Naufahu v Minister for Immigration and Citizenship [2026] FedCFamC2G 454

1. On 8 May 2019, the Department was notified that the Applicant had been bailed with conditions.[6]
2. On 21 August 2019, Tasmanian Police informed the Department that the Applicant had breached his bail conditions on 13 July 2019 and was charged on 15 July 2019.[7] The condition in question required the Applicant to be present at the residence he shared with his partner between the hours of 9.00 pm and 6.30 am, and prohibited him from changing this address without the prior approval of the Court. It was reported that on "Saturday 13 July 2019 at 2.10 am police attending the [residence]... [and] knocked on the front screen door... numerous times" and that "[n]o resident of that address opened the door or made themselves known to the police".[8]
3. On 27 August 2019, the Delegate sent the Applicant notice of the Minister's intention to consider cancellation of his Partner Visa (NOICC).6 The NOICC was issued because the Delegate of the Minister was satisfied there appeared to be grounds to consider cancellation of his visa under s 116(1)(e)(i) of the Migration Act 1958 (Cth) (Act), namely, that his presence in Australia may have been a risk to the health and/or safety of the Australian community.[9]
4. In reaching this view the Delegate relied on the information obtained from Victoria Police about the alleged aggravated robbery and breach of bail conditions. The Delegate considered that the charges against the Applicant were "serious and violent in nature... and indicate[d] a disregard for the wellbeing of the Australian community and Australian law".[10]
5. The Applicant was invited to comment on the information contained in the NOICC and to "show why the... grounds for cancellation do not exist, or give reasons why [the visa] should not be cancelled". The Applicant was required to provide his response "within five working days after [he was] taken to have received" the notice.[11]
6. On 12 September 2019, the NOICC was re-issued to the correct address of the Applicant.[12]
7. On 27 September 2019, the Applicant's legal representative sought an extension of time to respond to the NOICC.[13]
8. On 1 October 2019, the Delegate agreed to extend the time of respond by five working days.[14]
9. On 4 October 2019, the Applicant's legal representative provided a written response to the NOICC, and supporting evidence.[15] In summary, the response:

(a) recounted the 5 May incident form the Applicant's perspective. In summary:

(i) the Applicant claimed that the incident occurred after the victim directed a racially derogatory term at him;

(ii) the Applicant disputed that he had stolen money from the victim;

(b) sought to explain the breach of bail conditions. In short, the Applicant's representative alleged that the Applicant was experiencing behaviour, at the hands of his partner, constituting family violence and that this had caused the Applicant to leave the residence and reside with a supportive friend. It was further alleged that this family violence had "undoubtedly contributed towards" the 5 May incident;

(c) in relation to the existence of grounds of cancellation, asserted that the 5 May Incident arose "out of specific circumstances affecting two drunk individuals in one short incident". It reiterated the Applicant's belief that the act of violence had been sparked by the victim having directed "an offensive, racist and discriminatory mark" towards him. It further asserted that the Applicant had, earlier that night, "intervened in a situation to ensure the safety of his future victim as he was being harassed by a gang of youths" and that this was "evidence of the basis of good character". It also stated that the Applicant had "no previous criminal record";

(d) asserted that cancellation of the Applicant's visa "would cause severe hardship to his wife and child because it would remove a sizeable portion of financial support to them";

(e) submitted that "another factor which should be considered is the Department's policy to give effect to the united Nation's Convention on the Rights of the Child [(Convention)], which requires that the best interest of any affected child under 18 years in Australia be treated as a primary consideration"; and

(f) appended a letter of support from his employer, which asserted that the Applicant was "reliable, respectful and [a] well-regarded member of the team". The employer went on to assert that he respected "the honest Neil has displayed on many occasions" and that "[w]ith the discussions we have had on many occasions regarding values and about his family he speaks with obvious pride".[16]

1. On 18 October 2019, the Applicant's legal representative advised the Delegate that the primary charge had been adjourned for further mention on 4 November 2019, and the charge for breach of bail to 4 December 2019.[17]

1. On 23 October 2019, the Applicant's Partner Visa was cancelled by the Delegate.[18]
2. This power of cancellation is conferred on the Minister (and their Delegates by extension) by s 116 of the Act.
3. The factors the Delegate considered in exercising their discretion were as follows:

(1) The purpose of the Applicant's stay in Australia. The Delegate characterised this purpose as "to remain in Australia permanently with his partner and child and continue his employment". This factor was accorded "little weight against cancelling the visa".

(2) The extent of the Applicant's compliance with visa conditions. The Delegate asserted there was "no information... to suggest the visa holder ha[d] been non-compliant with visa conditions. This factor was accorded "a little weight against cancelling the visa".

(3) The circumstances in which the ground for cancellation arose. The Delegate noted that the Applicant's charges had "not been finalised" and that there had been "no finding of guilt", but was nonetheless satisfied that "Tasmania Police [had] found reason to lay the charges against the [Applicant]" and that these alleged behaviours gave rose "to the possibility [that the Applicant's] presence in Australia... may be a risk to the safety of the community. This consideration was given "significant weight in favour of cancelling the visa".

(4) The Applicant's past and present behaviour to the Department. The Delegate noted that there was no information to suggest that the applicant had been uncooperative with the Department. This consideration was given "a little weight against cancelling the visa.

