.2. On its face, this submission from the Minister urged the Tribunal to adopt a different approach to the meaning of "family violence" in para 8.1.1(1)(a) and para 8.2, because (it was said) certain offending fell outside para 8.1.1(1)(a). That is how the Tribunal appears to have understood the submission in AAT [97]. We do not accept the Appellant's argument that the Minister was merely submitting that the Tribunal should give less weight to this offending under para 8.1.1(1)(a).
3. The matters relied on by the Appellant do not displace the textual and contextual matters set out above. It is true that the Tribunal set out the definition of "family violence" in para 4(1) at AAT [140], and consistently applied this meaning when considering the family violence consideration in para 8.2 at AAT [139]-[154]. However, that simply illustrates that the Tribunal applied different meanings of "family violence" in different parts of its reasons, not that the Tribunal was applying the definition of "family violence" when considering the nature and seriousness of offending, and community expectations. It is immaterial that the Tribunal was aware generally that certain concepts were defined in Direction 99 (as illustrated by the reference to the defined term "decision-maker" in footnote 30): the issue is what the Tribunal meant by "family violence" in different parts of its reasons. Nor does it matter that the Tribunal summarised the parties' submissions on the Appellant's offending (including references to family violence) at AAT [66]-[67]. The Tribunal only engaged in detail with what was "family violence", applying the definition in para 4(1), in AAT [144]-[152], in considering para 8.2 (family violence). The bare mention of family violence in AAT [66]-[67] does not suggest that the Tribunal was using the term as defined when discussing family violence at AAT [74]-[75], and [97] (when considering the nature and seriousness of the Appellant's offending).
4. The Appellant also contended that there was no indication in the Tribunal's reasons of what different meaning was being given to "family violence" when discussing paras 8.1.1(1)(a) and 8.5(2) of Direction 99. It is true that the Tribunal does not spell out what specific meaning it was giving to "family violence" in those parts of Direction 99, but there are indications that the Tribunal considered that "family violence" in these contexts was more serious offending, particularly that involving an element of physical violence.
   • In considering "family violence" in para 8.2, the Tribunal found in AAT [151] that the restraining orders were not as a consequence of "actual physical violence" and the 2018 breach of the FVRO did not involve physical violence; "[h]owever", this conduct did constitute family violence (AAT [152]).
   • Accordingly, when the Tribunal stated earlier in AAT [97] that breach of the FVRO was not of the nature of offences contemplated by para 8.1.1(1), "having regard to the circumstances" of that offence, the relevant circumstance appears to be the lack of physical violence.
   • In AAT [197] (considering the best interests of minor children), the Tribunal's statement that there was no "evidence to establish the children have been exposed to family violence" followed on from a statement that there was no evidence of physical violence by the Appellant towards his children.
5. For these reasons, we agree with the primary judge that the Tribunal applied different meanings of "family violence" in different parts of its reasons, which explains its apparently contradictory findings. The Tribunal's reasoning was therefore not illogical or irrational, or legally unreasonable.

1. However, this interpretation of the Tribunal's reasons gives rise to two further issues: (i) whether this differential meaning of "family violence" involved a misunderstanding of Direction 99; and (ii) if so, whether that misunderstanding was a material error. The Minister accepted in this appeal that the Tribunal had misunderstood Direction 99 in the manner identified by the primary judge (issue (i)), but submitted that this error was not material (issue (ii)).
2. To misunderstand or misapply a binding Ministerial direction made under s 499(2A) of the Act (such as Direction 99) can amount to jurisdictional error: see Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358 at [53] (Katzmann J); Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148; (2023) 299 FCR 410 at [33] (the Court). However, any error of this type is subject to a requirement of materiality, analogous to the requirement to demonstrate that any error of law affected the decision: as to which, see Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [42] (the Court), citing Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 (the Court).
3. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [7], Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ held that an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that "there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred".
4. In this case, assuming for the moment that applying a differential meaning of "family violence" was an error, that error by the Tribunal caused it to exclude certain offending conduct that should have been considered as "family violence" for the purposes of paras 8.1.1(1)(a)(iii) and 8.5(2)(a) of Direction 99. In broad terms, those paragraphs of the direction provide that decision-makers should regard family violence especially unfavourably: see [17], [20] above. Accordingly, the primary judge was correct to find that any error by the Tribunal in this case could only have been to the Appellant's advantage, and there was no realistic possibility of a different decision if the Tribunal had not committed the error (J [77]-[78]). At the hearing, the Appellant did not submit to the contrary.
5. It follows that any misunderstanding by the Tribunal of the meaning of "family violence" in Direction 99 was not a material error in the circumstances of this case. The primary judge was correct so to hold.

1. At the hearing, the Court put to both counsel that an alternative interpretation of Direction 99 is that the reference to "family violence" in para 8.1.1(1)(a)(iii) of Direction 99 was intended to pick up only serious examples of family violence, and not every instance. That interpretation would give para 8.2 more independent work to do, because otherwise para 8.2 would wholly overlap with para 8.1. That interpretation would mean there was no misunderstanding by the Tribunal of Direction 99 to begin with (cf issue (i) identified in [41] above). It is not necessary to resolve this issue for the purposes of the appeal: Direction 99 is no longer current, and on either interpretation, the appeal must be dismissed.

1. For these reasons, the appeal should be dismissed. There is no reason to depart from the usual position that costs follow the event.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Sarah C Derrington, Feutrill and Hill.