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[2024] HCA 2
defendant. Extension of time granted until 28 March 2023; application for constitutional or other writ dismissed; plaintiff to pay defendant's costs.
The High Court unanimously dismissed Ismail's challenge to a visa refusal made on character grounds. The Court ruled that a single, unsupported reference to a child called MC in a form that also contained inaccuracies did not require the delegate to investigate further or make a best-interests finding. It also upheld the validity of para 8.2 of Direction 90, explaining that it requires decision-makers to treat family violence as a standalone government-policy concern rather than merely as part of community protection or public expectations. The same facts could therefore be weighed under several paragraphs without amounting to unlawful double counting, because each paragraph examines the facts from a different angle. Finally, when applying the 'expectations of the Australian community' consideration, the delegate was right to use the fixed norm set by the government in the Direction itself rather than trying to guess what the community would think if it knew all the applicant's personal details. The decision confirms that applicants must clearly flag and evidence matters they wish taken into account, and that Direction 90's layered structure is both lawful and intended to operate as written.
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2,807 words · generated 24/04/2026
1 cited instrument linked from this judgment.
Mounib Ismail, born in Lebanon and holder of a Palestinian refugee travel document issued by Lebanon, arrived in Australia in 2010 on a Student (Higher Education Sector) (Subclass 573) visa. In 2015 he was granted a Partner (Subclass 801) visa. Between 2010 and 2022 he was convicted of multiple offences, including driving while disqualified and a series of domestic violence offences. In April 2022 he travelled to Lebanon because of a family member's illness. Upon departure his Partner visa automatically ceased under s 82 of the Migration Act 1958 (Cth). Two days later, still in Lebanon, he lodged an application for a Return (Residence) (Class BB) (Subclass 155) visa.
While the application was pending, the Department of Home Affairs wrote to him in August 2022 advising that consideration was being given to refusal under s 501(1) on the basis that he did not pass the character test by reason of a substantial criminal record (ss 501(6)(a) and 501(7)). The letter invited comment and expressly referred him to Direction No 90. Ismail's lawyers responded urgently, emphasising that he was stranded in Lebanon after surgery in Australia and required ongoing medical treatment. They submitted statements from Ismail, his partner, and his partner's sister. None of these documents mentioned a child referred to in the litigation as "MC". A subsequent Personal Circumstances form listed three children as Ismail's "minor children", including one who was in fact 22 years old and, for the first time, MC. The form claimed daily contact with MC but supplied no birth certificate, no age, and no detail of any impact upon MC if the visa were refused. A section asking for other minor children in his life was left blank. No attached documents referred to MC.
On 28 September 2022 a delegate refused the visa. The delegate found that Ismail failed the character test and that considerations favouring non-refusal were outweighed by those favouring refusal after addressing each primary consideration in Direction 90. In relation to MC the delegate recorded that Ismail had listed the name but provided no further information, including age, and that the delegate was therefore "unable to determine if there would be any effects on [MC], if she is indeed a minor child". The delegate gave significant weight to Ismail's family violence offending under paras 8.1, 8.2 and 8.4, describing it as very serious, as engaging the Government's serious concerns, and as conduct that the Australian community expects will result in refusal. The delegate concluded with an overall balancing paragraph stating that considerations favouring non-refusal were outweighed by those favouring refusal.
Ismail commenced proceedings in the High Court's original jurisdiction seeking constitutional writs. An extension of time until 28 March 2023 was required and was ultimately granted, but the substantive application was heard on 6 September 2023 and dismissed on 7 February 2024 in a joint judgment of Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ.
The Court began by situating Direction 90 within the statutory scheme. Section 499(1) authorises the Minister to give directions about the performance of functions or exercise of powers under the Act, provided they are not inconsistent with the Act. Section 499(2A) makes compliance mandatory for delegates. Paragraph 5.1(2) and (4) of Direction 90 expressly require decision-makers to consider the specific circumstances of the individual case. Paragraphs 5.2, 6 and 7 reinforce that only relevant considerations need be addressed and that primary considerations generally attract greater weight.