(5) Legal consequences of a decision to cancel the visa. The Delegate noted that cancellation, in circumstances where the Applicant remained in Australia, would render him an "unlawful non-citizen... liable for detention... and removal under... the Migration Act". The Delegate also noted that the Applicant may be eligible for a Bridging Visa while awaiting the outcome of the Permanent Partner Visa (which was still pending at the time of the Delegate's decision). The Delegate also noted the following (emphasis added):

If the visa is cancelled, the visa holder would be subject to section 48 of the Act, meaning he would have limited options to apply for further visas while in Australia. The provisions of Public Interest Criterion 4013 would also apply in the event of visa cancellation and would prevent the grant of further certain visas to the visa holder for a period of three years from the date of cancellation.

The Delegate accorded this factor "a little weight against cancelling the visa".

(6) Australia's international obligations. The Delegate noted the Applicant's submission that the Convention, and Australia's obligations pursuant to it, should be a primary consideration. The Delegate characterised the information before them, regarding the Applicant's relationship to his child, as "limited", although noted that the Applicant did not "currently share custody of his son". As above, the Delegate did not consider that the cancellation would result in a breach of Australia's obligations under the Convention; the reason for this was as follows:

While I acknowledge that if the visa holder were to depart Australia, he may be separated from his child should the child remain in Australia (and this may cause hardship to the visa holder and / or his child), I do not consider the visa holder's child would be deprived by virtue of visa cancellation from maintaining a relationship with the visa holder, including from Australia. I consider it would be open for the visa holder's child to maintain a relationship with his father via communication facilitated by his mother, or for the child, as an Australian citizen to travel to visit the visa holder.

This consideration was accorded "some weight against cancelling the visa".

1. On balance, the Delegate concluded that the "grounds for cancelling the visa outweigh[ed] the reasons not to cancel the visa".
2. By operation of the Act, this Court has no power to review the decision of the Delegate.[19]

1. On 31 October 2019, the Applicant applied to the Tribunal for review of the Delegate's decision.[20]
2. On 23 November 2020, the Tribunal wrote to the Applicant's legal representative requesting information on whether the charges against the Applicant had been resolved.[21]
3. On 26 November 2020, the Applicant's representative wrote to the Tribunal, informing the Tribunal that the charges had been resolved, and that he would provide an update within seven days.[22]
4. On 4 December 2020 and 11 December 2020, the Tribunal requested updates from the Applicant's representative.[23]
5. On 14 December 2020, the Applicant's representative provided an update, informing the Tribunal they would provide submissions in 'the first half of [that] week'.[24] The Applicant's representative explained that he was "waiting for one very important document which would assist [his] client".[25]
6. On 29 December 2020, the Applicant's representative provided a written statement of the Tribunal, which largely reiterated the submissions made in response to the NOICC. Notably, the statement informed the Tribunal that on 16 December 2019, the Applicant pleaded guilty to the charge and was convicted of assault in the Supreme Court of Tasmania. In consequence, the Court ordered that the Applicant "serve a term of imprisonment of 10 months commencing 8 December 2019 (when he was arrested pending the hearing of the charge) and for the balance of the term (from 16 December 2019) to be suspended upon condition that he not commit any offences punishable by imprisonment for 2 years". [26]
7. The Applicant's representative also provided:[27]

(a) sentencing remarks;

(b) a forensic psychological assessment;

(c) child support documents;

(d) a supporting letter from the Applicant's employer; and

(e) a memorandum of sentence.

1. On 5 January 2021, the Tribunal invited the Applicant to attend a hearing by video conference scheduled for 28 January 2021, to provide an opportunity to give evidence and present arguments.[28]
2. On 7 January 2021, the Tribunal invited the Applicant to comment or respond to information, in respect to the decision under review. Specifically, the Tribunal put to the Applicant that he had been convicted of assault and that the Minister may cancel a visa under s 116 of the Act and r 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (Regulations), if the Applicant has been convicted of an offence.[29]
3. On 17 January 2025, the Applicant's representative provided a completed response to the hearing invitation, confirming attendance, with the Applicant's spouse and mother-in-law to attend as witnesses.[30]
4. On 21 January 2025, the Applicant's representative sought additional time to respond to the invitation to comment on information.
5. Later that day, the Applicant's representative provided a written response to the invitation to comment.[31] The written submissions reagitated prior points, particularly the hardship to which the Applicant and his family may be subject were the Partner Visa was cancelled.
6. On 28 January 2021, the Applicant attended the scheduled hearing by video, accompanied by his representative (Eugene Alexander), his wife (Cyndy Lauper Fielea Naufahu), his father-in-law (Talanoa Manu Prescott Fielea Finau), and mother-in-law (Donna Wright Finau).[32]
7. On 28 January 2021, the Tribunal affirmed the Delegate's decision not to grant the Applicant the Partner Visa. The Applicant was notified in writing the next day.[33]

1. The Tribunal's decision is eight pages long and spans 44 paragraphs.[34]
2. The Tribunal begins its decision by broadly summarising the matter's procedural history, before outlining the law relevant to the Minister's cancellation of a visa on specific grounds under s 116 of the Act. Relevantly, the Minister may "cancel a visa if he or she is satisfied that certain grounds specified in [s 116] are made out". If "satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances".[35]
3. The Tribunal subsequently identified that two such grounds applied on the facts, namely:

(a) s 116(1)(e), which is enlivened, inter alia, where a decision maker is satisfied that the presence of the visa holder in Australia may be a risk to the community. The Tribunal was so satisfied having concluded that there remained a risk of the Applicant reoffending; and

