LRMM v Minister for Immigration and Multicultural Affairs - [2025] FCA 51 - FCA 2023 case summary — Zoe

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LRMM v Minister for Immigration and Multicultural Affairs

[2025] FCA 51

Federal Court of Australia|2023-10-06|Before: Mr J, Collier J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2023-10-06

Before

Mr J, Collier J

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

THE COURT ORDERS THAT:

The name of the first respondent be amended to "Minister for Immigration and Multicultural Affairs".
A writ of certiorari be directed to the second respondent, quashing its decision made on 6 October 2023.
A writ of mandamus be directed to the second respondent requiring it (differently constituted) to determine the applicant's application for review according to law.
The first respondent pay the applicant's costs, to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLIER J:
Before the Court is an amended application for judicial review of a migration decision of the Administrative Appeals Tribunal (Tribunal), which affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (Minister) not to revoke the mandatory cancellation of the applicant's visa. The applicant contends, in summary, that the delegate misunderstood and misapplied Ministerial Direction 99 (Direction 99) in its consideration of:
the nature and seriousness of the applicant's conduct to date pursuant to para 8.1.1 of Direction 99;
the strength, nature, and duration of the applicant's ties to Australia pursuant to para 8.3 of Direction 99; and
the expectations of the Australian community pursuant to para 8.5 of Direction 99.
The applicant contends that, accordingly, the decision of the Tribunal was affected by a material jurisdictional error.
The decision subject to review is the third decision of the Tribunal affirming the decision of the delegate not to revoke the mandatory cancellation of the applicant's visa.

[2]

[3]

Direction 99

These proceedings concern the correct application of Direction 99 to the applicant's circumstances.
Under s 499(1) of the Act, the Minister has the power to make written directions for decision-makers who have been delegated powers under s 501CA(4) of the Act. At the time of the third Tribunal decision, Direction 99 was in effect (although I note that it has since been superseded by Ministerial Direction 110). Direction 99 was binding on the Tribunal by reason of s 499(2A) of the Act: see discussion by Jackson J in Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 934 at [12].
Direction 99 set out mandatory considerations that decision-makers "must take into account … where relevant to the decision". In particular, para 5.2(6) provided that: Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Direction 99 set out "primary considerations" for the consideration of decision-makers as follows:
Primary Considerations 8.1 Protection of the Australian Community 8.1.1 The nature and seriousness of the conduct 8.1.2 The risk to the Australian community should the non-citizen commit further offences of engage in other serious conduct 8.2 Family violence committed by the non-citizen 8.3 The strength, nature and duration of ties to Australian 8.4 Best interests of minor children in Australia affected by the decision 8.5 Expectations of the Australian community
Paragraph 8.1 of Direction 99 provided that the protection of the Australian community should be considered by reference to the nature and seriousness of the conduct, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.1.1 of Direction 99 provided that: 8.1.1 The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
violent and/or sexual crimes conduct;
crimes of a violent nature against women or children, regardless of the sentence imposed;
acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
the cumulative effect of repeated offending;
whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraph 8.3 of Direction 99 set out considerations in relation to the separate "primary consideration" of the strength, nature and duration of the non-citizen's ties to Australia: 8.3 The strength, nature and duration of ties to Australia
Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
the length of time the non-citizen has resided in the Australian community, noting that:
considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Paragraph 8.5 of Direction 99 set out considerations in relation to another "primary consideration" of the expectations of the Australian community: 8.5 Expectations of the Australian Community
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.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. 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:
acts of family violence; or
causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
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.

[5]

The Tribunal outlined further particulars in relation to the above offences that it was able to consider as follows: Summary of the Applicant's offending - by date of sentencing hearing
Queensland Magistrates Court May 2019: The first offence committed by the Applicant culminated in a conviction for 'Contravene Direction or Requirement'. In April 2019, the police approached the Applicant for the purposes of speaking to him and other person whom the police noticed to be 'loitering outside the shops at [Brisbane address redacted]'. The police approached the Applicant and, as the Queensland Police QP9 document notes '…started by just asking the Defendant [the Applicant] what his name was. The Defendant became very defensive stating that he had done nothing wrong and would not give police his name.'
The Applicant maintained his refusal to provide his personal particulars to the police. He was warned that he would be placed under arrest if he maintained the refusal. The police eventually placed the Applicant under arrest and '…he instantly became verbally aggressive toward police.' The QP9 document further notes that the Applicant '…used several insults to try and antagonize them into a fight and called them racist on several occasions.' He was transported to the local police station and as part of that process he was again asked to state his name. The QP9 document notes that 'The defendant again refused, only telling the police to "shut the fuck up".' At the sentencing hearing about a month later, in May 2019, the Applicant was fined the sum of $350 and no conviction was recorded.
Queensland Magistrates Court October 2019: police in a district of Brisbane became aware that on a date in late August 2019 a set of registration plates were stolen from a vehicle in the local area. In early September 2019, police were called to a disturbance and, as part of their inquiries, noticed the aforementioned stolen registration plates on a particular vehicle parked at the right side of the dwelling where the disturbance had occurred. The Applicant was at the scene of the disturbance and, after identifying himself to the police, they spoke with him. There must have followed questions about the subject vehicle and the registration plates on it. The Applicant told police that he had, the day before, bought the subject vehicle and that the subject registration plates were on the vehicle at the time of purchase.
Unable to provide particulars of the vehicle's purchase, the police seized the subject registration plates and charged the Applicant with 'Possess Tainted Property'. About six weeks later in about mid-October 2019 the Applicant was convicted of this offence, fined $450, with no conviction being recorded.
Queensland District Court July 2020: this is the offending that came before Her Honour Justice Dick SC. This offending is more extensive than what proceeded it. This offending proceeded by way of a seven count indictment that relevantly appears in the material.12 In short compass the seven counts comprise: Counts 1, 3, 4 Common assault [x3] Count 2 Assault occasioning bodily harm, in company Count 5 Stealing Count 6 Armed robbery in company Count 7 Armed robbery in company, with wounding
The indictment deals with the Counts in three groups deriving from three separate incidents. In the first incident, the complainants were an adult male and female. The conduct perpetrated against these complainant victims involved the Applicant and his co-offenders gratuitously and without provocation proceeding to:

push the male complainant on his chest (grounding the first unlawful assault charge);
punching the female complainant to the left side of her face using a closed fist (grounding the second Count of assault occasion assault but including assault occasioning of bodily harm, in company);
one of the Applicant's co-offenders then threatened both complainants using the words 'I'm 16 and I'll fucking stab you cunt' (grounding the third and fourth common assault charges);
the offenders then picked up a bag belonging to the female complainant which contained items of personalty belonging to that complainant. The stolen bag was passed to the Applicant (grounding the fifth charge in the indictment, that of stealing).

