What happened
Justin Hands was born in New Zealand in 1971 and arrived in Australia as an infant, either at one or three years of age. He left a violent home environment on the New South Wales South Coast at the age of 12 or 13 and was taken in by the Aboriginal community at Wallaga Lake. Over decades he was culturally accepted and recognised as a Koori man with longstanding connections to five local Aboriginal families—the Walkers, Campbells, Thomases, Henrys and Stewarts. He lived, worked and raised families within that community, playing Indigenous football, working on community projects and being regarded as a brother, partner, father and grandfather.
In October 2016 Mr Hands pleaded guilty in the Batemans Bay Local Court to property damage, stalking, intimidation and assault arising from a domestic violence incident involving his de facto partner of 12–14 years, Mariah Walker (an Aboriginal Australian), and one of her grandchildren. He was sentenced to 12 months' imprisonment with a five-month non-parole period. That sentence triggered the mandatory cancellation of his absorbed person visa under s 501(3A) of the Migration Act 1958 (Cth) on 16 February 2017, shortly before his release on parole.
While in immigration detention Mr Hands made representations seeking revocation under s 501CA(4). These were brief but consistent: he had lived in Australia since he was a baby, had no support in New Zealand, maintained a long de facto relationship with plans to marry, helped raise six step-grandchildren, had four biological children and grandchildren, worked as a labourer, and was deeply embedded in the local Aboriginal community. Supporting letters, including one from the woman he called his sister and another from Elders of the Yuin Nation, described his adoption into Indigenous families at age 12, his participation in cultural events, his raising of Indigenous children and grandchildren, and the distress his removal would cause to those children, grandchildren and the wider community. The sentencing remarks and police history showed a pattern of alcohol-related violence, largely within family settings, for which he expressed remorse.
The Assistant Minister, assisted by departmental draft reasons, decided on 9 October 2017 not to revoke the cancellation. The statement of reasons recorded that all material had been considered. It addressed the best interests of minor children as a primary consideration, the strength and duration of ties (including acceptance by the Yuin Nation and contribution to the Indigenous community), and impediments to removal. At [35] the reasons stated that while Mr Hands might experience some emotional and psychological hardship, New Zealand was culturally and linguistically similar to Australia with comparable services, and “over time he would be capable of settling in New Zealand without undue difficulty.” In the conclusion the Assistant Minister gave significant weight to the serious, recidivist and violent nature of the offending, found an unacceptable risk of reoffending, and determined that community protection outweighed the countervailing considerations, including lengthy residence, family bonds, claimed hardship and positive contributions.
Mr Hands sought judicial review. The primary judge rejected grounds alleging failure to give real consideration to Aboriginal community ties, findings without evidence, and legal unreasonableness. On appeal to the Full Court the legal unreasonableness ground was abandoned. The Full Court (Allsop CJ, Markovic and Steward JJ) allowed the appeal on the basis that the critical finding in [35] lacked any probative foundation and constituted jurisdictional error. The Court observed that all the material pointed to lifelong, crushing consequences for Mr Hands, his partner, children, grandchildren and the Aboriginal community itself. The orders quashed the non-revocation decision and remitted the matter for redetermination according to law.
Why the court decided this way
The Full Court rested its decision on a straightforward application of the no-evidence principle as a species of jurisdictional error. Allsop CJ explained at [2] that the Assistant Minister made “an important finding of fact without any underlying material or evidence to support it.” That finding—contained in the last sentence of [35] and reinforced by the opening sentence of that paragraph—was that Mr Hands “may experience short term hardship” but “would be capable of settling in New Zealand without undue difficulty.” The Chief Justice noted at [32] that the material uniformly conveyed the opposite: removal would be a “crushing blow” to Mr Hands, his partner, adult children, grandchildren, step-grandchildren and the community that had accepted him as a Koori man since adolescence. Letters spoke of devastation, distress to children growing up without their grandfather, heartbreak, and the loss of a valued community member. Nothing in the representations, supporting statements, sentencing remarks or criminal history provided a rational basis for characterising the harm as short-term or readily surmountable.
The Court emphasised that this was not a peripheral observation. At [33] Allsop CJ described the finding as lying “at the heart of his assessment of the effect of this decision on the people concerned.” It directly informed the weighing exercise in [69], where the Assistant Minister concluded that Mr Hands represented an unacceptable risk to the Australian community and that protection outweighed “his claims that he will suffer hardship and harm if returned to New Zealand … and the hardship Mr Hands, his family and social networks will endure.” A finding so central, unsupported by any evidence and contrary to the whole of the material, could not stand.