(b) s 116(1)(g), which is enlivened where a decision maker is satisfied that prescribed grounds for cancelling the visa apply to the Applicant. Relevantly r 2.43(1)(oa) of the Regulations prescribe the commission of an offence by the holder of a temporary visa as one such ground.[36]

1. After identifying the existence of grounds for cancellation, and that neither of these grounds required mandatory cancellation (per s 116(3) of the Act), the Tribunal went on to consider whether or not its discretion to cancel the visa in question should be exercised. Accordingly, the following factors were considered:

(1) The purpose of the Applicant's stay in Australia. The Tribunal characterised this purpose as "to enable the applicant to remain with his partner". The Tribunal discussed evidence of the Applicant's "close relationship with his son" (including seeing him daily and the pair "do[ing] a lot of things together", including the playing of sport). The Applicant's mother-in-law asserted that the visa cancellation "would destroy their family", that the Applicant was "a good role model for the child" and that it would be difficult, were the Applicant returned to Tonga, for his wife and child to visit. The Tribunal concluded that the "presence of a wife and child in Australia may constitute a compelling reason for the Applicant to remain in Australia".[37]

(2) The extent of the Applicant's compliance with visa conditions. The Tribunal was "not aware of any non-compliance with visa conditions".[38]

(3) The degree of hardship that may be caused to the Applicant and any family members. The Tribunal accepted that "considerable hardship would be caused to the Applicant and his family" by cancellation. This conclusion was reached in light of the Applicant's close relationship with his son, and despite:

(a) the Tribunal not being satisfied that the removal of the Applicant's financial support would occasion hardship to the Applicant's wife and their child; and

(b) the Tribunal stating the following:

29. ... The Tribunal is also mindful, however, that prior to the applicant making the Partner visa application, the applicant and his wife had made arrangements to see each other and for the applicant to see his son. The applicant's evidence to the Tribunal is that due to financial constraints, he did not apply for the Partner visa for a number of years and that led to his separation from the child, yet the family were able to make arrangements to maintain contact. It is possible that they would be able to do the same, should the applicant be required to leave Australia.

(4) The circumstances in which the ground for cancellation arose. The Tribunal noted that the ground for cancellation arose "because the Applicant ha[d] been convicted of an offence and because the Tribunal has formed the view that the Applicant's presence in Australia may be a risk to others. Relevantly (and despite assertions by the Applicant to the contrary), the Tribunal was "not convinced that a relationship breakdown [necessarily] lead to violence towards others" (both in a general sense and in relation to the Applicant) and relatedly, did not consider that "the circumstances in which the ground for cancellation arose were due to factors beyond the Applicant's control".[39]

(5) Past and present behaviour of the Applicant towards the Department. The Tribunal did not know anything adverse about the Applicant's relationship to the Department.[40]

(6) Whether there would be any consequential cancellations. The Tribunal noted there were "no persons who would be subject to consequential cancellation".[41]

(7) Whether there would be any mandatory legal consequences. The Tribunal noted cancellation would, in the event the Applicant held no other visa, result in him becoming "an unlawful non-citizen... subject to mandatory detention and removal from Australia". It was noted that "the applicant may be subject to an exclusion period in relation to some visa applications offshore... [and that] if the Applicant is not the holder of a temporary visa, that might affect the Applicant's eligibility to be granted a permanent visa".[42]

(8) Any breach of international obligations as the result of cancellation. The Tribunal, in considering any potential breach of the Convention, considered that "it would be in the best interests of the child to remain with both parents" but that "should the Applicant be required to leave Australia, arrangements could be made for him to continue contact with his child and for visits, as was done before the Applicant was granted the visa".[43]

(9) Other relevant matters. The Tribunal decided that:

a) that there were "strong reasons why the visa should not be cancelled". In particular, the Tribunal asserted that "considerable hardship would be cause to the Applicant and his family if the visa [were] cancelled because the Applicant provides financial support to the family... as well as emotional and physical support to his wife and child". The Tribunal went on to note that "[s]uch support may not be available to the same extent" if the Applicant returned to Tonga. The Tribunal ultimately formed the view, on this point, that "the couple would be able to make arrangements to see each other and communicate with each other even if the Applicant [was] not in Australia, as they did in the past" but noted that such an arrangement "may not be preferable".[44] Later, the Tribunal also noted that "the visa in question is a temporary visa so that the various practices and expectations... cannot be assumed until the Applicant has been granted a permanent visa"; and

b) greater weight should be given to the circumstances in which the cancellation ground arose, namely, that "the offending conduct involved [a] considerable degree of violence". The Tribunal were "not satisfied that the Applicant ha[d] engaged in any meaningful rehabilitation" and thus, reiterated its view that "the risk of reoffending remain[ed].

1. In summation, the Tribunal formed the view that the visa should be cancelled and accordingly, affirmed the Delegate's decision.[45]

1. On 5 March 2021, the Applicant applied to this Court for judicial review of the Tribunal's decision dated 28 January 2021 (Originating Application).
2. The Originating Application was brought pursuant to section 476(1) of the Act which confers upon this Court, in relation to migration decisions, the "same original jurisdiction as the High Court under s 75(v) of the Constitution". That is, the Court may undertake judicial review, in respect of matters "where a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth."[46]
3. The Applicant lists one ground of review (with three particulars) in the decision of the Tribunal (reproduced below).
4. The Applicant, if successful in their application for judicial review, seeks the writs of certiorari and mandamus.