The indictment then deals with the sixth Count which is charged as 'armed robbery in company'. The Statement of Facts notes the Applicant was 'armed with an offensive instrument' and that he was in company. It is worth quoting the indictment in full in respect of this charge: 'Second incident (Count 6)
The complainant is [name redacted].
On 9 November 2019 at 12:45am, the complainant was walking on [address redacted]. [Name of co-accused redacted] approached him and asked for a cigarette. The complainant said no. [Name of co-accused redacted] followed the complainant for a short while. The complainant turned around and suddenly saw [the Applicant] and two unknown male associates standing 20 meters away.
One of the males then approached the complainant and asked if he wanted "trouble". The complainant continued to walk in an attempt to get away from them. The defendants and two unknown males surrounded the complainant. One of them demanded the complainant's back-pack. The complainant removed the backpack and showed it to them. [The Applicant] then held a knife at the complainant's stomach. The complainant said he did not need to use the knife.
[Name of co-accused redacted] then took the complainant's bag and searched it. One of the males took the complainant's mobile phone and demanded the pin code, as [the Applicant] continued to hold the knife against his stomach. [the Applicant] then moved it to the complainant's throat, such that the blade touched his skin. As he did this, he told the complainant nothing would happen to him as long as he gave them what they wanted. The complainant complied and gave them his pin number. The blade remained at his throat while another male unlocked the phone and completed a factory reset.
[Name of co-accused redacted] then wiped the handle of the complainant's backpack and said she needed to remove her fingerprints. [The Applicant] told the complainant not to go to police and released him. Both defendants and the two unknown male offenders walked away from the scene with his mobile phone.
In terms of this seventh Count, the material contains appalling and sobering images of its victim. Those photographic depictions can only be viewed in one way. Also, the Statement of Facts goes on to contain a number of paragraphs summarising the detection and arrest of the Applicant and his co-offenders. It is notable that the three incidents giving rise to the seven Counts were reported to police. The first six Counts were entirely captured on CCTV footage. In relation to the seventh Count, the Applicant and his co-offender were captured on CCTV footage immediately prior to and after the offending transaction.
When these indicted matters came before Judge Dick SC for sentencing in July 2020 there were five additional charges before the court which were not part of the indictment. They comprised:

two counts of stealing;
one count of unlawful use of a motor vehicle;
one count of driving without a licence; and
one count of failure to appear in accordance with undertaking;

The immediately preceding charges of stealing and that of unlawful use of a motor vehicle was dealt with as summary offences pursuant to s 651 if the Criminal Code Act 1899 (Qld) as part of the indictment before the court in relation to the seven indicted matters. For these three charges, respective convictions were recorded and the Applicant was placed on probation for two years.
The fourth additional charge was proffered pursuant of s 33(1) of the Bail Act 1980 (Qld). On this charge, the Applicant was convicted with a conviction recorded but he was not further punished. The fifth and final additional charge was proffered as a driving offence, specifically, 'Driving Without a Licence.' For this offence a conviction was recorded and the Applicant was sentenced to one months' imprisonment. A further order was made that he be disqualified from holding or obtaining a drivers licence for three months from July 2020.
In her sentencing remarks, Judge Dick SC noted that 'These [that is, the indicted matters] are serious offences, particularly the armed robbery - the wounding.' Her Honour took into account the Applicant's plea of guilty to the totality of the charges before the Court. In terms of observations about the nature of the offending and the Applicant's conduct in the circumstances of its commission, Her Honour said: 'HER HONOUR: Stand up, please. I do not have to talk to you very much about these events. They happened over four days, and I can see that at least the first two of them, you were with the same people. On the first occasion, you sensibly kept out of it, except for the fact that you were a bystander and aided by your presence. Unfortunately, by the time of the second incident, you are starting to hold a knife up to the person, and you put it to the person's stomach. By the third incident, you were punching the complainant. You stabbed him twice in the right upper arm and him again in the head with a closed fist. So there was a rapid escalation in your behaviour.'
In terms of formulating a global sentence for the seven indicted matters, Her Honour said: 'Here are the sentences that I impose. On count 6 on the indictment, the armed robbery in company, you are sentenced to imprisonment for a period of three years. On count 7 on the indictment, armed robbery in company with wounding, you are sentenced to imprisonment with a period of four years. On the three common assaults, the assault occasioning bodily harm, the stealing as a summary offence and the unlawful use as a summary offence - on each of those, I will offer you probation for a period of two years on your release from prison.' (footnotes omitted)
The Tribunal considered the applicant's offending with reference to primary considerations 1-5 under para 8 of Direction 99 and concluded as follows:
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant's Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the mandatory cancellation of the Applicant's Visa. As noted previously in these Reasons, the Applicant does not pass the character test.

Primary Consideration 1: carries very heavy weight in favour of affirming the Decision Under Review;
Primary Consideration 2: is of neutral weight;
Primary Consideration 3: carries moderate weight in favour of setting aside the Decision Under Review;
Primary Consideration 4: carries moderate weight in favour of setting aside the Decision Under Review ;
Primary Consideration 5: carries very heavy weight in favour of affirming the Decision Under Review.

I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 1 and 5 are sufficient to outweigh the combined weights I have allocated to Primary Considerations 3 and 4 and Other Considerations (a) and (b).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant's Visa.

