The applicant overlooks the disjunctive "or" in subs 501CA(4)(b). Consistently with the ordinary meaning of the subsection, nowhere in s 501CA, or any other provision of the Act, is the Tribunal limited only to a decision under s 501CA(4)(b)(ii). The applicant's submission is inconsistent with the general principle that the Tribunal stands in the shoes of the delegate to do what they did, in circumstances where the delegate made their decision under s 501CA(4). When completing its task, the Tribunal exercises the same power or powers as the primary decision-maker, subject to the same constraints: Frugtniet v Australian Securities & Investments Commission[2019] HCA 16; (2019) 266 CLR 250 at [51] (Bell, Gageler, Gordon and Edelman JJ).
The applicant also contends that the Tribunal misunderstood and misapplied the statutory framework under s 501CA(4) by treating its task as if it were a fresh visa refusal under s 501(1). The Minister submits, and I accept, that this is an unfair reading of the Tribunal's reasons. It is plain from the Tribunal's reasons that it understood that its overall task was to decide an application for review of a decision by the Minister's delegate made under , and it completed that task correctly.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.
Parties
Applicant/Plaintiff:
Lal
Respondent/Defendant:
Minister for Immigration and Citizenship [2025] FCA 1396
Legislation Cited (1)
Court Rules 2011
Cases Cited (8)
When considering his ties to Australia, the Tribunal stated:
The applicant arrived in Australia on 5 October 2005. He was 19 years old at the time. The applicant has lived in Australia for 19 years. He has twice travelled to Fiji to visit relatives, once on the occasion of his father's funeral. It is his evidence that he had a falling out with his siblings at the funeral and has had no contact with his brother and sister since that time. Both his brother and sister are residents of Fiji.
The applicant has no immediate family members who reside in Australia. His former partner who was the victim of the family violence offences no longer supports his application and was not a witness in these proceedings. He states in oral evidence to the Tribunal that he has no further contact with her. His adult son from a previous marriage is 20 years old and resides in Spain. The applicant states in evidence that he has no contact with him.
I have taken into account the applicant's submission that he has resided in Australia for more than half of his life and I have taken into account the witness statement written in support of his application by Abbas Jafari Rahaghi. Mr Jafari Rahaghi is willing to offer the applicant a room in his two bedroom apartment in which he resides with his wife and young daughter. Mr Jafari Rahaghi and the applicant have plans to open a transport business together. I accept the applicant's evidence that he will be offered accommodation in the event of a revocation. I accept that his friend and witness Mr Jafari-Rahaghi will be somewhat affected if the applicant is removed to Fiji.
Mr Jafari Rahaghi was the only witness before the Tribunal other than the applicant. There were no witness statements or other evidence from the nine family members listed in the applicant's Personal Circumstances Form. Nor was there any evidence from Ms Naidu, the applicant's former partner. When explaining its overall weighing and conclusions, the Tribunal referred to each primary and other consideration it had considered earlier in its reasons: [134]-[139].
The Tribunal's overall conclusions were expressed as follows:
As a result, another reason the original decision should be revoked has not been established for the purposes of s 501CA(4)(b)(ii).
As the applicant does not pass the character test as defined by s 501 for the purposes of s 501CA(4)(b)(i) and another reason to revoke the cancellation has not been established for s 501CA(4)(b)(ii) the decision not to revoke the cancellation of the visa is affirmed.
Four grounds are relied on by the applicant. Ground 1 contends that the Tribunal erred by failing to refer to or consider a one-page letter dated 29 December 2023 signed by the applicant's former partner, Ms Naidu, also known as Ms Lata (who was the victim of the offences resulting in the applicant's substantial criminal record). The letter was supportive of the applicant. This failure is said to relate to para 8.3(2)(b) of Direction 110 (the strength, duration and nature of any family or social links with Australian citizens). This ground also refers to nine other members of the applicant's family, but they are not referred to in or signatories to that letter.