1. On 6 April 2021, the First Respondent (Minister) filed its response and opposed the making of the orders sought by the Applicant. The Minister submitted that the application failed to articulate or establish any jurisdictional error on the part of the Tribunal.
2. On 22 September 2021, a Registrar of this Court issued an Order (Registrar's Order) directing the:

(a) Minister to file and serve a bundle of relevant documents (Court Book) by 3 November 2021;

(b) Applicant to file and serve any amended application with proper particulars and affidavit containing any additional evidence by 15 December 2021; and

(c) Minister to file and serve any affidavit on which it seeks to rely by 26 January 2022;

(d) Applicant to file and serve written submissions at least 28 days before the hearing; and

(e) Minister to file and serve written submissions at least 14 days before the hearing.

1. On 4 November 2021, the Minister filed a Court Book.
2. The Applicant did not file an amended application, despite being invited to do so.
3. On 29 January 2026, the Minister complied with the Registrar's Order by filing written submissions.
4. On 4 March 2026, the Applicant's representative provided written submissions and an Affidavit of Kimberley Kate Heap, which annexed an annotated transcript of the hearing before the Tribunal on 28 January 2021.
5. Therefore, the materials before the Court are as follows:

(1) the Originating application filed 5 March 2021;

(2) a Court Book numbering 200 pages filed 4 November 2021 (marked as Exhibit R1);

(3) Written Submissions filed by the Minister on 29 January 2026;

(4) Written Submissions filed by the Applicant on 4 March 2026; and

(5) The Affidavit of Kimberley Kate Heap filed on 4 March 2026.

(a) allocated to the Court as presently constituted on 5 December 2025;

(b) listed for hearing on 10 December 2025; and

(c) heard on 12 February 2026 in person at the Court's Melbourne Registry.

1. At the hearing, the Applicant appeared before the Court represented by Nicholas Poynder, of counsel, instructed by WPM Lawyers. The Minister was represented by Dr Daye Gang, of counsel, instructed by Minter Ellison.
2. At the commencement of the hearing, Dr Gang confirmed that the Minister did not oppose the granting of an extension of time.[47]

THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS

1. In Bhasker v Minister for Immigration and Multicultural Affairs[48] his Honour Judge Fary (as he was then known) summarised the role of the Court in judicial review proceedings:

48. Section 476 of the Migration Act provides that the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution.

49. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Thus, subject to the statutory exceptions provided for in s 476 of the Migration Act, the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Further, s 474 of the Migration Act does not preclude judicial review of decisions under the Migration Act where jurisdictional error is alleged.[49]

50. "The task of the Court [in an application for judicial review] is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it." The court neither consider the merits of the decision nor remakes it.[50]

51. The Court may grant relief if it is satisfied that the decision of the Tribunal is affected by jurisdictional error.[51] Jurisdictional error by a statutory decision maker may manifest itself in a variety of ways. Recognised categories of jurisdictional error include "misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness".[52] Different kinds of error may overlap.[53] The categories are not closed.[54] The critical question is whether the decision maker has exceeded the authority or power conferred by the statute.[55]

52. In most but not all cases, for an error to be jurisdictional, the error must be material to the decision being challenged. The test is whether there is a "realistic possibility" that the decision that was made "could" have been different, but for the error.[56] This is to be determined as "a matter of reasonable conjecture within the parameters set by the historical facts that have been determined".[57] It has been described as an "undemanding" standard.[58]

1. The Court as presently constituted respectfully adopts his Honour's summary of the task before it.
2. Further, disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error.[59]

1. The Applicant lists a single ground for review, which is as follows:

The second respondent (the Tribunal) constructively failed to carry out its task under s 348 of the Act to review the decision of the first respondent, by making a material finding which was based on illogical and fallacious reasoning.

(a) The Tribunal was required to determine whether to exercise the discretion not to cancel the applicant's visa under s 116(1) of the Act by reference to a number of matters, including the effect that the cancellation of the applicant's visa and his removal from Australia to Tonga would have on the applicant's 10 year old son.

(b) The Tribunal, at [29], [39], and [41], considered that the son could remain In contact with the applicant in Tonga by means of an arrangement which pre-dated the applicant's arrival in Australia when the son was less than 7 years old; that is, by the applicant visiting Australia and his son visiting Tonga.

(c) The Tribunal's supposition that the son could revert to the previous means of contact with the applicant in Tonga was illogical and fallacious, in that:

(i) The applicant would be unable to travel to Australia because of the cancellation of his visa.

(ii) The son would be unable to travel to Tonga because of the poor financial circumstances of the family which would result from the removal of the applicant from Australia.

(iii) The existing relationship between the son and the applicant in Australia could not be substituted by a relationship maintained by irregular visits of the son to Tonga, if financially possible, and by other non-contact means of communication.

1. The Applicant contended that the Tribunal "blithely found that the Applicant could simply return to his pre-entry arrangement" of Two-Way Visits (whereby the Applicant would either visit Australia, or his wife and son visit Tonga). The Applicant contended this finding was problematic because:

(a) The Tribunal "appeared to be barely conscious of the restrictions that would be imposed on the Applicant", were he to seek to return to Australia upon cancellation of his visa. Specifically, that:

(i) any subsequent application to visit Australia would be subject to the character test (Character Test) (which would enable the Minister to "refuse a visa because of the Applicant's past and present criminal or general conduct");

(ii) upon cancellation, the Applicant would be subject to public interest criterion 4013 (PIC 4013)[60], which would prevent him from being able to "make a valid application for a Visitor visa for a period of three years from the date of cancellation of his visa, unless there were 'compassionate or compelling circumstances that affect[ed] the interests of an Australian citizen'"; and

(b) the Two-Way Visits were "never a workable procedure; it had taken the wife nearly two years to save the money for the trip and such irregular contact could not replace the nearly four years of face-to-face contact between the applicant and his son in Australia"." It was further asserted that "neither parent would have the financial ability to pay for the money and child to make visits to Tonga with anything like the regularity to replace the close personal contact Josiah had with his father since arriving in Australia".

1. Once the Tribunal assessed that a ground for cancellation existed, it became necessary for the Tribunal to consider its discretion to do so. In doing so the Tribunal correctly stated that "there are no matters specified in the Act or Regulations that must be considered in the exercise of the discretion" (emphasis added).[61] The Tribunal then had regard to the Department's Procedures Advice Manual (PAM3). It is worth re-summarising those considerations:

Purpose of the visa holder's travel and stay in Australia; whether compelling need to stay.

Purpose is to enable the Applicant to remain with his partner [22].

A child from the relationship may enable the Applicant to be granted a permanent visa [23].

The Tribunal accepts that the presence of a wife and child in Australia may constitute a compelling reason for the Applicant to remain in Australia." [25]

This factor weighed against cancelling the visa (i.e. in the Applicant's favour).

Not satisfied removal of financial support will cause hardship to the partner and her child [27].

It is possible that they would be able to do the same [travel to maintain contact] should the applicant be required to leave Australia [29].

Nevertheless, the Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled [30].

This factor weighed against cancelling the visa (i.e. in the Applicant's favour).

Circumstances in which ground for cancellation arose

The ground for cancellation arises because the applicant has been convicted of an offence and the Tribunal has formed the view that the applicant's presence in Australia may be a risk to others [31].

This factor weighed in favour of cancelling the visa (i.e. against the Applicant).

Past and present behaviour of the visa holder towards the Department

The applicant would become an unlawful non-citizen and be subject to mandatory detention and removal [34].

Opportunity of onshore applications for other visas "very limited" [34].

The Applicant "may be subject to an exclusion period in relation to some visa applications onshore" [34].

If the applicant is not the holder of a temporary visa, that might affect the applicant's eligibility to be granted a permanent visa [34].

This factor weighed against cancelling the visa (i.e. in the Applicant's favour).

The Tribunal accepts that it would be in the best interests of the child to remain with both parents [39].

The Tribunal is of the view, however, that should the applicant be required to leave Australia, arrangements could be made for him to continue contact with the child and for visits, as was done before the applicant was granted a visa [39].

Character evidence from work colleague and parents-in-laws accepted [40].

1. Having considered all that was listed in PAM3 (none of which were mandatory), the Tribunal stated its final view having weighed all the relevant matters as follows:

[41] The Tribunal has considered the totality of the applicant's circumstances. The Tribunal finds that there are strong reasons why the visa should not be cancelled. In particular, the Tribunal finds that the applicant is fulfilling the purpose of his stay in Australia as he claims to have reconciled with his partner and has a meaningful relationship with his child and the presence of his family in Australia may constitute a compelling need for the applicant to remain in Australia. The Tribunal accepts that considerable hardship would be caused to the applicant and his family if the visa is cancelled because the applicant provides financial support to the family in Australia and in Tonga, as well as emotional and physical support to his wife and child. Such support may not be available to the same extent if the applicant is required to leave Australia. Significantly, the Tribunal acknowledges that it is in the best interests of the applicant's Australian child to be with his father and it is a primary (albeit not a defining) consideration. In this case, the Tribunal has formed the view that the view that the couple would be able to make arrangements to see each other and communicate with each other even if the applicant is not in Australia, as they did in the past, although the Tribunal acknowledges that may not be preferable. There are strong reasons why the visa should not be cancelled.

[42] However, the Tribunal has decided to give greater weight to the circumstances in which the ground for cancellation arose. The applicant has been convicted of assault and the offending conduct involved considerable degree of violence towards another person. The sentence reflects the seriousness of the offending conduct. The Tribunal is not satisfied that the applicant has engaged in any meaningful rehabilitation and the Tribunal has formed the view that the risk of reoffending remains. The Tribunal is also mindful that the visa in question is a temporary visa so that the various practices and expectations - such as the applicant's support for his family and his employment in Australia and his desire to remain with his family - cannot be assumed until the applicant has been granted a permanent visa. An assessment for his eligibility, which includes character assessment, has not yet been done so there can be no expectation that the applicant will be able to remain in Australia permanently.

[43] Overall, the Tribunal places greater weight on the circumstances in which the ground for cancellation arose and the nature of the offensive conduct. Having regard to these circumstances, the Tribunal has formed the view that the visa should be cancelled.

1. Noting the findings made by the Tribunal, at hearing, the Court as presently constituted raised with the Applicant's representatives the fact that the issue of hardship ("caused to the Applicant and his family if the visa is cancelled") was assessed by the Tribunal as likely to cause "considerable hardship" and weighed against the cancellation of the Partner Visa.[62] Mr Poynder responded that whilst this was the case, absent the perceived flaws in the Tribunal's reasoning, the factor would have been accorded greater weight.[63]
2. The Court rejects this submission. First, it is not clear how much more than "considerable weight" the Tribunal could have given the issue of hardship. But, more importantly, it is well established that the weighing of relevant factors is a matter for the decision-maker and not the reviewing court.[64] This Court is not free to substitute its own opinion for that of the Tribunal on the question of the weight to be given to the various matters to be taken into account. Mr Poynder appropriately conceded the same.[65]
3. Coming then to the ground of view that "the [Tribunal] constructively failed to carry out its task under s 348 of the Act to review the decision of the [Delegate], by making a material finding which was based on illogical and fallacious reasoning."
4. The well-known principles concerning "illogicality" are to be drawn from Minister for Immigration and Citizenship v SZMDS [66] which recognised that illogicality can constitute jurisdictional error, but that the threshold is very high - it is not enough that the reasoning is poor or questionable. In following SZMDS Robertson J in Minister for Immigration and Citizenship v SZRKT[67] held that the ground of illogicality:

...is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions...

Was the Tribunal consciousness of PIC 4013/the Character Test and its impacts upon future contact arrangements

1. It bears restating that neither the legislation nor Regulations expressly identify mandatory considerations in the exercise of the Tribunal's discretion.
2. Mr Poynder for the Applicant contended that the Delegate was alive to the operation of PIC 4013, but the Tribunal was not. Mr Poynder took the Court to the decision in Kautago v Minister for Immigration.[68] It was a decision in which the issue of a consideration of PIC 4013 was relevant. As in that matter, the Tribunal in the present matter identified the relevance of PAM3 was not legally binding. As in that matter, the Tribunal in the present matter considered the impact of cancellation on the family. Beyond that, it is not clear how Kautago otherwise assists the Applicant.
3. The fact that PIC 4013 would apply for a period of three years commencing upon the cancellation of the Partner Visa was accepted by Dr Gang.[69]
4. Whilst the Applicant's representative acknowledged that the application of PIC 4013 was not raised explicitly at the Tribunal hearing, the issue nonetheless "arose clearly on the materials, particularly... the Delegate's decision".[70] The Court accepts that this is the case. As the Delegate stated in its refusal decision:

The provisions of Public Interest Criterion 4013 would also apply in the event of visa cancellation and would prevent the grant of further certain visas to the visa holder for a period of three years from the date of cancellation.[71]

1. The Court put to Dr Gang that the Tribunal plainly failed to deal with PIC 4013 and that this led it to erroneously assert that it was "possible that [the Applicant and his family] would be able [maintain] the same" arrangements for maintaining contact as they had prior to the grant of the Applicant's Partner Visa.[72] In response, Dr Gang submitted that:

(a) the Tribunal anticipated the Application of PIC 4013, as evidenced by its assertion that, "The applicant may be subject to an exclusion period in relation to some visa applications offshore"; [73]

(b) the Tribunal was open to make suppositions at the level that it did, given neither the Applicant, nor his representative, made "specific submissions about specific exclusion periods or that travel would practically be impossible for financial reasons";[74]

(c) references to the Applicant and his family's contact arrangements[75] merely reflected the Tribunal:

(i) leaving open the kind of arrangements that the Applicant and his family might make;[76] and

(ii) finding that "international travel in some form would be possible".[77]

1. The following passage, from the judgment of Justices French, Sackville and Hely in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs ('WAEE')[78] provides useful guidance in considering a Tribunal's failure to reference evidence before it:

[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

1. Further, the reasons of an administrative decision-maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error", nor should these reasons "be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed".[79]
2. Ultimately - and particularly in light of the cautious approach the Court is to take in inferring error in the decision of a Tribunal - this Court is not satisfied that the Tribunal "found that the Applicant could simply return to his pre-entry arrangement". The passages of the Tribunal decision which ground this contention are as follows:

[29] ... The Tribunal is also mindful, however, that prior to the applicant making the Partner visa application, the applicant and his wife had made arrangements to see each other and for the applicant to see his son. The applicant's evidence to the Tribunal is that due to financial constraints, he did not apply for the Partner visa for a number of years and that led to his separation from the child, yet the family were able to make arrangements to maintain contact. It is possible that they would be able to do the same, should the Applicant be required to leave Australia.

[39] ... The Tribunal accepts that it would be in the best interests of the child to remain with both parents. The Tribunal is of the view, however, that should the Applicant be required to leave Australia, arrangements could be made for him to continue contact with his child and for visits, as was done before the applicant was granted the visa.

[41] ... In this case, the Tribunal has formed the view that the couple would be able to make arrangements to see each other and communicate with each other even if the Applicant is not in Australia, as they did in the past, although the Tribunal acknowledges that may not be preferable...

1. The Court is unconvinced - upon a close (and necessarily generous) reading of these extracts - that the Tribunal regarded the Applicant and his family as being capable of returning to the contact arrangement which existed prior to the Partner Visa grant. More specifically:

(a) the statement at [29] merely asserts the possibility of the Applicant and his family making contact arrangements should he be required to leave Australia. The statement does not preclude the possibility of these contact arrangements being purely virtual. "The same" here, does not refer to the nature of the contact arrangement, but to the possibility of maintaining contact arrangements of a form unspecified by the Tribunal;

(b) the statement at [39], as above, merely asserts the possibility of maintaining contact arrangements between the Applicant and his family. Here, the Tribunal specifically refers to visits as a component of these arrangements. Whilst it is possible the subsequent statement ("as was done before the applicant was granted the visa") is suggestive of a two-way visitation arrangement, this cannot be determined with certainty - it is just as possible that the Tribunal was merely referring to visits taking place. In light of the cautious approach to be taken by the Court, this latter interpretation is to be preferred. Importantly, there is nothing - not the operation of PIC 4013 or the Applicant and his wife's (limited) financial means - which suggests that there was categorically no prospect of the Applicant's wife and son visiting him in Tonga; and

(c) the statement at [41], as above, merely refers to the possibility of the Applicant and his family maintaining contact arrangements, including visits. As above, this prospect was not precluded by the limited financial means of the Applicant and his wife, nor by the operation of PIC 4013. "As they did in the past" refers to the maintenance of contact; the mode of contact is not indicated.

1. True it is that the Tribunal makes no reference to PIC 4013/the Character Test, or their operation. Considering this, it was open for the Applicant's representative to argue that the Tribunal was not conscious of the way in which either would significantly impede (and likely, prevent) the Applicant's re-entry into Australia - particularly in the three years following the Partner Visa cancellation. To say that this argument was open to the Applicant's representative to make is not, however, to agree with it. A close consideration of the Tribunal decision does not enable this Court to conclude, with any certainty, that the Tribunal was "barely conscious of the restrictions that would be imposed on the" Applicant's ability to maintain physical contact with his family in the future.
2. Moreover, it is clear that the Tribunal dealt with the possibility of visa restrictions being imposed upon the Applicant, namely at [33], where it asserted that "The applicant may be subject to an exclusion period in relation to some visa applications offshore". This statement, whilst general and cursory, is not incorrect: exceptions to PIC 4013, which enable individuals otherwise prevented from visiting Australia to do so where "compassionate or compelling circumstances" exist, mean that the Applicant's exclusion from Australia - whilst likely - was not guaranteed. Similarly, there is nothing before this Court which would indicate that the Character Test operates, such that upon the expiry of PIC 4013, the Applicant would be barred from entering Australia on the basis of his criminal history.
3. In this sense (and to borrow the phrasing deployed in the extract from WAEE reproduced above) it is clear that:

(a) the issue of the Character Test/PIC 4013 was identified by the Tribunal "at some point";

(b) there is little to indicate the Tribunal's reasons were not otherwise comprehensive; and

(c) it was unnecessary for the Tribunal to definitively draw a conclusion on the impacts of the Character Test/PIC 4013 on the prospective contact arrangements, because such matters were already subsumed in findings of greater generality, namely, that the Applicant's relationship to his family served as a "strong reason why the visa should not be cancelled".

Was the Tribunal consciousness of the "unworkability" of the contact arrangement

1. The second limb of the Applicant's argument is that the pre-existing visitation arrangement "was never a workable procedure" and was incapable of "replac[ing] the nearly four years of face-to-face contact between the applicant and his son in Australia".
2. To the extent that this argument takes issue with the weight the Tribunal ascribed to the prospective contact arrangements and their impacts upon the Applicant's child, it is not one which is capable of establishing jurisdictional error.
3. At hearing, Mr Poynder suggested that, aside from the Tribunal having been "barely conscious" of the Character Test/PIC 4013,[80] it failed to engage with evidence regarding the feasibility of prospective contact arrangements. More specifically, Mr Poynder asserted that the financial difficulties experienced by the Applicant's wife (both at the time of the decision, and prior to the Applicant's immigration) would serve as a considerable impediment to the Applicant and his family maintaining contact through the latter making visits to Tonga post-cancellation.[81] The fact that it took the Applicant's wife took two years to save to visit Tonga was cited as a fact overlooked by the Tribunal. The Tribunal's reasoning, on this point, was characterised as both irrational and unreasonable.[82]
4. It is worth noting, as above, that in the view of this Court, the Tribunal did not assert that the Applicant and his family could merely revert to the same mode and frequency of contact taking place prior to the Applicant's immigration. What the Tribunal did appear to assert was that some degree of physical visitation could foreseeably occur between the Applicant and his family. The Court is unconvinced that this finding was illogical. This is because there was no evidence that the Applicant's wife's financial position had been worsened since his immigration to Australia. The Applicant informed the Tribunal that his wife was receiving $250 a week, in addition to Centrelink Jobseeker payments;[83] his wife confirmed she received Centrelink payments.[84] When asked how she was able to manage visiting Tonga in the past, the Applicant's wife informed the Tribunal that it had taken her two years to save for the trip and that this process of saving had involved personal sacrifices on her part.[85] None of this evidence, which was referenced by the Tribunal in its decision,[86] speaks to the inability of the Applicant's wife to save, as she had previously, in order to visit the Applicant once again in Tonga. No doubt the circumstances would have been difficult of the family. However, there is nothing illogical in the Tribunal accepting that the Applicant and his family would be able to maintain contact, including through (admittedly infrequent) trips to Tonga.
5. In any case, when considering the overall finding made by the Tribunal - after considering "the totality of the applicant's circumstances"[87] - that it should "give greater weight to the circumstances in which the ground for cancellation arose",[88] it cannot be asserted that the substantive decision (to affirm the cancellation of the Partner visa) was illogical. The Tribunal sets out a clear and logical path to its finding. Even if there was a mistake in a finding along the way (i.e. if by "same" the Tribunal meant "identical") there is nothing to suggest that, were the "considerable hardship" finding made in relation to the father/son relationship assessed as greater, it would have tipped the balance in favour of the Applicant retaining his Partner visa. The Tribunal made it clear that its decision was not finely balanced.

(a) The Tribunal was required to determine whether to exercise the discretion not to cancel the applicant's visa under s 116(1) of the Act by reference to a number of matters, including the effect that the cancellation of the applicant's visa and his removal from Australia to Tonga would have on the applicant's 10 year old son.

1. The particular is based on a wrong premise. The Tribunal was not "required" to determine the exercise of its discretion "by reference to a number of matters, including the effect [of visa] cancellation ... on the applicant's 10 year old son." As the Tribunal correctly observed [21] "there were no matters specified in the Act or Regulations that must be considered".

(b) The Tribunal, at [29], [39], and [41], considered that the son could remain In contact with the applicant in Tonga by means of an arrangement which pre-dated the applicant's arrival in Australia when the son was less than 7 years old; that is, by the applicant visiting Australia and his son visiting Tonga.

1. The Tribunal's use of the phrases "go back to the same" [29], "as they had done before" [39] and "as they did in the past" [41] are troubling. The Tribunal does not expressly explain what it means by the "same", "done before" or "in the past". The evidence was that what was done in the past was Two-Way Travel.
2. If that is what the Tribunal meant, it appears to have made a factual mistake. The cancellation of the Applicant's visa would have resulted in severe limitations on his ability to come to Australia. In reality, only one-way travel (the son visiting his father in Tonga subject to considerable financial difficulties) would have been likely. However, the Court accepts the submission made by Dr Gang "that the Court [undertaking] judicial review [should] not take the wording of the Tribunal with an eye so finely tuned to the detection of error".[89] Furthermore, as discussed above, the Court cannot conclude with any certainty that the Tribunal failed to consider the impacts of the Character Test/PIC 4013 on the prospective travel arrangements. Having regard to the evidence before the Tribunal there was a logical basis for it to find that some form of travel like before could continue if the visa was cancelled. In any case, the issue of "considerable hardship" to the son was clearly a matter the Tribunal weighed in favour of the Applicant and against the cancellation of the visa.

(c) The Tribunal's supposition that the son could revert to the previous means of contact with the applicant in Tonga was illogical and fallacious, in that:

(i) The applicant would be unable to travel to Australia because of the cancellation of his visa.

(ii) The son would be unable to travel to Tonga because of the poor financial circumstances of the family which would result from the removal of the applicant from Australia.

(iii) The existing relationship between the son and the applicant in Australia could not be substituted by a relationship maintained by irregular visits of the son to Tonga, if financially possible, and by other non-contact means of communication.

1. The Court has already observed that Two-Way Travel would not have been likely if the visa was cancelled and to the extent that the Tribunal used phrases like "the same" it cannot have meant identical travel arrangements to those that existed before the Applicant came to Australia.
2. However, as the matter was conducted by the Court the better inquiry requires the Court to consider whether the Tribunal failed to engage with certain matters that would prevent the Applicant from returning to Australia. The matters that Mr Poynder contended "the Tribunal simply did not get across".[90]

1. For the above reasons, Ground One does not establish jurisdictional error.

1. For the reasons set out above, this Court is satisfied that the Tribunal's reasons were not infected by jurisdictional error. Consequently, the application for judicial review must be dismissed. An order to that affect will be issued concurrently. The Court will hear the parties on costs.

I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Johns.

[1] Migration Act 1958 (Cth) s 477(1).

[19] Migration Act 1958 (Cth) ss 338, 474, 476(2)(a), 476(4).

[46] EDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 826, [64].

[48] [2025] FedCFamC2G 620.

[49] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

[50] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [17] (Allson CJ, Besanko and O'Callaghan JJ).

[51] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

[52] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152, [3] ('LPDT').

[53] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 2006 CLR 323, [82].

[55] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, [82].

[57] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506, [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

[58] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ).

[59] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, [40].

[60] Migration Regulations 1994 (Cth) sch 4 cl 4013.

[63] 5 March Transcript, 12 lines 23-9.

[64] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

[67] [2013] FCA 317; (2013) 212 FCR 99, [148].

[68] [2020] FCCA 1385.

[69] 5 March Transcript, 16 lines 20-8.

[70] 5 March Transcript, 13 lines 10-9.

[72] CB 198 [29]; 5 March Transcript, 16 lines 30-6.

[73] CB 199 [34]; 5 March Transcript, 17 lines 7-11.

[74] 5 March Transcript, 17 lines 16-20.

[75] See, e.g., CB 198 [29], 200 [39], 200 [41].

[77] 5 March Transcript, 19 lines 36-8.

[79] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481, 491 (Brennan CJ, Toohey,

McHugh and Gummow JJ), citing by way of example McAuliffe v Secretary, Department of Social Security (1993)

28 ALD 609, 616.

[80] 5 March Transcript, 12 line 46 - 13 line 3.

[81] 5 March Transcript, 12 line 34-5, 16 lines 13-6.

[82] 5 March Transcript, 16 lines 17-8.

[83] Tribunal Transcript, 11 lines 6-32.

[84] Tribunal Transcript, 23 line 43 - 24 line 7.

[85] Tribunal Transcript, 26 lines 37-45.

[89] 5 March Transcript, 19 lines 24-25; citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481

[90] 5 March Transcript, 8, lines 37-38.