[6]

grounds of review

The grounds of review of the third Tribunal decision on which the applicant relies were as follows:
The Tribunal erred jurisdictionally in its consideration of the nature and seriousness of the Applicant's conduct to date - purportedly pursuant to paragraph 8.1.1 of Direction 99 - in failing to consider the sentence imposed on the Applicant for the offence of 'contravene direction or requirement'. Particulars
There was evidence before the Tribunal that the Applicant had been found guilty of the offence of 'contravene direction or requirement' by refusing to give his name to police as an 18-year-old (in circumstances where he then swore at police).
The Tribunal considered this conduct to be 'serious' (see Tribunal reasons, T, [34]).
The Tribunal reached that view without having regard to the sentence imposed for the offending (which was a fine of $300 without recording a conviction: T [19]).
The Tribunal was required to consider the sentence imposed in its consideration of the nature and seriousness of the conduct - see Direction 99 at paragraph 8.1(1)(c).
The Tribunal's failure to comply with this aspect of Direction 99 was material because, had the Tribunal considered the sentence imposed by the court for the offence of 'contravene direction or requirement', it would have assessed that conduct as less serious and that, in turn, could realistically have changed the outcome of the finely balanced review proceedings.
The Tribunal erred jurisdictionally in its consideration of the strength, nature and duration of the Applicant's ties to Australia - purportedly pursuant to paragraph 8.3 of Direction 99 - in:
failing to consider (in the legally required sense) the impact of the decision on the Applicant's immediate family members; and/or
misunderstanding or misapplying 8.3(4)(a)(ii) of Direction 99 which requires that 'considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending'. Particulars
As to sub-ground (a), the Tribunal quoted from passages of the evidence but did not engage in any evaluation of the 'impact' of the decision on the Applicant's immediate family members. Instead, the Tribunal simply expressed a conclusion that 'the extent of the Applicant's ties to immediate family members in Australia does facilitate the allocation of at least some measure of weight to the totality of the strength, nature and duration of his ties to this country. I so find.' (T [126]) That was a failure to comply with Direction 99 and/or a failure to engage in the statutory task of reading, identifying, understanding and evaluating the Applicant's representations.
As to sub-ground (b), the Tribunal discounted, reduced or otherwise adversely calibrated the weight to be given to the fact that the Applicant had been resident in Australia during his formative years on the basis that he had '(1) never obtain[ed] any trade or other qualifications (in the general community), (2) compile[d] an unremarkable academic history, and (3) … never [found] … or engage[d] in remunerative employment' (T [141(a)], see also [142]). Properly construed, Direction 99 did not require or permit that analysis.
Either or both of those errors were material because a lawful application of paragraph 8.3 of Direction 99 would have resulted in more favourable weight being given to this consideration and that, in turn, could realistically have changed the outcome of the finely balanced review proceedings.
The Tribunal erred jurisdictionally in its consideration of the expectations of the Australian community - purportedly pursuant to paragraph 8.5 of Direction 99 - in purporting to identify and/or apply an expectation of the Australian community that was not contained in paragraph 8.5. Particulars
Properly understood, the sub-paragraphs to paragraph 8.5(2) of Direction 99 exhaustively identify the categories of conduct in respect of which the Australian community expects (as a matter of deemed rather than actual expectations) that the Australian Government can and should cancel a person's visa if the person raises character concerns 'through' that conduct.
The Tribunal considered that, despite the Applicant's violent and property offending not falling within the sub-paragraphs of paragraph 8.5(2) of Direction 99, 'that should not be the end of the inquiry.' (T [180]) The Tribunal went on to reason as if the deemed expectation in paragraph 8.5(2) of Direction 99 applied 'regardless of whether it [i.e. the Applicant's conduct] falls into any of the componentry of paragraph 8.5(2) of the Direction' (T [180] see also [187]). That was a failure to comply with this aspect of Direction 99.
That error was material because compliance with paragraph 8.5(2) of Direction 99 would have resulted in less adverse weight being given to this consideration which, in turn, could realistically have changed the outcome of the finely balanced review proceedings.

[7]

Applicant's submissions

In relation to ground of review 1, the applicant submitted that the Tribunal failed to consider the sentence imposed on the applicant for the May 2019 offence which he submitted was required by para 8.1.1(1)(c) of Direction 99. Relevantly, the applicant received a $350 fine without a conviction being recorded for the offence. The applicant submitted that had this sentence been considered, the applicant's conduct would have been viewed as less serious by the Tribunal.
Alternatively, the applicant submitted that the Tribunal erred in concluding that the May 2019 offence fell within para 8.1.1(1)(b)(ii) of Direction 99. In particular, the applicant submitted that the May 2019 offence was not an offence committed "against" a government representative or official due to the position they held, or in the performance of their duties.
In relation to ground of review 2, the applicant submitted that the Tribunal failed to consider the impact of the decision on the applicant's immediate family members as required by para 8.3(1) of Direction 99. Further, the applicant submitted that the Tribunal discounted the weight it was required to give to the applicant under para 8.3(4)(a)(ii) for having spent his "formative years" as a teenager and young adult in Australia as a result of his failure to contribute positively to the Australian community.
In relation to ground of review 3, the applicant submitted that the tribunal misunderstood para 8.5(2) of Direction 99 by relying on conduct that did fall within the stated categories of conducted outlined in paras 8.5(2)(a)-(f). The applicant extracted the following paragraph from the third Tribunal decision in its submissions:
I have carefully examined the nature and extent of the Applicant's offending committed as an adult. It is difficult and ultimately unsafe for me to form the view that any of it falls within the auspices of the abovementioned paragraphs (a)-(f) of paragraph 8.5(2) of the Direction. But that should not be the end of the inquiry. I am of the view that the Applicant's offending that came before Justice Dick SC for sentencing in July 2020 is of such a magnitude of seriousness that regardless of whether it falls into any of the componentry of paragraph 8.5(2) of the Direction, the Australian community would expect that the Australian Government can and should cancel this Applicant's Visa.
In relation to the above excerpt from the third Tribunal decision, the applicant submitted that:
the Tribunal found that the relevant offending did not fall within the six categories of conduct described in paras 8.5(2)(a)-(f); but
nevertheless, the Tribunal performed its own assessment of Australian community expectations; and
the Tribunal formed the view that the Australian community would expect that the Australian Government can and should cancel the Applicant's visa.

