What happened
The appellant, known by the pseudonym FYBR, is a citizen of Afghanistan who arrived in Australia as an unauthorised maritime arrival on 12 March 2013. He was granted bridging visas, the second of which was cancelled in September 2015. In March 2016 he was convicted in the Local Court of New South Wales of common assault, procuring a child for unlawful sexual activity, and two counts of stalking or intimidation with intent to cause fear or physical or mental harm. On appeal he was sentenced to 12 months' imprisonment with a seven-month non-parole period. Upon release he was taken into immigration detention under s 189(1) of the Migration Act 1958 (Cth) as an unlawful non-citizen.
In April 2017 FYBR applied for a Safe Haven Enterprise (Class XE) visa. A delegate of the Minister for Home Affairs refused the application in August 2018 on the basis that FYBR did not pass the character test in s 501(6)(e) because he had been convicted of a sexually based offence involving a child. FYBR sought review in the Administrative Appeals Tribunal. In November 2018 the Tribunal affirmed the delegate's decision: Re FYBR and Minister for Home Affairs [2018] AATA 4281. The Tribunal found the offending serious, noted the absence of rehabilitation steps, and concluded that the primary considerations of protection of the Australian community and expectations of the Australian community outweighed other considerations, including Australia's non-refoulement obligations and the prospect of prolonged or indefinite detention.
An application for an extension of time to seek judicial review in the Federal Court was granted but the application was dismissed in April 2019: FYBR v Minister for Home Affairs [2019] FCA 500. The primary judge held that the Tribunal had not erred in its treatment of cl 11.3(1) of Direction No 65. FYBR appealed to the Full Court. The appeal was heard on 22 August 2019. On 24 October 2019 the Full Court (Charlesworth and Stewart JJ, Flick J dissenting) dismissed the appeal with costs. The majority held that the Tribunal had correctly understood cl 11.3(1) as expressing a deemed community expectation that weighs against the grant of a visa to a non-citizen who has committed serious offences, and that the Tribunal had lawfully weighed that primary consideration against other matters.
Why the court decided this way
The central question was the proper construction of cl 11.3(1) of Direction No 65, which the Tribunal was required to apply by force of s 499(2A) of the Migration Act. Charlesworth J framed the inquiry as two questions: first, whether the clause expresses an expectation deemed by the government to be held by the Australian community; and second, whether that expectation must of its nature weigh against the grant of a visa in every case ([61]).
The majority answered both questions affirmatively, but with important qualifications. Charlesworth J held that cl 11.3(1) is to be read in its textual, contextual and purposive setting. The Direction is a guide (cl 6.1(4)) and a framework (cl 6.2(3)) intended to promote consistency in high-volume decision-making (citing Plaintiff M64/2015 v Minister For Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [54]). Because there is no homogeneous Australian community view on visa outcomes in character cases ([87] per Stewart J), it is unsurprising that the Minister has chosen to articulate normative expectations. The clause therefore imputes to the community the expectation that non-citizens will obey Australian laws and that, where they have not, visa refusal may be appropriate simply because of the nature of the offences ([70]-[72]).
Both majority judges emphasised that the clause is not an invitation for the decision-maker to conduct an empirical or subjective inquiry into what the community would think of the particular applicant's circumstances. Stewart J observed that such a task would be impossible and would produce inconsistent results, undermining the very purpose of the Direction ([88]). Instead, the decision-maker must "have due regard" to the Government's stated view (final sentence of cl 11.3(1)) and generally give that primary consideration more weight than other considerations (cl 8(4)). The words "may be appropriate" and "generally" preserve flexibility in the ultimate balancing exercise but do not alter the content of the deemed expectation itself.
The Tribunal had cited Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76], describing cl 13.3 (the revocation analogue) as "a kind of deeming provision". The majority approved that characterisation. The Tribunal had then applied the clause to FYBR's sexual offending against a vulnerable child and concluded that the Australian community would regard it as unacceptable, thereby weighing the consideration in favour of refusal ([56]-[57] of the Tribunal's reasons). That approach disclosed no jurisdictional error. The Tribunal had separately weighed the protection of the community, non-refoulement obligations and the appellant's prolonged detention, ultimately concluding that the two primary considerations outweighed the others ([67] of the Tribunal's reasons). Because the Tribunal had not treated the deemed expectation as automatically decisive, its reasoning was lawful.