The judgment also raised, without needing to decide, a broader concern about the quality of consideration. At [2] and [47] the Chief Justice observed that the unsupported finding cast doubt on whether there had been the “required reality of consideration of Mr Hands’ circumstances.” References in the reasons to acceptance by the community were framed as a “valuable contribution” ([28], [31], [65]) rather than as the removal of an accepted member of the Aboriginal community itself. At [50]–[51] the Court noted the cultural importance of kinship and community to Aboriginal society, an appreciation now part of Australian societal awareness after the Royal Commission into Aboriginal Deaths in Custody, the Stolen Generations report and land rights jurisprudence. The representations had squarely put the fact of Mr Hands’ acceptance as a Koori man and the effect on that community. The reasons barely engaged with that dimension, treating it instead as one of several personal ties. Because the no-evidence ground succeeded, it was unnecessary to reach a concluded view on the separate ground that real consideration had not been given to the Aboriginal community claims.
Steward J at [55] expressly agreed that the hardship finding lacked any evidentiary support and that jurisdictional error followed. Markovic J agreed with Allsop CJ’s reasons in full. The Court was careful to ground every step in the text of the Assistant Minister’s reasons and the material that was before him, avoiding any suggestion that the merits of the decision were under review.
Before and after state of the law
Prior to Hands the authorities already required an active intellectual process when considering representations under s 501CA(4). Cases such as Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [43]–[47] and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [45]–[47] established that sweeping statements that all material had been considered would not immunise a decision from scrutiny if the reasons revealed a failure to engage with significant claims. Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 and Ali v Minister for Immigration and Border Protection [2018] FCA 650 reinforced the need for caution before parsing reasons too finely, yet still permitted examination of whether mandatory representations had been addressed in substance.
The Full Court in Hands did not announce a new doctrine. Rather, it applied the existing no-evidence rule to a concrete factual finding at the centre of the statutory weighing exercise. The decision reinforced that where a finding is critical to the evaluative judgment required by s 501CA(4)(b)(ii)—whether “another reason” exists to revoke—the finding must rest on some probative material. The Court also gave concrete content to the obligation of “real consideration” in the Indigenous context. By highlighting at [50] that kinship and community lie at the heart of Aboriginal society, the judgment made clear that executive decision-makers must confront that reality when it is squarely raised, rather than subsume it under generic headings such as “strength, nature and duration of ties.”
After Hands, decision-makers and departmental drafters could no longer assume that generalised references to “hardship,” “ties” or “contribution to the Indigenous community” would suffice if the reasons minimised consequences in the face of unanimous contrary material. The requirement to “honestly confront what is being done to people” ([3]) became a touchstone for assessing whether the statutory power had been exercised lawfully. The case also illustrated that the gravity of consequences for long-term absorbed persons, especially those with deep Aboriginal community belonging, must be weighed with eyes open to cultural realities recognised in Australian law and society for decades.
Key passages with plain-English translation
At [3] Allsop CJ wrote: “Genuine consideration of the human consequences demands honest confrontation of what is being done to people.” In plain English, when the law gives a minister power to send someone away from the only home and family they have ever known, the minister must actually face up to the human cost rather than rely on bureaucratic formulas.
The core ratio appears at [2]: “the decision has been affected by jurisdictional error [because of] the making of an important finding of fact without any underlying material or evidence to support it.” Translation: if the minister’s written reasons rest on a key factual conclusion that nothing in the file supports, the court can set the decision aside even if the minister says all material was considered.
At [32] the Chief Justice examined [35] of the Assistant Minister’s reasons and concluded there was “nothing in the material that could permit a rational finding that Mr Hands ‘may experience short term hardship’ … the only conclusion reasonably open would be that the removal of Mr Hands would in all likelihood be a crushing blow.” This passage translates the legal concept of “no evidence” into concrete terms: when every letter, every submission and every sentencing remark screams lifelong devastation, a decision-maker cannot lawfully write “short term” without pointing to something that justifies that description.
Paragraph [50] contains an important cultural observation: “it is surely now part of Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour.” In plain language, after decades of Royal Commissions, inquiries and land rights cases, officials can be expected to understand that removing an accepted member of an Aboriginal community is not just a personal hardship but an act that tears at the fabric of that community.
Finally, [47] links the two grounds: “The fact that this could be said raises doubt that those drafting the reasons and the Minister adopting them have considered the whole human consequences of the decision, and thus whether real consideration was given to the totality of the representations. It is sufficient to rest, however, on the conclusion that a central finding of fact was made without any probative foundation.” Translation: the unsupported finding is enough to win the case, but it also hints that the whole decision-making process may have been too superficial.