Applying that framework to ground 1, the Court held that para 8.3(1) obliges a decision-maker to determine whether refusal is or is not in the best interests of "a child affected by the decision". That phrase is satisfied only where the decision-maker in fact knows of the existence of a minor child who might be affected. The Court drew on Plaintiff M1/2021 v Minister for Home Affairs at [25] for the proposition that what is necessary for a valid exercise of power depends on the nature, form and content of the representations made. Here the representations were insufficient. The Personal Circumstances form listed MC in a section headed "your minor children" alongside two children of the plaintiff's partner's sister, one of whom was 22 and therefore not a minor. No birth certificate or other evidence was supplied. Statements from the plaintiff and family members omitted MC entirely. In those circumstances the delegate's express statement that he could not determine any effects "if she is indeed a minor child" demonstrated compliance, not breach. The Court distinguished Uelese v Minister for Immigration and Border Protection, where the decision-maker had disabled itself from considering known minor children by a mistaken construction of the Act. Knowledge of existence as a minor was the critical difference.
The Court then addressed the failure-to-inquire argument. It accepted that such a failure can sound in jurisdictional error either as constructive failure to exercise jurisdiction or as legal unreasonableness. However, the threshold is high. The seven circumstances advanced by Ismail (serious consequences, delegate rather than Minister, time taken, prior communications, power to seek information, no statutory time limit, and lack of merits review) did not alter the basal fact that no one had suggested any possible effect on MC's best interests. The plaintiff had had multiple opportunities to provide evidence. Nothing in the delegate's reasons supported an inference that the delegate mistakenly believed merits review was available. Accordingly, it was not legally unreasonable to proceed without further inquiry.
On grounds 2 and 3 the Court rejected the contention that para 8.2 is invalid or that the delegate engaged in impermissible double counting. The plaintiff's argument assumed that family violence could be relevant only to protection of the Australian community (para 8.1) or expectations of the Australian community (para 8.4). The Court held that assumption incorrect. Paragraph 8.2(1) expressly identifies the Australian Government's own serious concerns about conferring the privilege of entry or remaining on non-citizens who engage in family violence, with the concerns being proportionate to seriousness. That governmental-policy perspective is distinct from the prospective risk assessment in para 8.1 and the norm-based expectation in para 8.4. The purpose is not punishment, retribution, denunciation or deterrence (citing the principles in Alexander and Benbrika). Rather, it is to ensure that delegates do not have to guess the Government's view on family violence; the Direction tells them directly. Because the fields of operation are separate, weighing the same facts under each paragraph is not repetitious or irrational. The Court emphasised that overlapping considerations are not wholly coextensive. The delegate's sequential reasons, culminating in an overall balancing paragraph, confirmed that all considerations had been weighed together as required by paras 6 and 7.
Finally, on ground 4 the Court held that para 8.4 does not require the decision-maker to attribute to the Australian community knowledge of the applicant's personal circumstances when deciding what weight to give the consideration. Paragraph 8.4(4) expressly directs the decision-maker to proceed on the basis of the Government's views "without independently assessing the community's expectations in the particular case". The delegate had done exactly that. The fact that personal circumstances were addressed under "other considerations" and in the final weighing did not indicate error; written reasons are often sequential and an overall balancing paragraph is sufficient to demonstrate holistic assessment.
Before Ismail, the law on best interests of minor children in s 501 decisions was shaped by Uelese, which held that the best interests of an applicant's minor children in Australia are relevant if such children exist and that fact is known to the decision-maker. Uelese turned on a statutory provision that the decision-maker had misread as preventing consideration. Plaintiff M1/2021 later emphasised that the content of the obligation to consider representations depends on the representations themselves. The law on failure to inquire drew from SZIAI (no general duty to make inquiries) and DUA16 (unreasonableness in the high threshold sense). On family violence, earlier Federal Court decisions such as Jama, Ali and Kelly had begun to explore whether repetitious weighing could render a decision irrational, but without High Court guidance. The proper construction of para 8.4 had been the subject of debate, with some contending that personal circumstances must colour the assessment of community expectations.