Flick J would have allowed the appeal. His Honour considered that cl 11.3(1) does not exhaustively define community expectations and that a decision-maker may, in an appropriate case, find that the community would be more tolerant than the "inflexibly expressed assessment" in the clause ([14]). The majority explicitly rejected that construction, holding that it would render the relative-weighting rules in cl 8 unworkable and would convert the primary consideration into a mere subset of the ultimate discretionary exercise ([39] per primary judge, approved at [74] per Charlesworth J).
Before and after state of the law
Prior to Direction No 65, the Full Court in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; 139 FCR 292 at [71] had recognised that s 501 is designed to protect the community from criminal conduct and to give effect to what might loosely be described as community expectations that perpetrators of such conduct should not remain in Australia. Cases such as Drake v Minister for Immigration And Ethnic Affairs (1979) 24 ALR 577 established that the Minister may promulgate policy to guide the exercise of discretion provided the policy does not fetter the statutory power.
Direction No 65, issued on 22 December 2014, sought to give more structured content to those expectations. Clause 6.3 set out principles reflecting "community values and standards", including that Australia has a low tolerance of criminal conduct by short-term participants in the community (cl 6.3(5)-(6)) and that the best interests of minor children and positive contributions are relevant (cl 6.3(7)). Clause 11.3(1) then particularised the expectations consideration for visa refusals.
The primary judge and the majority in the present case held that the construction adopted by Mortimer J in YNQY at [76] (describing the clause as a deeming provision) and by Thawley J in Oluwafemi v Minister for Home Affairs [2018] FCA 1389 at [37] was not plainly wrong and should be followed. Bromwich J's observation in Afu v Minister for Home Affairs [2018] FCA 1311 at [85] that the concept is not a provable fact but an assessment of community values was also treated as consistent. Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495 had expressed doubt about whether YNQY meant the consideration could never weigh in favour of an applicant; the majority distinguished that reading, holding that the expectation itself always weighs against grant but may be outweighed in the final balance.
After this judgment, the legal position was that cl 11.3(1) articulates a fixed normative expectation that weighs against visa grant in character cases, but the ultimate outcome remains a matter for evaluative judgment after all considerations have been weighed in accordance with cl 8. The Direction was later replaced by Direction No 79 and then Direction 90, but the core textual features of the expectations clause remained materially similar, and the reasoning in FYBR has continued to guide the proper approach.
Key passages with plain-English translation
At [70] Charlesworth J states: "The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence: 'The Australian community expects non-citizens to obey Australian laws while in Australia.'"
Plain-English translation: The starting point is simple – everyone in Australia, citizen or not, is expected to follow the law. If a visa applicant has not done so, that fact alone engages the community-expectations consideration and points against giving them a visa.
At [74] her Honour continues: "The phrase 'may be appropriate' does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to 'other considerations' in the exercise of the discretion, as cl 8(4) of the Direction generally requires."
Plain-English translation: The tribunal cannot say "I think the community would be forgiving in this case, so the expectation weighs in the applicant's favour." The expectation is set by the government and generally pulls against the applicant; only at the final weighing stage can other factors (such as long detention) overcome it.
Stewart J at [97] explains: "The use of the phrase 'may be appropriate' has the inevitable consequence that the community expects that there will be circumstances where the disobedience or breach or risk of disobedience or breach referred to in the earlier part of the sentence will not lead to refusal of the visa application. The community thus expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of 'appropriateness'. That assessment is not an assessment of what the Australian community expects in the particular case."
Plain-English translation: The Direction itself tells decision-makers that sometimes refusal will not be appropriate. That evaluation is the tribunal's job, but it is not the same thing as deciding what the community "would expect" if asked about the specific facts. The community expectation is the general rule; the tribunal's job is to decide whether that rule should prevail.