What fact patterns trigger this precedent
Hands is triggered when three elements coincide in a s 501CA(4) revocation case. First, the representations and supporting material must uniformly point to profound, long-lasting harm—especially harm to family relationships, children, grandchildren and an Aboriginal community that has accepted the person as one of its own. Second, the minister’s reasons must contain a material finding that minimises that harm (most obviously by describing it as “short term” or manageable through generic social services) without identifying any evidence that could rationally support the minimisation. Third, that finding must be central to the ultimate weighing of whether “another reason” exists to revoke.
The precedent is not limited to Indigenous applicants, but the judgment gives it particular force where community acceptance as a Koori or other Aboriginal or Torres Strait Islander identity is squarely raised. Fact patterns involving long-term absorbed person visa holders who arrived as infants, have spent their entire adult lives in one geographic Indigenous community, and produce letters from Elders and family describing cultural belonging and the anticipated distress to children and grandchildren are the clearest triggers. Conversely, where the material before the minister contains conflicting evidence or where the reasons carefully explain why certain claims are given limited weight by reference to identified parts of the file, Hands will not assist.
The case also applies whenever departmental reasons adopt a checklist or template approach that recites “I have considered all the material” but then makes a critical factual assertion at odds with everything supplied. Because the Full Court emphasised the need for honest confrontation of human consequences, any reasons that use pre-digested shorthand to downplay lifelong psychological, cultural and familial rupture in the face of consistent evidence to the contrary will attract scrutiny.
How later courts have treated it
The judgment itself cites and builds upon earlier Full Court authorities such as Carrascalao, Stretton and WAEE to reinforce the requirement of real consideration. It treats those decisions as establishing that formulaic statements do not shield reasons from examination and that the court must ask whether the decision-maker has in substance engaged with the gravamen of the representations. Subsequent courts have therefore read Hands as an application, rather than a radical extension, of those principles to the specific context of unsupported minimisation of harm.
Within the migration jurisdiction Hands is routinely cited for the proposition that a central factual finding must have some probative foundation. It is treated as confirming that the “no evidence” ground remains available and potent in s 501CA(4) cases even after the introduction of statutory limits on other grounds of review. Courts have accepted that the obligation to confront “what is being done to people” is not mere rhetoric but a legal standard against which the adequacy of reasons is measured, particularly where Aboriginal community membership is asserted.
The decision has also informed the weight given to cultural evidence. Later judgments have referred to the passage at [50] when emphasising that decision-makers cannot treat Aboriginal community acceptance as merely another “tie” but must appreciate its deeper significance. The Full Court’s refusal to decide the separate “real consideration” ground has left room for argument in future cases that inadequate engagement with Indigenous kinship claims can itself vitiate a decision, but the primary ratio—jurisdictional error through an unsupported central finding—has been applied without hesitation.
Still-open questions
The Full Court expressly left open whether the unsupported finding also demonstrated a broader failure to give real consideration to the totality of the representations. Allsop CJ noted at [2] and [47] that such an error “may be that that error discloses such a failure to appreciate the gravity of the consequences … It is unnecessary to go so far.” Future cases will need to explore the boundary between a discrete no-evidence error and a more systemic failure to engage with the human and cultural consequences.
A further open question is the precise content of the obligation to consider the effect on an Aboriginal community when a person accepted as a member is removed. The Court at [51] described Mr Hands’ place in the community and the effect of his removal as “matters of significant importance” that were “not considered or barely considered.” It is not yet settled whether this rises to the level of a mandatory relevant consideration in every case where community acceptance is asserted, or whether it remains an aspect of the broader requirement of genuine consideration. The judgment noted that no Native Title or specific statutory rights were claimed, leaving that avenue unexplored.
The interaction between the Hands principle and the statutory direction in Direction No 65 (or its successors) to treat community protection as a primary consideration also remains to be fully worked through. The Assistant Minister in Hands gave “significant weight” to the risk of reoffending and found it outweighed even “strong countervailing considerations.” Whether an unsupported minimisation of harm can ever be cured by heavy reliance on protection of the community is unresolved.
Finally, the evidentiary threshold for a “rational” finding of short-term hardship remains open. The Court in Hands found the material so overwhelmingly one-sided that no rational decision-maker could reach the minister’s conclusion. In cases with more mixed evidence, courts will continue to debate how much material is required before a finding of limited long-term impact can lawfully be made. These questions ensure that Hands remains a living precedent rather than a closed chapter.