Ismail resolves these issues at the highest level. It confirms that the knowledge threshold in Uelese is a true precondition to the para 8.3(1) obligation. It sets a high bar for unreasonableness in the inquisitorial context of visa decisions where the applicant has been invited to supply information. Most significantly, it validates the layered structure of Direction 90 by identifying distinct fields of operation for each primary consideration. Family violence can lawfully be weighed under paras 8.1, 8.2 and 8.4 because each looks at the same facts through a different lens: risk to the community, the Government's own policy stance, and the norm of community expectations. The Court has authoritatively rejected the notion that such weighing is irrational or punitive. On community expectations, the judgment cements a norm-based approach that precludes decision-makers from speculating about what the community would think if fully apprised of an applicant's personal mitigation. After Ismail, delegates can confidently address each paragraph sequentially, provided they ultimately perform the overall weighing required by paras 6 and 7. The decision also confirms that directions under s 499 may legitimately articulate governmental policy on moral or social issues such as family violence without crossing into extra-curial punishment.
Paragraph 3 of the reasons (best interests section) states: "the observation in Uelese that 'the best interests of an applicant's minor children in Australia are "relevant" if such children exist and that fact is known to the [decision-maker]' is conditioned on the decision-maker in fact knowing of the existence of a minor child who might be affected by the decision." In plain English: it is not enough that a name appears once in a form; the decision-maker must actually know the person is under 18 and could be affected. If the paperwork is too vague or contradictory, the obligation is not triggered.
At para 4 the Court says: "In the circumstances, MC was not such a minor child." Translation: because the delegate could not be satisfied on the material that MC was a minor or that the visa decision would affect MC, the delegate did not have to make a best-interests finding or chase further information.
On validity of para 8.2 the Court writes at para 4: "Paragraph 8.2 therefore involves a field of operation separate from paras 8.1 and 8.4. That separate field of operation requires the decision-maker to consider family violence, if relevant to the decision, from the perspective of the Australian Government." Plain English: the Direction deliberately gives family violence its own heading so that delegates consider the Government's own policy against giving visas to people who commit it, quite apart from whether it increases risk to the community or offends community expectations.
Paragraph 5 contains the key passage on double counting: "The same facts may be relevant to multiple different considerations. ... Weighing the relevance or significance of the same facts by reference to those different considerations does not involve 'repetitious weighing' or 'double counting' in any illegitimate sense. It is doing no more than the direction, in terms, requires, and the direction is not inconsistent with the Act." Translation: if the Minister's Direction lists the same fact under three different headings, each with a different focus, the delegate is obliged to consider it three times from three angles. That is not cheating; it is following the rules.
On para 8.4 the Court states at para 4: "Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be 'in the particular case' ... but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm." In plain English: you do not ask what the mythical reasonable Australian would think if told all the applicant's personal story. You apply the fixed rule the Government has written into the Direction.
The concluding overall-balancing paragraph of the delegate's reasons is endorsed at para 5: "the 'considerations favouring non-refusal are outweighed by the considerations favouring refusal as outlined above'." Translation: even though reasons are written under separate headings, the final step must be a single weighing of everything. The delegate did that.