At [103] Stewart J adds: "It follows from the above that I am essentially, and respectfully, in agreement with Robertson J in Uelese … Mortimer J in YNQY … Thawley J in Oluwafemi … and the primary judge … It is not the decision-maker who makes an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65."
Plain-English translation: Previous single-judge decisions that treated the clause as setting a government-stated norm rather than inviting personal speculation were correct. The tribunal applies the norm; it does not invent a new one based on the applicant's personal story.
What fact patterns trigger this precedent
This precedent is triggered whenever a decision-maker bound by Direction No 65 (or its successors) must consider cl 11.3 (or analogue) as a primary consideration in exercising the discretion under s 501(1) to refuse a visa, or under s 501CA to revoke a mandatory cancellation. It applies with particular force where the applicant has been convicted of a sexually based offence involving a child (s 501(6)(e)), or any other offence that the decision-maker assesses as serious under cl 11.1. The precedent governs the approach to be taken even where the applicant has spent a long period in immigration detention, faces non-refoulement risks, or can point to positive contributions or long residence. In all such cases the decision-maker must treat the deemed community expectation as weighing against the grant or revocation, give it greater weight than "other considerations" unless there is reason to depart from that relative weighting, and not conflate the content of the expectation with the applicant's individual mitigating circumstances. The precedent does not apply to the distinct statutory task under s 501CA(4)(b)(ii) where the Direction is not engaged, nor where a later Direction has materially altered the wording.
How later courts have treated it
The judgment itself treats earlier authorities as correctly stating the law. It follows the construction in YNQY at [76] that the consideration is a "kind of deeming provision" and applies the same approach to the visa-refusal context of cl 11.3 as had been applied to the revocation context of cl 13.3. It approves the statements in Oluwafemi at [37] that it is not for the Tribunal to determine expectations by reference to the applicant's circumstances, and in Afu at [85] that the concept is not a provable fact but an assessment of community values expressed in the Direction. The majority distinguishes the broader reading of YNQY suggested by Griffiths J in DKXY at [30]-[31], holding that the expectation itself always weighs against the applicant although it may be outweighed in the final balance.
The structural reasoning drawn from the primary judge at [39]-[42] – that importing all countervailing factors into the expectations consideration would render cl 8(4) unworkable – has been influential. The judgment also cites with approval the principle from Uelese at [65] that the Minister may make a statement of the Government's views as to community expectations and the Tribunal may act on that statement. It grounds that principle in the wider authorities on the limits of policy (Drake, Bread Manufacturers of NSW v Evans, CPCF) to confirm that the Direction guides but does not dictate the outcome.
Still-open questions
The judgment leaves open whether, in an appropriate case, the deemed expectation could be given no weight at all, or whether the "generally" in cl 8(4) permits departure only in exceptional circumstances. Charlesworth J accepted that there may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all ([76]), but the precise metes and bounds of that departure were not explored on the facts before the Court.
A further open question is the interaction with cl 6.3 principles that appear to introduce tolerance considerations (cl 6.3(5)) or positive contributions (cl 6.3(7)). The majority placed these in the ultimate weighing exercise rather than inside the cl 11.3 assessment, but the exact weight to be given to long lawful residence or family impact when the offending is at the highest end of seriousness remains a matter for case-by-case evaluation.
The judgment does not decide whether the Minister could, by a statement outside the Direction, articulate a more specific community expectation for a particular applicant without crossing the line into unlawful dictation. Stewart J noted the possibility but expressly left it undecided ([99]). Finally, the precise content of the expectation where the character concern arises from conduct falling short of a conviction (the "unacceptable risk" limb) was not tested on these facts and may require further elucidation.
Most practitioners do not realise that the "deeming" characterisation does not freeze the ultimate outcome; it merely sets the starting weight of one primary consideration. The real forensic battleground is therefore not the content of community expectations but the relative weight of the "other considerations" listed in cl 12 and whether they are strong enough to overcome the "generally" greater weight that cl 8(4) requires be given to the primary considerations. That subtlety explains why many Tribunal decisions continue to be challenged on the basis that the expectations consideration has been treated as automatically decisive when, on a fair reading of FYBR, it is not.