It is true that the Tribunal's reasons do not refer to the letter from Ms Naidu. Rather, the Tribunal found, consistently with the applicant's evidence, that Ms Naidu no longer supports his application, and he has no further contact with her. It is important to recognise the timing of the letter (dated 29 December 2023), being about 18 months before the hearing before the Tribunal (on 11 and 12 June 2025). It was provided for the purposes of the delegate's decision. The letter does not say if Ms Naidu is an Australian citizen, permanent resident, or has an indefinite right to stay in Australia such that the letter would have been relevant under para 8.3(2)(b).
Given the applicant's evidence, the relationship has ended, and Ms Naidu was not an "immediate family member" for the purposes of para 8.3(1). The applicant represented in relation to Ms Naidu in his Personal Circumstances Form that "she has no other family in Australia". The Tribunal must take into account the considerations stated in Direction 110 only "where relevant to the decision" and "to the extent relevant in the particular case": paras 6 and 5.2 respectively.
The Minister submits, and I accept, that the letter was either irrelevant to the Tribunal's decision (because there was no evidence that para 8.3(2)(b) applied to Ms Naidu or because the link between her and the applicant had ceased) or the Tribunal considered that link to the limited extent that it remained relevant by considering the most recent evidence available to it, and it was unnecessary for it to refer to the letter.
The Tribunal need not refer to every piece of evidence, and the finding that it might have made about the letter was, in effect, subsumed within its finding about the most recent evidence: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47] (French, Sackville and Hely JJ).
Ground 1 also contends that the letter was relevant to the applicant's "rehabilitation prospects". This is presumably a reference to the following part of the letter:
The Tribunal considered the applicant's rehabilitation prospects elsewhere in its reasons under para 8.1 (protection of the Australian community):[77], [81] (sixth dot point), [86]. Significantly, the Tribunal's assessment of the applicant's oral evidence was that his remorse was doubtful because he still demonstrates a tendency to minimise his offending and to blame extraneous circumstances: [86]. Similarly, the Tribunal saw other evidence of the applicant's religious faith as of limited probative value: [112]. In this context, the letter is not of such significance that there was any requirement that the Tribunal refer to it.
The Tribunal's reasons also do not refer to the applicant's nine other family members, who were listed in a Personal Circumstances Form. In the form, the applicant listed their nationalities as "Australian" and their country of residence as "Australia". Assuming, for the purpose of analysis that para 8.3(2)(b) applied to the nine other family members referred to in this ground, there was no evidence from these family members or other evidence about their links to the applicant before the Tribunal. The Tribunal thus had no basis to assess the strength, duration and nature of those links. Further, the Tribunal was not required to consider a reason in favour of revocation not in fact put by the applicant: Sowa v Minister for Home Affairs[2019] FCAFC 111 at [43] (Jagot, Bromwich and Thawley JJ).
The absence of evidence and argument distinguishes the Tribunal's decision from PQSM v Minister for Home Affairs[2020] FCAFC 125; (2020) 279 FCR 175 (PQSM), which the applicant relies upon. The evidence before the Tribunal in PQSM included direct evidence from the appellant, his partner and the two adult children, including oral evidence to the Tribunal: see [74] of PQSM.
Accordingly, I reject ground 1.
Ground 2 contends that the Tribunal misconstrued and misapplied para 8.5 of Direction 110 (expectations of the Australian community) in two ways: first, by making its own finding about the expectations of the Australian community; and second, by repeating matters considered under para 8.1 (protection of the Australian community) under para 8.5, and thereby distorting the statutory balancing required under
In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs[2024] HCA 2; (2024) 280 CLR 265 (Ismail) at [52] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ), the High Court explained the identically worded para 8.4(4) of Direction 90 as follows:
In submitting that the Tribunal used the same factual findings on offending to justify community expectations and thereby distorted the statutory balance required under s 501CA(4), the applicant's argument is strikingly similar to the submission rejected in Ismail, and should be rejected for the same reasons.