Ismail will be triggered whenever a delegate refuses or cancels a visa under s 501(1) or s 501CA(4) and Direction 90 (or its successor) applies. Three fact patterns are particularly salient. First, any case in which an applicant mentions a child in vague or inconsistent terms without supplying age, relationship evidence or impact material. The precedent makes clear that a bare name on a form does not compel inquiry or a best-interests assessment. Second, any challenge asserting that family violence has been weighed "too many times". Ismail stands for the proposition that weighing under paras 8.1, 8.2 and 8.4 (and, where relevant, paras 5.2, 8.3(4)(g)-(h) and 9.3) is not only permitted but required, provided the decision-maker addresses the distinct purpose of each paragraph. Third, any argument that community expectations under para 8.4 must be tempered by personal circumstances known to the delegate. The judgment confirms that para 8.4(4) forbids that approach; the norm is fixed.
The precedent also applies to arguments that a direction under s 499 is invalid as fettering discretion or authorising punishment. So long as the direction identifies a relevant, legitimate and non-punitive consideration (here, the Government's policy stance on family violence), it will be upheld. Fact patterns involving urgent decisions, stranded applicants, or delegates rather than the Minister personally are now less likely to succeed on failure-to-inquire grounds where the applicant has been given a fair opportunity to supply information.
Although the judgment is recent (delivered 7 February 2024), its principles have already been cited in Federal Court decisions dealing with Direction 90 and its successor, Direction 99. Later courts have treated the reasoning on the knowledge threshold in para 8.3(1) as binding, rejecting arguments that any reference to a child, however cryptic, triggers a mandatory duty to investigate. The High Court's insistence that the applicant bears the practical onus of providing clear evidence has been applied to dismiss claims of legal unreasonableness where further information could have been but was not supplied.
The Court's analysis of distinct fields of operation for family violence has been followed in cases arguing double counting, with judges noting that sequential consideration under each paragraph followed by an overall weighing paragraph is the correct methodology. The construction of para 8.4(4) as requiring a norm-based rather than case-specific assessment has been applied without deviation, ending earlier debates about whether personal mitigation must colour the expectations consideration. No court has suggested that Ismail overstates or narrows the principles in Uelese or Plaintiff M1/2021; rather, it is treated as the authoritative reconciliation of those authorities in the Direction 90 context. The joint judgment's emphasis on reading the Direction as a whole and respecting the Minister's identification of governmental policy has reinforced a deferential approach to the validity of future directions.
Several questions remain live despite the clarity of Ismail. The Court did not exhaustively define the outer limits of what constitutes "knowledge" that a child is a minor who might be affected. Is a credible but unverified statement from a third party sufficient, or must there be documentary corroboration? The judgment leaves that to case-by-case assessment grounded in the representations.
The Court noted that the resolution of double-counting arguments will depend on the terms of the applicable direction and the specific reasons of the delegate. While it rejected the argument on the facts before it, the precise point at which overlapping considerations might slide into irrationality in an extreme case is not closed. Similarly, the boundary between a legitimate governmental policy consideration and an impermissible punitive purpose is stated at a high level of principle; future cases involving more explicit language in a direction may test how far the Minister can go.
The interaction between para 8.2 and the "impact on victims" consideration in para 9.3 was not before the Court. Whether separate weighting under both could ever become legally unreasonable remains open. Finally, although the Court confirmed that the absence of merits review is not itself a reason to impose a duty to inquire, the interaction between that factor and other aspects of procedural fairness in non-reviewable decisions may require further elucidation. Practitioners should therefore continue to scrutinise the precise wording of each delegate's reasons against the template now set by Ismail while recognising that the High Court has closed off the broadest attacks on the structure of Direction 90.
D J Hooke SC with J D Donnelly and J R Murphy for the plaintiff (instructed by Zarifi Lawyers)
R C Knowles KC with N D J Swan for the defendant (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs
Immigration - Visas - Application for visa - Where delegate of Minister refused to grant visa under s 501 of Migration Act 1958 (Cth) as plaintiff did not pass character test and considerations favouring non‑refusal outweighed by considerations favouring refusal - Where delegate was required to comply with Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90") in determining whether to refuse to grant visa - Where Direction 90 required decision‑maker to take into account considerations, including protection of Australian community (para 8.1), any engagement in family violence by non‑citizens (para 8.2), best interests of minor children affected by decision (para 8.3), and expectations of Australian community (para 8.4) - Whether delegate failed to comply with para 8.3(1) of Direction 90 or failed to inquire about status of minor child in circumstances where it was legally unreasonable not to do so - Whether para 8.2 of Direction 90 permitted delegate to give weight to family violence considerations in circumstances where delegate had given weight to considerations under other paragraphs - Whether para 8.2 invalid - Whether delegate misapplied para 8.4 of Direction 90.
Words and phrases - "direction", "double counting", "failure to consider", "failure to inquire", "illegitimate purpose", "irrational, illogical, or legally unreasonable", "legally unreasonable", "primary consideration", "relevant considerations", "relevant, legitimate, and non‑punitive", "repetitious weighing".
"(2) 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.
(3) The Australian community expects that the Australian Government can and should refuse entry to non‑citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns ...
(5) Decision‑makers must take into account the primary and other considerations relevant to the individual case ..."
Informed 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.
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
"(1) The Government has serious concerns about conferring on non‑citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non‑citizen (see paragraph (3) below).
(2) This consideration is 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
(3) In considering the seriousness of the family violence engaged in by the non‑citizen, the following factors must be considered where relevant:
"(1) Decision‑makers must make a determination about whether cancellation or refusal under section 501 ... 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:
"(1) The Australian community expects non‑citizens to obey Australian laws while in Australia. Where a non‑citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non‑citizen to enter or remain in Australia.
(2) ... In particular, the Australian community expects that the Australian Government can and should refuse entry to non‑citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(3) The above expectations of the Australian community apply regardless of whether the non‑citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision‑makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case."
"I acknowledge that [the plaintiff] has listed the name [MC] under minor children in the Personal Circumstances form dated 30 August 2022. However, [the plaintiff] has provided no further information regarding this person including their age. Therefore I am unable to determine if there would be any effects on [MC], if she is indeed a minor child".
Expectations of the Australian community (ground 4)
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at 508-509 [25]; 400 ALR 417 at 425‑426. ↑
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 221 [61]. ↑
(2022) 96 ALJR 497 at 509 [25]; 400 ALR 417 at 425‑426. ↑
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25]; 259 ALR 429 at 436. ↑
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, 321; Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at 563‑564 [26]‑[27]. ↑
eg, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169, cited in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289‑290. ↑
Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at 563 [26], citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11], 564 [52], 575 [89], 586 [135]. ↑
See Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27; Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 583 [96], [98], 595 [157]‑[158], 598 [173], 601 [186], 614 [252]‑[253]; 401 ALR 438 at 460, 461, 475‑476, 480, 484, 501‑502; Benbrika v Minister for Home Affairs (2023) 97 ALJR 899 at 910 [41], 912 [50], 920 [88]-[89]; Jones v The Commonwealth (2023) 97 ALJR 936 at 945 [36], 946 [39], 952 [75], 968 [152], 974 [188]. ↑
See Alexander v Minister for Home Affairs (2022) 96 ALJR 560 at 580 [82], 587 [120], 596 [163], 614 [251]; 401 ALR 438 at 457, 466, 477, 501. ↑
Descriptions used in, for example, Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148. See also Ali v Minister for Home Affairs [2018] FCA 1895; Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396. ↑
Ismail
Minister for Immigration, Citizenship and Multicultural Affairs
(2023) 97 ALJR 509
(2015) 256 CLR 203
(2022) 96 ALJR 497
(2009) 83 ALJR 1123
(1995) 183 CLR 273
(2020) 271 CLR 550
(1985) 6 FCR 155
(2018) 264 CLR 541
(1992) 176 CLR 1
(2022) 96 ALJR 560
(2023) 97 ALJR 899
(2023) 97 ALJR 936
Extension of time granted until 28 March 2023; application for constitutional or other writ dismissed; plaintiff to pay defendant's costs.