[8]

MINISTER'S SUBMISSIONS

In relation to ground of review 1, the Minister submitted, in summary, that the Tribunal's conclusion in relation to the seriousness of the applicant's offending under para 8.1.1(c) of Direction 99 was with reference to the various offences of which he was convicted and sentenced to imprisonment in July 2020 (including robbery armed in company and assault). The Minister referred to the following excerpt from the third Tribunal decision in making this submission:
I am of the view (and I find) that the sentences imposed on the Applicant in July 2020 most certainly speak to the reality that his offending has been at least very serious, more likely extremely serious.
As such, the Minister submitted that it was "not a realistic possibility" that consideration of lesser sentences for other crimes (such as the May 2019 offence) would have altered the Tribunal's finding in relation to para 8.1.1(c). In any event, the Minister referred to paras of the third Tribunal decision where the sentence for the May 2019 offence was referenced.
In relation to the alternative submission advanced by the applicant under ground of review 1, the Minister submitted that the offence was clearly within the remit of para 8.1.1(b)(ii) due to the nature of the offence as described in the third Tribunal decision as follows:
The Applicant maintained his refusal to provide his personal particulars to the police. He was warned that he would be placed under arrest if he maintained the refusal. The police eventually placed the Applicant under arrest and '…he instantly became verbally aggressive toward police.' The QP9 document further notes that the Applicant '…used several insults to try and antagonize them into a fight and called them racist on several occasions.' He was transported to the local police station and as part of that process he was again asked to state his name. The QP9 document notes that 'The defendant again refused, only telling the police to "shut the fuck up".' At the sentencing hearing about a month later, in May 2019, the Applicant was fined the sum of $350 and no conviction was recorded. (footnotes omitted)
The Minister made further reference to the fact that the May 2019 offence was an offence under s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld) which specifically concerns contravening a direction by a police officer.
In relation to ground of review 2, the Minister provided specific examples of where the Tribunal made reference to impacts on the applicant's immediate family members as required under para 8.3(1) of Direction 99. Namely, the Minister pointed to where the Tribunal had referenced:

a statement by the applicant's mother that she would be "depressed and distressed" if the applicant was deported (at D[120]);
the applicant's father experiencing stress (at D[122] and D[124]); and
the applicant's brother missing him (at D[125]).

Further, the Minister submitted that the only limitation as to the attribution of weight under para 8.3(3)(a)(i) of Direction 99 is that "considerable weight should be given … regardless of when … offending commenced and the level of that offending…" (emphasis added). The Minister submitted that the Tribunal's attribution of weight under para 8.3(3)(a)(i) was not reduced with reference to when the applicant's offending commenced or the level of that offending. Rather, the better view was that the Tribunal gave the applicant the benefit of "considerable weight" as required by para 8.3(4)(a)(i) of Direction 99.
In any event, the Minister submitted that Direction 99 acts as no more than guidance on the exercise of discretionary powers (citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 (Singh) at [23]) and can therefore not confine the Tribunal in the manner submitted by the applicant.
In relation to ground 3, the Minister submitted that the list of conduct in paras 8.5(2)(a)-(f) of Direction 99 is not exhaustive and should not confine the evaluative task of the Tribunal. Indeed, the Minister submitted that para 8.5(2) simply provides specific instances of the "kind" of conduct where the Australian community expects the Australian Government can and should cancel visas or refuse entry.

[10]

Ground of Review 1

The primary considerations found under heading 8.1 of Direction 99 concern the protection of the Australian community from criminal or other serious conduct. Ground of review 1 specifically relates to para 8.1.1(1)(c), which concerns the sentence imposed by the courts for a crime or crimes committed by the relevant non-citizen.
At D[18]-[26], which I have outlined earlier in this judgment, the Tribunal summarised in detail the particulars of the offences committed by the applicant between May 2019 and July 2020, which culminated in several convictions. As the Tribunal observed at D[19], the first offence committed in May 2019 resulted in the applicant being fined the amount of $350, with no conviction recorded.
At D[40], the Tribunal observed however that it was the sentences imposed on the applicant in July 2020 which lead the Tribunal to conclude that the applicant's offending had been "at least very serious, more likely extremely serious". Those sentences related to the applicant's convictions for, inter alia, armed robbery, stealing, common assault and assault occasioning bodily harm whilst armed/in company. The Tribunal's conclusion concerning the seriousness of the applicant's offending was reiterated at D[50].
The essence of the applicant's complaint in ground of review 1 was that, in concluding that the applicant's offending had been "at least very serious, more likely extremely serious", the Tribunal had failed to take into account an earlier, less serious, offence on the part of the applicant in May 2019 (where no conviction was recorded) in reaching that conclusion.
In my view, ground of review 1 lacks merit.
As the Minister correctly submitted, it is not a realistic possibility that consideration of lesser sentences for other crimes could have improved, in the applicant's favour, the Tribunal's findings concerning the seriousness of the applicant's offending.
In any event, plainly, the Tribunal was aware of the May 2019 offence, set out relevant particulars of the offence, and noted that no conviction had been recorded.
Ground of review 1 is not substantiated.

[12]

Impact of decision on family members

In respect of the applicant's claim that the Tribunal failed to consider the impact of the decision to cancel the applicant's visa on the applicant's immediate family members in Australia, the Tribunal's reasons show, plainly, that the Tribunal did consider the impact of such a decision. In particular, I note the following observations of the Tribunal in its reasons:
The Applicant's mother has provided two statements. The first is in the form of statutory declaration made on 5 March 2021, prior to an earlier ventilation of this matter in this Tribunal. She regards the Applicant as 'a good son to me.' She also notes 'he was very good to his brothers and sisters'. She further notes that the Applicant '… has said we raised him and brought him to Australia, and his responsibility is to look after us'. She speaks of wanting to '…help my son to stay out of trouble in future. I will keep him busy in the house and will be by his side. My daughter [Ms IA - the Applicant's half-sister] can drive him to his appointments with his probation officer'.
The second statement of the Applicant's mother is also in the form of a statutory declaration which is undated and which appears in the material. In this second statement, she says the following: 1 'Since the previous Administrative Appeals Tribunal hearing, I have spoken to my son [the Applicant] and I now understand that he has been convicted of almost 30 offences as a child and an adult (when he was 18 years old). 2 I understand that my son was Involved [sic] in armed robberies and stabbed a man. 3 This is in addition to other offences including the theft of cars and number plates, and breaking and entering. 4 My son is now a grown man. I love him and will support him emotionally and with my love, but he must now support himself as a man. 5 [the Applicant] must make good decisions on his own. He is no longer a child 6 ….. 7 If [the Applicant] was sent to Ethiopia or remained in detention for years or forever I would hurt as a mother. I would be depressed and distressed, and feel that I have failed him and my family'.
The Applicant's father has also provided two statements. The first of them is in the form of a statutory declaration made on 5 March 2021. He remains married to the Applicant's biological mother and confirms (1) that his wife has have two children from a previous marriage; and (2) eight children together. One of those eight children is the Applicant. The Applicant's father says that he and the Applicant's mother live separately but are still married. They have been living separately for around five years. She lives only around five minute's walking distance from him. He says the care/parenting arrangements for the children are as follows:

Mr TM (full-brother of the Applicant) lives with him;
the Applicant is (as we know) in immigration detention;
the Applicant's half-brother, Mr AA is also in immigration detention;
the Applicant's full brother, Mr AM is in the care of friends;
the Applicant's full brother, Mr ADM is in the care of friends; and
the remaining half and full-siblings of the Applicant are in the care of/reside with the Applicant's biological mother.

The Applicant's father acknowledges that 'I love my son but I agree my son has done wrong with his crimes. His mother and I are ashamed of this.' He speaks of suffering from depression and anxiety for which he is medicated by taking Mirtazapine. He says 'I do not sleep properly and I have a lot of stress all the time. I suffer from this because my sons' [sic] deportation and their detention. My mental health got worse in around December 2020'.
The more recent statement of the Applicant's father was made also by way of statutory declaration which appears to be unsinged.146 In this second statement, the Applicant's father talks about a new-found understanding of the nature and extent of the Applicant's offending. He says 'My son is now a grown man. He is no longer a child. I love him and will support him emotionally, but he must now support himself as a man'. He goes on to say that the Applicant '… can live with me if and when he is released. He will sleep at my place but will probably go to his mother's during the day to assist with the other kids. This is in addition to him getting a job, which I expect him to do'.
The Applicant's father concludes this second statement by saying 'I'm now extremely stressed [the Applicant] being detained and with the potential that he could be removed or locked up in immigration detention forever. [The Applicant] hasn't been with us for years and I want him back'.
The Applicant's full brother, Mr ADM has provided a one page undated hand-written statement. It was received by this Tribunal on 3 July 2023. Mr ADM is now 24 years old and claims to be '… happily married, I have a beautiful child, I work full time'. Mr ADM implores the Tribunal in these terms: 'I hope you can give him a chance. We as a family will help guide him and show him the right path. I will stand beside him and make sure he gets his liscence, [sic] a job & help keep his life on track. He has a family here who love & support him. We all miss him. We need him home where he belongs' (footnotes omitted)
At D[126] the Tribunal concluded:
I have searched the totality of the material for any written statement (or equivalent) from any other immediate family member of the Applicant and cannot locate any. However, based on the evidence of the Applicant's parents and his full brother (Mr ADM), it can be found that the extent of the Applicant's ties to immediate family members in Australia does facilitate the allocation of at least some measure of weight to the totality of the strength, nature and duration of his ties to this country. I so find. I predicate this finding on the basis that the people representing those immediate family member ties are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Reading the reasons of the Tribunal as a whole, it is clear that in allocating weight to the totality of the strength, nature and duration of the applicant's ties to Australia, the Tribunal did so in light of the evidence it summarised concerning the impact of cancellation of the applicant's visa on his immediate family members in Australia, in particular the applicant's mother, father and brother.

[13]

Attribution of weight to length of time applicant has resided in Australia (in particular his "formative years")

In respect of the applicant's claim that the Tribunal failed to appropriately attribute weight to the length of time the applicant had resided in the Australian community, relevant reasons of the Tribunal can be found at D[141]-[143]:
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements: (a) whether the Applicant has been ordinarily resident here during his formative years. The Applicant first came to and settled in Australia in November 2012 when he was 11 years of age. He is presently 22 years old which means he has not spent his early infancy years in Australia but it can be found he has spent his teenage years and his early adulthood in this country. To whatever extent it can now be found he has spent his 'formative' years here, those years have seen him (1) never obtain any trade or other qualifications (in the general community), (2) compile an unremarkable academic history, and (3) to never find or engage in remunerative employment. This component of paragraph 8.3(4) of the Direction facilitates, at best, only a moderate level of weight to the Applicant's ties to Australia on the basis of him being in this country during his formative years; (b) whether the Applicant has positively contributed to the Australian community during his time here. As mentioned, the Applicant has spent about half of his life in Australia. He has never held remunerative employment in this country. It is not possible to find that he has been a productive member of the Australian community. I am not satisfied that if returned to the community, he would make any sort of positive contribution to Australia via his work. The evidence about prospective employment in the removalist field is weak and unconvincing and ultimately does him no favours. His PCF talks about the Applicant having made "a little contributed [sic] into my community …. mostly during our cultural event and community activities such as ….serving food to the elderly, cleaning the hall after a Somali and community event." I will find these modest community and cultural contributions mean that he has positively contributed to the Australian community such that this specific sub-paragraph 8.3(4)(a)(ii) can be applied as a means of speaking favourably to the strength, nature and duration of his ties to this country; (c) can the weight allocable to the strength of the Applicant's ties to Australia based on the length of time he has spent in the Australian community to be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here? With reference to the first question, I have already found that he has spent his formative years here. Be that as it may, his formative years were taken up with his offending, first as a juvenile and then as an adult. With reference to the second question, he arrived here in 2012 as a 11 year old. He committed his first offence here as an adult in November 2019. Focussing solely on the November 2019 period, this is some seven years after he first came here. Horrendous though that offending was, it cannot be found to have been committed 'soon after arriving in Australia'. Taking into account that the Applicant did spend his formative years here and that he cannot be found to have begun offending (as an adult) soon after arriving here, this paragraph 8.3(4)(a)(iii) does not impugn the strength, nature and duration of his ties to Australia.
I am therefore of the view (and I find) that consequent upon my analysis of the evidence around sub-paragraphs 8.3(4)(a)(i)-(iii) of the Direction, the Applicant's ties to the Australian community must be found to be strong given (1) he has spent his formative years here (but achieving or doing little or nothing of a positive nature) and (2) that he did not begin offending (as an adult) soon after arriving here. These two slightly favourable elements are barely augmented by his very modest community contributions. Conclusion: Primary Consideration 3
I have referred to four applicable components of this Primary Consideration 3. I am of the view following an analysis of the evidence relevant to those components that the totality of the evidence points to a finding that this Primary Consideration 3 is of moderate weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant's visa. (emphasis in original, footnotes omitted)
Paragraph 8.3 of Direction 99 is headed "The strength, nature and duration of ties to Australia." Paragraph 8.3(1) requires a decision-maker to consider any impact of the decision on the non-citizen's immediate family members who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. Paragraph 8.3(2) requires decision-makers to give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. Paragraph 8.3(3) refers to the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(4) of Direction 99 provides: (4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) the length of time the non-citizen has resided in the Australian community, noting that: i. considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Paragraph 8.3(4) of Direction 99 was examined by the Full Court in Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 153 (Campbell-Smith). It is helpful to consider the principles discussed by the Full Court in that case.

[14]

Campbell-Smith

In Campbell-Smith the non-citizen, whose visa had been cancelled, had a significant record of adult criminal offending in Australia. Justice McDonald, with whom Derrington and Goodman JJ agreed, noted:
Clause 5.2 of the Direction set out "principles" which were said to "provide the framework within which decision-makers should approach their task". Those principles relevantly included the following, in cl 5.2(5): (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
In particular, the claims of the appellant in Campbell-Smith included a challenge to the manner in which the Tribunal considered para 8.3(4)(a)(i) of Direction 99.
The Full Court noted that the Tribunal in that case had considered the third primary consideration - "the strength, nature and duration of ties to Australia" - set out para 8.3 of Direction 99 and considered the appellant's family ties in Australia. In that case, the Tribunal noted that the appellant had resided in Australia for around a decade, including a portion of his formative years, as the appellant had commenced living in Australia at around the age of 15 years. The Tribunal went on to find that less weight should be given to the appellant's residency in Australia, as he commenced offending within 18 months of his arrival. The Full Court at [19] referred to the reasons of the Tribunal in that case, including: The Applicant contends that he has strong ties to Australia and that the Tribunal ought to give very strong weight to Primary Consideration 3: On the grounds that my strength and length and duration of ties to Australia are strong, given that I have kids born here ... I also have the majority of my family here, and I have lived here since my formative years. I've done high school here ... On the materials before me, while it is clear that the Applicant has very strong ties to Australia via [his two daughters] and [his former partner, who is the mother of his daughters] (and that strong weight should attach to the fact that these persons will be adversely impacted by the Applicant's removal from Australia), it is also clear that the Applicant has not made any positive contributions to the Australian community. In fact, the Applicant's entire adulthood in Australia has been marked by almost entirely negative contributions via very serious offending. In balancing the constituent elements of this Primary Consideration 3, I find that moderate weight should attach in the Applicant's favour. …
The Full Court continued:
The Tribunal then expressed its conclusion in relation to the third primary consideration as follows, at [99]: "I find that this Primary Consideration 3 carries a moderate, but not determinative, weight in favour of revocation." The third primary consideration, to which the Tribunal attached "a moderate, but not determinative, weight" was the consideration concerning Mr Campbell-Smith's ties to Australia overall, and not only the matter addressed in cl 8.3(4)(a)(i) of Direction 99.
In relation to para 8.3(4)(a) of Direction 99, the Full Court said:
The primary judge held (at [27]) that cl 8.3(4)(a) of Direction 99 should not be understood as intending to compel the Tribunal to give "considerable weight" to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years. Rather, the primary judge held: The appropriate construction of para 8.3(4)(a)(i) is that it merely provides a guideline that generally considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending.
On the appeal, Mr Campbell-Smith does not seek to challenge that view of the effect of cl 8.3(4)(a)(i). His submissions proceed from an acceptance that Direction 99 did not necessarily prevent the Tribunal departing from the guidance contained in that clause if it decided that there was reason to do so.
The primary judge addressed Mr Campbell-Smith's submission that the decision of the Tribunal was affected by illogicality at [30]-[33] of his Honour's reasons. After quoting from the judgment of the Full Court in BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, the primary judge said at [33]: Accordingly, there is clear authority for the proposition that in assessing the weight to be given to the non-citizen's ties to the Australian community, a decision-maker may take into account that the non-citizen commenced offending soon after arriving in Australia. That factor may also affect the weight that should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years. A decision-maker might logically regard the Australian community as having greater responsibility towards a person whose criminality was substantially contributed to by their upbringing in Australia than towards a person whose criminality was substantially forged by their upbringing in another country. There was an intelligible basis for the Tribunal's departure from the guideline in para 8.3(4)(a)(i) of Direction 99.
Mr Campbell-Smith submitted that [33] of the primary judge's reasons should be understood as recording a finding that the Tribunal had departed from the guidance contained in cl 8.3(4)(a)(i) of Direction 99 by not giving "considerable weight" to the fact that Mr Campbell-Smith had been permanently resident in Australia during part of his "formative years". The last sentence of [33] of the primary judge's reasons could, at least potentially, be read as proceeding on the basis of an implicit acceptance that the Tribunal had departed from Direction 99 in that way.
In Campbell-Smith, the grounds of appeal before the Full Court (as paraphrased by the Full Court at [26]) were as follows:
The primary judge erred by failing to find that the Tribunal misunderstood cl 8.3(4)(a)(i) of Direction 99 and, thereby, constructively failed to exercise its jurisdiction and fell into jurisdictional error. Particulars a. Clause 8.3(4)(a)(i) of Direction 99 provided that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending. b. Despite applying Direction 99 and finding that the Applicant started living and resided in Australia in his formative years (as per [93] of the Tribunal's reasons (the Formative Years Fact), the Tribunal reduced the weight attributable to the Formative Years Fact based on when the Applicant's offending commenced and did not give considerable weight to the Formative Years Fact.
In the alternative to 1, the primary judge erred by failing to find that the Tribunal fell into jurisdictional error due to illogicality or irrationality. Particulars
The Tribunal's reasoning at [93] of its reasons is incompatible with cl 8.3(4)(a)(i) of Direction 99 and there were no cogent reasons against the application of cl 8.3(4)(a)(i) of Direction 99.
The Full Court observed at [28] that a threshold issue in that case in respect of both grounds of appeal was whether the reasons of the Tribunal demonstrated that the Tribunal did, in fact, depart from the guidance provided by para 8.3(4)(a)(i), namely whether the Tribunal accorded less than "considerable weight" to the fact that the appellant had started residing in Australia during his formative years. The Full Court noted, in summary:

The Tribunal had recorded an express finding that the appellant had resided in Australia for a period that included a portion of his formative years. This strongly suggested that the Tribunal was consciously addressing itself to the requirements of para 8.3(4)(a)(i) of Direction 99 (at [31]);
The Tribunal did not expressly state that it was giving "considerable weight" to the fact that the appellant had resided in Australia during his formative years, but it was fairly improbable that the Tribunal, having addressed itself to para 8.3(4)(a)(i), failed to appreciate that the effect of the Direction was that it should give "considerable weight" to that fact (at [32]);
In particular their Honours observed:

The expression "considerable weight" is not a precise one that identifies a single point on a continuum of "weight", but is apt to convey that decision-makers should treat the fact of ongoing residence in Australia during a non-citizen's formative years as a factor which is significant or substantial. It is not possible to describe precisely the minimum "threshold" level of weight that is to be regarded as "considerable", but the terms of cl 8.3(4)(a)(i) suggest that decision-makers are at liberty to attribute such weight as they see fit to that factor, providing the weight they attribute is not below the threshold of "considerable weight". Put another way, cl 8.3(4)(a)(i) contemplates that decision-makers should give the fact of residence in Australia during a non-citizen's formative years a degree of weight somewhere in the range at or above the minimum that can be described as "considerable".

A natural reading of the Tribunal's reasons in that case was that "less weight" meant less weight than the Tribunal might otherwise have given the fact that the appellant had lived in Australia during his formative years, had he not commenced offending relatively soon after his arrival in Australia (at [38]).

Importantly, the Full Court continued:
The Tribunal ultimately stated (at [99]) that it gave "moderate weight" to the third primary consideration as a whole. That is not inconsistent with the Tribunal having given a degree of weight at the lower end of the range of "considerable weight" to one factor that was relevant to that consideration, particularly given that the Tribunal at [98] expressly identified other factors that counted against Mr Campbell-Smith - namely that he had "not made any positive contributions to the Australian community".
The Full Court found at [46] that it should not be concluded that the reasons of the Tribunal in that case demonstrated that it gave less than "considerable weight" to the appellant's residency in Australia during his formative years.

[15]

The present case

It is para 8.3(4)(a)(i) of Direction 99 which requires that "considerable weight" be given to the fact that a non-citizen has ordinarily been resident in Australia during and since their formative years, not para 8.3(4)(a)(ii) as stated in the applicant's ground of review 2(b). I will treat this as a typographical error in the applicant's amended originating application.
A threshold issue is whether the reasons of the Tribunal in the present case demonstrated that the Tribunal did, in fact, depart from the guidance provided by para 8.3(4)(a)(i) of Direction 99, namely whether the Tribunal failed to attribute "considerable weight" to the fact that the applicant resided in the Australian community during his formative years.
The key reasons of the Tribunal in respect of this issue are at D[141]-[143]. Reviewing these paragraphs, I am satisfied that the Tribunal departed from the guidance provided by para 8.3(4)(a)(i) of Direction 99, such as to constitute a material jurisdictional error on the part of the Tribunal. My reasons for this are as follows.
First, although at D[141(c)] the Tribunal ultimately concluded that the applicant had spent his formative years in Australia, in D[141(a)] the Tribunal had regard to irrelevant issues in discussing "to whatever extent" the applicant had spent his formative years in Australia - namely the applicant's poor community, employment and academic history. The question then arises as to whether the Tribunal misunderstood the meaning and significance of "formative years" for the purposes of para 8.3(4)(a)(i) and suggests that the Tribunal misconceived the concept of "formative years". This concept was examined by Feutrill J in CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228 (CJO23). In particular, I note the following comments of Feutrill J in CJO23:
The relevant criterion assumes that a non-citizen will have a period of 'formative years'. The natural and ordinary meaning of 'formative' includes, relevantly, 'giving form or shape; forming, shaping, fashioning; moulding' or 'relating to formation or development': The Macquarie Dictionary, 4th edition. Not all non-citizens will have been formed, shaped, fashioned or moulded by events, experiences and circumstances occurring at the same states of life or over the same periods. The criterion requires the events, experiences and circumstances affecting a particular non-citizen 'as formed' to be regarded and the question to be asked is whether the non-citizen was ordinarily resident in Australia during and since the period of that non-citizen's formative years. It requires that a non-citizen's formative years be conceived as constituting a 'period': Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199 at [13]- [19] (Lindgren J). The expression 'formative years' when used in relation to a person is descriptive of a period of childhood, but it need not be confined to that period of a person's life. It is capable of meaning any period during the formation or development of a person's character. It may extend, for example, to a period during which a person is receiving education, training or guidance from people other than parents or those acting in the position of parents. The expression does not require that there be a cut-off at the date a person becomes an adult in the eyes of the law.
It follows that paragraph 8.3(4)a)i. requires the Tribunal, where relevant, to ascertain the period of a non-citizen's formative years and to consider and give weight to ordinary residence in Australia during and since those formative years. A proper appreciation and understanding of the meaning of 'formative years' and the period of those years is of significance because it stands to reason that greater weight may be given to the period of time a non-citizen has been ordinarily resident in Australia where that period includes all or a very significant portion of that person's formative years. (emphasis added)
As Feutrill J indicated, the concept of "formative years" is referable to the period of time when a person's character is developed or formed. Whether the person was successful or not in respect of such issues as community participation, employment, or education during that period is not relevant in considering whether his or her formative years were spent in Australia. In qualifying its assessment of whether the applicant had spent his formative years in Australia, the Tribunal failed to have regard to the key issue explained by the Full Court in Campbell-Smith and Feutrill J in CJO23 - namely that para 8.3(4)(a)(i) is apt to convey that decision-makers should treat the fact of ongoing residence in Australia during a non-citizen's formative years as a factor which is significant or substantial.
Second, there is no indication in the reasons of the Tribunal in this case (unlike the position in Campbell-Smith) that the Tribunal recognised the requirement in para 8.3(4)(a)(i) of Direction 99 that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending. The fact that the Tribunal noted the existence of para 8.3(4)(a)(i) in a footnote to its reasons is not conclusive that the Tribunal took into consideration the requirements of that paragraph, when the reasons of the Tribunal as a whole are examined. References in the reasons of the Tribunal to the strength of the applicant's ties to Australia are expressed holistically, referable to the general issue of ties to the Australian community rather than weight attributed to the specific consideration of para 8.3(4)(a)(i).
Third, it appears that the Tribunal may have incorrectly conflated the consideration of a non-citizen being ordinarily resident in Australia during and since their formative years (as provided in para 8.3(4)(a)(i)) with the prospect of attributing more weight to the time the non-citizen has resided in Australia where he or she has contributed positively to the Australian community (as provided in para 8.3(4)(a)(ii)). The starting point is that set out in para 8.3(4)(a)(i)) - namely that considerable weight should be given to the fact that a non-citizen was ordinarily resident in Australia during and since their formative years. The only correct conflation of paras 8.3(4)(a)(i)-(iii) is that, in having regard to the weight to be attributed to the length of time the non-citizen has resided in the Australian community for the purposes of para 8.3(4):

more weight can be attributed by the decision-maker to the length of time the non-citizen has resided in the Australian community where the non-citizen has contributed positively to the Australian community during that time (referable to para 8.3(4)(a)(ii)); and
less weight can be attributed by the decision-maker to the length of time the non-citizen has resided in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia (referable to para 8.3(4)(a)(iii)).

In this case, the Tribunal found at D[141(a)] that: …this component of paragraph 8.3(4) of the Direction facilitates, at best, only a moderate level of weight to the applicant's ties to Australia on the basis of him being in this country during his formative years. (emphasis added)
It follows that the Tribunal attributed less than considerable weight to the length of time the non-citizen has resided in the Australian community on the basis of the Tribunal's negative view of the applicant's qualifications, academic history, and employment record. There is no basis under para 8.3(4) of Direction 99 for an assessment to be made, in such terms, of a non-citizen who has spent their formative years in Australia.
Fourth, while at D[142] the Tribunal found that the applicant's ties to the Australian community must be strong given that he spent his formative years in Australia, and that he did not begin offending as an adult soon after arriving here, the Tribunal described these issues as "two slightly favourable elements [which were] barely augmented by his very modest community contributions" (emphasis added). Referring to the fact that the applicant had spent his formative years in Australia as one of "two slightly favourable elements" misconceives the significance of this issue as required by para 8.3(4)(a)(i) of Direction 99.
Importantly, the Minister relied on the Full Court decision in Singh. In that case, in relation to the status and operation of Ministerial directions under s 499 of the Act, Mortimer J (as her Honour then was) relevantly observed: [23] Directions made under s 499 of the Act bind administrative decision-makers, including the Tribunal: see s 499(2A). They must be taken into account, and they must be accurately understood: see my observations in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39], and see also Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 at [55]. That said, the directions provide no more than guidance on the exercise of discretionary powers. As Kenny J and I said in Jagroop at [55], directions of this nature are avowedly intended to affect the weight decision-makers generally give to certain factors. However, they can do so as guidance only: see [78] of Jagroop. Such directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker's view is that different weight should be given to a particular matter. The statutory power in respect of an individual visa holder is being exercised by the administrative decision-maker, not by the Minister who made the directions. The principles in Drake (No 2) about policies remain generally applicable to these kinds of directions: see Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 645.
While helpful, Singh concerned the consideration of Ministerial Direction 90 (the predecessor to Ministerial Direction 99). In that Direction, the equivalent paragraph, namely para 9.4.1, did not (unlike para 8.3(4)(a)(i) of Direction 99) provide for "considerable weight" to be attributed to the issue of formative years being spent in Australia. In applying Direction 90 as explained in Singh, a Tribunal could not be compelled to give specific weight (considerable or otherwise) to the issue of a non-citizen spending their formative years in Australia. This can be contrasted with a Tribunal required to apply para 8.3(4)(a)(i) of Direction 99.

Paragraph 8.5(1) specifically states that where a non-citizen has engaged in serious conduct, 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. This paragraph is framed in general terms, referable to "serious conduct". A decision-maker may have regard to this general provision in assessing the expectations of the Australian community, and form a view as to whether the non-citizen has engaged in "serious conduct" such that he or she should not be permitted to remain in Australia.
Paragraph 8.5(2) is plainly an addendum to para 8.5(1). It commences with the words "in addition", presumably being "in addition to para 8.5(1). Para 8.5(2) gives further leeway to a decision maker to cancel or refuse a visa, or refuse to revoke the mandatory cancellation of a visa, on the basis that such a decision "may be appropriate". It provides examples of the types of offences which raise serious character concerns through conduct, being "in particular" of the kind set out in para 8.5(2)(a)-(f), and indicates the Government's views of the seriousness of such offences. The manifold qualifications to para 8.5(2), in my view, clearly mean that the list of offences in para 8.5(2)(a)-(f) is not an exhaustive list, being only "in particular" types of offences which raise serious character concerns through conduct.

Second, on the basis that the list of offending as set out in para 8.5(2) is not exhaustive, the question arises whether the Tribunal at D[180] improperly made an independent assessment of what the Australian community would expect for the purposes of para 8.5 of Direction 99.
I am not persuaded that the Tribunal did so in this case.
The Tribunal at D[180] had regard to the nature of the applicant's offending which came before the District Court of Queensland in July 2020, as a result of which the applicant was convicted and sentenced to terms of imprisonment of three and four years. As set out earlier in this judgment, those convictions related to, inter alia, offences of robbery, assault and using personal violence. Unlike, for example, the decision of the Tribunal considered by Rofe J in Muller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 924 (Muller) where the Tribunal had assessed the community's expectations in light of the personal circumstances of the applicant, the decision of the Tribunal in this case was referable only to the "magnitude of seriousness" of the convictions of the applicant in July 2020. As accepted by her Honour in Muller at [86], para 8.5(1) of Direction 99 is a deeming clause which ascribes or imputes to the Australian community an expectation that wholly aligns with the expectation of the executive government of the day, with such expectations to be applied as norms. To assert that the Tribunal in this case was unable to have regard to the existence of the applicant's convictions in applying the relevant norm as set out in para 8.5(1) of Direction 99 would render the terms of para 8.5(1) meaningless.
In my view, ground of review 3 is not substantiated.