This ground also relies on XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2022] FCAFC 74, but that case supports the proposition that the Tribunal is not usually required to take a matter relevant to two or more mandatory relevant considerations into account repetitiously: at [53] (Bromberg, Stewart and Goodman JJ). That case does not support the proposition contended for by the applicant that the Tribunal cannot do so. In his written submissions, the applicant also refers to FYBR v Minister for Home Affairs[2019] FCAFC 185. Contrary to the applicant's submissions, that case does not stand for the proposition that para 8.5 is distinct in purpose and must not be used to replicate or reinforce the same reasoning as para 8.1. The paragraphs referred to by the applicant (namely [93] and [106] per Stewart J) do not say that, nor is the proposition to be found elsewhere in the Full Court's reasons.
Accordingly, I reject ground 2.
Ground 3 contends that the Tribunal erred by failing to properly apply and give effect to para 9.2 of Direction 110 (extent of impediments if removed) in two ways: first, by primarily focusing on the legal consequences of cancellation; and second, by failing to engage with and consider evidence of the applicant's mental health and fears of returning to Fiji, particularly in light of para 9.2.
The Tribunal referred to the legal consequences of its decision, primarily whether the applicant would be subject to the s 501E bar on further visa applications and any special return criteria: [126]-[128]. The Tribunal then considered the extent of impediments if the applicant was removed to Fiji as follows:
I have considered the extent of any impediments that the applicant will face, if removed from Australia to Fiji. The applicant contends that if he is removed he will face "the risk of irreparable physical, psychological and emotional harm." 21 I have taken into account his diagnoses of depression and anxiety and that he takes medication for his depression. There is no evidence before me that would lead me to conclude that the applicant cannot access health services in Fiji and while I accept that the applicant will face some hardship reintegrating into Fijian society, he is likely to experience limited hardship, for cultural or linguistic reasons, as he lived in Fiji until he was an adult, 19 years of age. I am also satisfied that, as an educated man, he is adept at re-acclimatising.
When considering the expectations of the Australian community, the Tribunal stated as follows:
In relation to this consideration, 8.5(1) of the Direction states:
I have considered his submission that Fiji is a 'third world island nation' and that he may die if he returns to Fiji. I am of the view that he has shown considerable resilience in establishing himself in a foreign country, Australia, and that he will likely gain employment and be able to financially support himself should he be removed to Fiji.
He does have family in Fiji, a brother and sister, but I accept his evidence that he is estranged from his siblings and that it is unlikely that he would be able to lean on immediate family for support or accommodation. However, for the reasons set out above I am of the view that he does have income earning capacity and will be able to gain employment to support himself and house himself if necessary.
I find that this consideration weighs moderately in favour of the decision to revoke.
At the heart of the applicant's submissions appears to be a formatting error made by the Tribunal. The subheading "Extent of impediments if removed to Fiji" wrongly appears immediately before paras [126]-[128], where the Tribunal gives consideration to the legal consequences of the decision under para 9.1, rather than appearing immediately before [129]-[132], where the Tribunal dealt with the extent of impediments if removed to Fiji under para 9.2.
The applicant accepts that if the error is properly characterised as merely a formatting error, then that is a trivial matter of no consequence. I agree. Further, the error is obviously a formatting error, as any sensible reader would realise that paras [126]-[128] were concerned with the legal consequences of the decision under para 9.1, and the analysis of the extent of impediments if removed to Fiji began at [129]. Accordingly, there is no basis for the applicant's contention that the Tribunal was primarily or exclusively focused on the legal consequences of the decision when it gave consideration to the extent of impediments if removed to Fiji pursuant to para 9.2.
The applicant also submits that the Tribunal failed to deal with uncontested evidence about the applicant's mental health, his twenty years of living in Australia, and the circumstances he would face if removed to Fiji. On the contrary, the Tribunal considered this evidence and these representations at [129]-[132], which I have extracted above. Notably, the Tribunal also quoted from and footnoted the applicant's three-page statement with specific reference to the fourth of its fifth numbered sections dealing with the applicant's alleged lack of support in Fiji in terms of family and community support, accommodation, health care and the claimed stigma surrounding mental health issues in Fiji: [129]. I infer that the Tribunal considered that statement in its entirety.
Earlier in its reasons, the Tribunal also considered: