Samuelu v Minister for Immigration and Multicultural Affairs [2025] FCA 1510

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. Mr Saifoloi Samuelu (the Applicant) seeks review of a decision of the Administrative Review Tribunal (the ART or Tribunal) dated 11 November 2024 to not revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (Visa). For the reasons that I have explained in detail below, I have concluded that the further amended application for review should be dismissed.

1. Mr Samuelu is a 44-year-old man. He was born in Samoa and migrated to New Zealand with his parents in 1987. Mr Samuelu migrated to Australia in 1998 when he was 17 years of age and remains a citizen of both Samoa and New Zealand. On 13 September 2016, he was granted the Visa.
2. On 16 April 2004, Mr Samuelu was convicted of being drunk in a public place, unlicensed driving, failing to answer bail and refusing a preliminary breath test. He was fined $700 and had his license disqualified for two years.
3. In 2018, the Applicant committed criminal damage and unlawful assault. This offending occurred within the context of family violence against his former partner. In the Sunshine Magistrates' Court on 6 August 2021 the Applicant was fined (without conviction) an aggregate $2,000 for that offending.
4. In November 2020, the Applicant was issued an interim intervention order, protecting his former partner. This intervention order is due to expire on 31 December 2030 and prevented the Applicant from going or remaining within 200 metres of his former partner's address or any other place where she works, lives or attends school/childcare.
5. On 23 and 25 April 2021, the Applicant again engaged in offending conduct within the context of family violence against his former partner.
6. At the time of engaging in that conduct, the Applicant was on bail, and as outlined above, subject to an intervention order precluding him from attending the address where his former partner lived. The sentencing judge described the offending conduct on 23 April as follows:

You had apparently learned from your children that [your former partner] and [her current partner] were living in [a suburb], and you had driven around the area until you located their vehicle parked out the front of their address.

1. The Applicant then attended the address and spoke to one of his children, and "began methodically attending each room inside the house" before leaving, and telling his child not to tell their mother he had been present.
2. On 25 April 2021, the Applicant drove to his former partner's address, and after failing to gain access through the front door, he jumped a side fence and went to a rear sliding door, which was locked. The Applicant forced entry via a bedroom window. Two of his children, aged 14 and 20 at the time, attempted to stop him and were shoved aside, while he threatened to kill his ex-partner's current partner. The Applicant's former partner was barricaded with her current partner in the main bedroom. The Applicant punched the door repeatedly, creating a large hole. The Applicant punched his former partner in the head through the hole in the door. The Applicant's 20-year-old child and her partner, and the Applicant's 14-year-old child, attempted to hold back the Applicant, who went to the kitchen, picked up a frying pan, and returned to the bedroom, smashing it on the bedroom door. The sentencing judge records that after that:

You then yelled, 'I'm going to kill you and your daughter' to [her current partner], and you threatened to cut off his head. This is also part of the threat to kill charge. You ripped off your T-shirt and continued to try and enter the bedroom.

1. The Applicant was eventually persuaded out into the garage by his 20-year-old daughter and her partner, where he picked up a dumbbell and threw it at the windscreen of a car, causing it to shatter.
2. In describing the events, the sentencing judge noted that, "[y]ou entered with an intent to assault in circumstances where there was an intervention order in place preventing you from attending at your ex-partner's address" and went on to find that the ordeal was "terrifying for the occupants of the house. [The Applicant's] children were present at the time, and [he] attended with [his] 10-year-old child. The presence of your children is an aggravating feature".
3. On 17 January 2022, the above events were the subject of the following convictions in the Melbourne County Court:

(1) aggravated burglary (person present);

(2) two charges of criminal damage (intent damage/destroy);

(3) make threat to kill;

(4) two charges of contravening family violence intervention order; and

(5) committing indictable offence whilst on bail.

1. For these offences, the Applicant was sentenced to a total effective sentence of two years and nine months' imprisonment with a non-parole period of 20 months.
2. On 10 March 2022, the Applicant's Visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). This was because the Applicant had a substantial criminal record on the basis of having been sentenced to a term of imprisonment of 12 months or more (ss 501(6)(a) and 501(7)(c) of the Act).
3. On 5 April 2022, the Applicant made representations to have the cancellation revoked under s 501CA of the Act. A delegate for the Minister made a decision dated 19 August 2024, finding that Mr Samuelu did not pass the character test and that there was not another reason why the cancellation decision should be revoked (the Delegate's Decision).
4. The Applicant sought review of the Delegate's Decision in the ART. It was conceded before the ART that Mr Samuelu did not pass the character test. The focus in the ART, therefore, was whether there was "another reason" why the cancellation decision should be revoked in accordance with s 501CA(4) of the Act.
5. The ART made a decision on 11 November 2024 to affirm the Delegate's Decision (the ART Decision), supported by reasons of 128 paragraphs (the Reasons or R). It is from the ART Decision that Mr Samuelu now applies for review. Initially six grounds were identified in support of the application for review, however grounds four to six were not pressed. Mr Samuelu sought leave to amend the third ground and rely on a further amended application. I granted leave for the Applicant to rely on the further amended application prior to the final hearing.
6. The Minister for Immigration and Multicultural Affairs (the Minister or Respondent) submits that the remaining grounds do not disclose any jurisdictional error, and the further amended application should be dismissed. The second respondent, the ART, filed a submitting notice on 13 January 2025.

1. Section 501(3A) of the Act provides:

501 Refusal or cancellation of visa on character grounds

...

(3A) The Minister must cancel a visa that has been granted to a person if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of-

(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii) paragraph (6)(e) (sexually based offences involving a child); and

(b) the person is serving a sentence of imprisonment ...

1. The character test is defined in section 501(6) of the Act and provides that a person does not pass the character test if that person has a "substantial criminal record" (s 501(6)(a)). Section 501(7) of the Act defines what is meant by substantial criminal record, which includes where a person has been sentenced to a term of imprisonment of 12 months or more.
2. Section 501CA(1) of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.
3. Section 501CA(4) of the Act provides that the power for the Minister to revoke the decision:

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

1. The Act empowers the Minister to give written directions to a person or body having functions or powers under the Act. Section 499(2A) states that a person or body must comply with a direction under subsection (1).
2. In the Tribunal's review of the decision, they were required to consider and apply Ministerial Direction 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110) under s 499(2A) of the Act when determining whether there was another reason to revoke Mr Samuelu's visa cancellation.
3. Direction 110 includes paragraph 8 which provides for primary considerations that the decision maker must take into account. This includes:

8. Primary considerations

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

1. Direction 110 expands on each of the primary considerations:

8.1 Protection of the Australian community

...

(2) Decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen's conduct to date; and

b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

1. In assessing the risk to the Australian community, paragraph [8.1.2(2)] directed the Tribunal to consider:

8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

...

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the non-citizen reoffending; and

2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

3. where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. The Reasons provide the background and identify the evidence upon which the Applicant relied (R[1]-[13]), outline the legislative history (R[14]-[24]) including to observe that Direction 110 includes principles that provide a framework within which decision makers should approach their task (R[19]), and identify the primary considerations at paragraph [8] of Direction 110 (R[23]) as well as other considerations (in paragraph [9]) that must be taken into account when relevant (R[24]). The Tribunal then identified that the Applicant did not pass the character test because of his criminal record, and that the issue for determination was whether there was another reason for revocation under s 501CA(4)(b)(ii) of the Act (R[25]-[26]).
2. The Tribunal then worked through each of the primary considerations mandated by Direction 110. Various aspects of the way in which the Tribunal undertook that task are the subject of complaint in the grounds relied upon by the Applicant. I now turn to consider those grounds.

1. Ground one of the originating application for review of a migration decision is:

In considering "protection of the Australian community", the Tribunal misunderstood and misapplied the law, attributing adverse weight on the ultimate issue when not able to do so.

1. It was common ground that determining whether there was "another reason" to revoke Mr Samuelu's Visa involved application of Direction 110. This was recognised in the Reasons (at R[19]).
2. In considering the primary consideration of "protection of the Australian community", both parties accepted that this involves a two-step process which required the Tribunal "cumulatively" to have regard to, first, the nature and seriousness of the applicant's conduct to date, and second, the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. The Applicant submitted that this was based upon the analysis by Feutrill J (considering a predecessor to Direction 110, being Ministerial Direction 90), in RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 (RNSQ) at [69]. In that case, Feutrill J held that the equivalent provision was (emphasis in original):

directed to protection of the Australian community from the risk of harm should the non-citizen commit further offences or engage in other serious conduct. That necessarily requires an enquiry into and evaluation of the nature and seriousness of any potential harm and the risk or likelihood of that harm eventuating. A decision-maker upon undertaking that enquiry may conclude that the risk to the Australian community is unacceptable even if the risk is low or very low where the nature of the potential harm is sufficiently serious. The point here is that a decision-maker must assess risk and reach a view as to the extent to which the Australian community needs to be protected from the risk of harm the former visa-holder poses.

an assessment needs to be made of the likelihood of a person engaging in conduct in the future which may cause harm: Tanielu at [102]. It is only after that risk has been assessed or evaluated that the decision-maker is then in a position to consider if the risk is acceptable or unacceptable having regard to the assessed risk to the community and other factors such as the tolerance of the community having regard to the particular circumstances of the non-citizen in question.

1. The Applicant argues that the Tribunal firstly (and correctly) had regard to the "nature and seriousness of the Applicant's conduct" (R[28]-[48]), finding that the "nature and seriousness of the Applicant's conduct weighs heavily against revocation of the cancellation decision". The Tribunal then subsequently assessed "[t]he risk to the Australian community should the Applicant commit further offences or engage in other serious conduct" (R[49]-R[73]). The Tribunal concluded this was another factor weighing heavily against revocation (R[55]). The Applicant argues that this conclusion occurred prior to consideration of the evidence of two reports from a psychologist which consisted of a risk assessment in relation to Mr Samuelu.
2. Effectively, the Applicant argues that the observations of the Tribunal, and the ongoing assessment suggested by the Reasons, discloses error because it does not involve the correct steps in the correct order. This is said to result in findings as to the seriousness of the conduct without any findings about the assessment of risk which involves a misapprehension of the statutory task. It is said to have irretrievably infected the overall weighing exercise such as to require that the decision be overturned.

1. The Applicant's argument relies in part upon the sequence of the Tribunal's reasoning, but also the expression of various conclusions along the way to the final analysis. It is relatively trite to observe that tribunal reasons are not to be reviewed without an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J)), nor does expression of conclusions in a certain sequence indicate a failure to consider evidence as a whole (Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [14] (Gleeson CJ)).
2. The Tribunal correctly identified that it was required to comply with Direction 110, which required consideration of both the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct, and the likelihood of the non-citizen engaging in that conduct (paragraph [8.1.2(2)]). The parties (appropriately) agree that there is no doubt as to the correctness of Feutrill J's formulation in RNSQ.
3. In RNSQ, the Court considered a decision of the Tribunal to affirm the decision of a delegate of the Minister not to revoke the cancellation of a visa under s 501CA(4) and re-affirmed that the revocation of a visa is quintessentially an administrative and political decision (RNSQ at [4]). In that case the Applicant had viewed child exploitation material, and argued that viewing such material did not involve offending directly against any child, so that the Australian community would have a higher tolerance of any risk of that kind, than would be the case of direct offending (RNSQ at [27]). It was in that context that the Tribunal in RNSQ said that if the Applicant's conduct fits within the category of offending against children, any risk of it being repeated was unacceptable (RNSQ at [29]). Effectively, the Tribunal in that case reasoned that even a finding that there existed a low level of risk would be immaterial because the Australian community expected a 'nil' risk (RNSQ at [52]). Ultimately, the core of the issue in that case is that the Tribunal failed to engage with the question of risk of the Applicant reoffending in the manner required by the direction then in force, because the Tribunal had already concluded that nothing turned on the actual level of risk, having determined that whatever it was, it was unacceptable (RNSQ at [63]). The Court held that approach was not available. The Tribunal could not abdicate the "real burden of the task" which was to "bring together the considerations as part of [a] single evaluation of their relative significance thereby weighing them all together" (RNSQ at [68], quoting CRNL v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCAFC 138 at [28] (Colvin, Stewart and Jackson JJ)). In that case the fragmentation was of a kind that led to the relevant balancing not being undertaken at all: the Tribunal effectively said that it would not carry out the balancing, because it could not be persuaded no matter how the factors were balanced (see in particular RNSQ at [76]).
4. This ground requires analysis of the substance of the Tribunal's reasoning in light of the principles arising from RNSQ and related cases. The core analysis of the nature and seriousness of the Applicant's past conduct took place at R[28]-[48].
5. The question of risk was assessed at R[49]-[73]. In the course of that analysis, the Tribunal identified that it was required to have regard to the nature of the harm and the likelihood of the Applicant engaging in further criminal or serious conduct cumulatively. The Tribunal said at R[52]:

Therefore, in assessing risk, the decision-maker must have regard to, cumulatively, the nature of the harm and the likelihood of the non-citizen engaging in further criminal or serious conduct.

1. The Tribunal considered the nature of the harm should the Applicant engage in further criminal or other serious conduct, observing (uncontroversially) that if re-offending occurred, the harm would be potentially significant (R[55]). The conclusion of the analysis is set out at R[70]-[73] as follows (footnotes omitted):

Having regard to the evidence and given the increasing seriousness of the Applicant's conduct, the Tribunal is satisfied that there remains a low risk that the Applicant would reoffend, but that given the seriousness of the conduct, any risk is unacceptable.

The Tribunal notes the protective factors such as close family bonds, employment, and the Applicant's involvement in his church were factors that existed at the time of the December 2018 incident that was reportedly precipitated by the stress of the breakdown of his relationship. The April 2021 offending reportedly occurred in the absence of such an event, although it is acknowledged that the breakdown of the relationship did cause a deterioration of the Applicant's mental health. In December 2018 and in April 2021, the Applicant had the protective factors of close family bonds, employment and involvement with his church. The sentencing judge described the April 2021 offending as 'planned' and that the Applicant attended with the 'pre-formed intent to assault Mr Royce.' The Applicant knew there were children in the house and continued to offend regardless.

The Tribunal has borne in mind that the safety of the Australian community is the highest priority of the Australian government (paragraph 8.1(1)). Acts of family violence are viewed very seriously by the Australian Government and the Australian community (paragraph 8.1.1(1)(a)(iii)). In relation to risk, the Direction provides that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (paragraph 8.1.2(1)).

The Tribunal is of the view that there is a risk, albeit low risk, that the Applicant may reoffend, but that such risk is unacceptable. The Tribunal notes that paragraph 7(2) provides that protection of the Australian community is generally to be given greater weight than other primary considerations. As such, the Tribunal finds that the protection of the Australian community weighs heavily against revocation of the cancellation decision.

1. There is some force in the Applicant's argument when the individual paragraph R[55] is considered in isolation. However, there is no error in the Tribunal explaining some of its interim views as it carries out its analysis, provided that in doing so it does not fail to carry out the analysis ultimately required. Understood in this context, it was not an error for the Tribunal to observe that the Applicant's conduct was serious, nor is it to be inferred that the Tribunal expressed an informed or concluded view that negatived the analysis ultimately undertaken. Unlike in RNSQ where no view was reached about the likelihood of the applicant engaging in further criminal or other serious conduct, in this case, the Tribunal concluded that there was a low risk of re-offending, and assessed that risk as unacceptable in all the circumstances. That is to be contrasted with RNSQ where no such analysis was carried out because the Tribunal pre-emptively concluded that any risk would be unacceptable.
2. The Applicant also complained that the assessment above took place prior to having regard to the psychologists' assessment. Once again, this places too much emphasis on the order of the Reasons. The psychologist's assessment that the Applicant was of low risk was considered (and accepted) prior to the conclusion at R[70]-[73] (extracted above).
3. The Applicant submitted in the course of the hearing that in identifying the seriousness of past conduct "divorced from risk" the Tribunal was considering past crimes in a manner which impermissibly trespassed upon the purview of the criminal courts. As I have explained, I do not accept that the Tribunal failed to carry out a risk assessment: it did so, and in so doing, took into account the Applicant's past offending.
4. On a fair and holistic reading of the Tribunal's reasoning, it is clear that the analysis required by Direction 110 was undertaken. No error is disclosed in ground one. This conclusion makes it unnecessary to consider the materiality of the alleged error.

1. Ground two is also concerned with Direction 110. It is:

In considering the "Expectations of the Australian Community", the Tribunal:

(a) misunderstood the law and asked the wrong question, or

(b) alternatively, made an ultimate finding regarding the outcome of the case prior to considering and having regard to all other relevant considerations before it as a whole.

1. The Applicant asserts that the Tribunal misapplied the law when considering the "Expectations of the Australian Community" under Direction 110. Paragraph 8.5 concerns the expectation of the Australian community for non-citizens to obey Australian laws while in Australia.
2. The expectations of the Australian community are one of the aspects of the evaluation about which reasonable minds could conceivably differ. To counter potentially idiosyncratic decision making, Direction 110 specifies the expectations that are to be taken as being the expectations of the Australian community (FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 (FYBR) at [64]-[67] (Charlesworth J)). Paragraph 8.5(4) expressly provides that the independent assessment of the decision-maker is not called for, stating:

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.

1. In the ART Decision, the ART found (at R[115]) that:

The Tribunal accepts the Respondent's submissions that due to the nature of the offences committed by the Applicant, that he should not hold a visa.

1. It is said that this finding was explicitly made in the context and at the conclusion of the expectations of the Australian community (R[110]-[115]) and that it involved a conclusion about the consideration of the Australian community's views about the outcome in the particular case. The Applicant argues that in approaching it in this manner, the Tribunal misunderstood and misapplied the law, and asked the wrong question, and failed to comply with Direction 110.
2. In FYBR at [66]-[67] Charlesworth J said:

The Minister's submission that cl 11.3 contains a statement of the government's views as to the expectations of the Australian community should be accepted for three reasons. First, there does not exist in fact an Australian community holding a homogeneous view as to the preferred outcome in any one particular case. Second, the clause expressly states that it is an expression of the "government's view". The government's view might be one in respect of which the decision-maker does not agree. Nonetheless, it is the government's view to which the decision-maker should have "due regard". The third reason is a structural reason similar to that expressed by the primary judge at [39] - [41] of her Honour's reasons, to be considered further below.

To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is "deeming", in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a "primary consideration". I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

1. Similar sentiments were expressed by Stewart J in FYBR at [87]-[90]. At [91] his Honour said (emphasis in original):

The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, "community expectations" as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, "community expectations" as expressed by the Government do not speak to the outcome in any particular case - they are to be understood and applied normatively.

1. The Tribunal recognised these repeated exhortations when it said at R[111] that (footnotes omitted):

The Tribunal must have regard to the deemed community expectation as expressed normatively rather than the decision-maker making his or her own assessment of community expectations.

The Tribunal has had regard to the countervailing considerations as set out in the Applicant's submissions. The Tribunal accepts that that the Applicant's strong family ties, and best interests of the minor child weigh in the Applicant's favour. However, the Tribunal notes the very serious nature of the family violence offending committed by the Applicant. In the Tribunal's view the offending increased in frequency and seriousness. The family violence was committed against the victim and her partner in their own home in the presence of young children including the Applicant's minor child and minor grandchild.

The Tribunal accepts the Respondent's submissions that due to the nature of the offences committed by the Applicant, that he should not hold a visa. The Tribunal considers that this factor weighs heavily against revocation of the cancellation decision.

1. It is said that the Tribunal's conclusion at R[114] and R[115] took into account the particular facts and outcome in Mr Samuelu's case. In oral submissions, the error was explained as being that the "Tribunal improperly assessed and answered the specific outcome of Mr Samuelu's particular, individual case". In the way this was developed, counsel for the Applicant accepted that the Tribunal could lawfully conclude that "people don't expect people who commit family violence [offences] to hold a visa" but that the conclusion in R[115] was nonetheless unavailable because it was directed to the nature of the offences committed by the Applicant.
2. The task required by paragraph [8.5] of Direction 110 (having regard to [8.5(4)]) is to ensure that the Tribunal does not substitute its view about whether the individual's conduct is consistent with the community's expectations. It identifies types of conduct which are inconsistent with the expectations of the Australian community. That is separate to the Tribunal's task in identifying what the individual has done. It is self-evidently necessary for the Tribunal to inform itself as to the nature of the Applicant's offending to determine whether their conduct falls into one of the categories in paragraph [8.5(2)].
3. There was nothing inappropriate about having regard to the actual offending of the Applicant: it is the evaluation of this conduct against the normative standards stated in [8.5(2)] to which the evaluation is directed. The Tribunal must not substitute its view of the expectations of the Australian community. The comment by the Tribunal at R[115] was no more than a comment reflecting the significance which Direction 110 places upon those who have committed family violence offences.
4. Furthermore, the comment at R[115] does not constitute the final evaluation by the Tribunal. The conclusion of the Tribunal at R[126] is consistent with the view that the Tribunal weighed the expectations of the Australian community in an appropriate manner, concluding that "the expectations of the Australian community, weigh heavily against revocation of the cancellation decision". There is no error disclosed in ground two. It is therefore not necessary to consider the materiality of the alleged error.

1. Ground three is concerned with what is said to be an unreasonable or irrational consideration of the material before the decision maker. It is put as follows:

The Tribunal acted unreasonably or irrationally in its consideration of the material. It ignored, overlooked, misunderstood, or unreasonably failed to evaluate or consider relevant evidence and clearly articulated submissions before it. These failures meant that the Tribunal was unable to complete its statutory task.

1. There were a number of examples provided which, it was said, demonstrated how the ART had ignored, overlooked, misunderstood or unreasonably failed to evaluate or consider relevant evidence and clearly articulated submissions before it. The Applicant submitted that those failures meant that the Tribunal was unable to complete its statutory task.
2. The principles regarding legal unreasonableness are well established. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 (Allsop CJ, Besanko and O'Callaghan JJ), the Full Court summarised the principles relevant to illogical or irrational decision-making as follows at [33]-[35] (citations omitted):

The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: ...

The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": ... It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. ... [T]he evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: ... such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

1. Thus, legal unreasonableness is concerned with whether the decision is within the scope of the statutory authority conferred on the decision-maker. Generally, it will not be where the decision lacks an "evident and intelligible justification" (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ)). I have considered each alleged misunderstanding separately and cumulatively.

1. In the ART, the Applicant made submissions that the term of imprisonment imposed was at the lower end of the full range of available sentences in terms of duration. It is said that if one considered the availability of concurrent sentences then the total available sentence was 25 years, whereas if one did not consider concurrency, then the total available sentence cumulatively was up to 50 years. The Applicant argued that in these circumstances, there was no intelligible justification for the Tribunal rejecting its categorisation of the duration of the total effective sentence relative to the full range available.
2. This criticism is misconceived. The fact that the ART did or did not adopt the particular characterisation proffered by the Applicant is not to the point. The ART considered the offending in its context in considerable detail, in particular:

(a) it identified the maximum penalties for the relevant offences at R[42] (aggravated burglary: 25 years imprisonment; threat to kill: 10 years imprisonment; criminal damage: 10 years imprisonment);

(b) it accurately identified the actual sentence imposed at R[3]; and

(c) it identified the factors in mitigation that were taken into account by the primary judge at R[42].

1. The only error in terms of the constituent elements of the offending was to omit the five year maximum sentence available for the contravention of the family violence order - an error which could only operate in favour of the Applicant.
2. Having identified the available sentences, and the sentences actually imposed, the Tribunal found that the sentencing Court had determined that "...a term of imprisonment with a lengthy or significant period of supervision on parole was appropriate" (R[42]). That conclusion was open to the Tribunal. It discloses no error.
3. The Tribunal was not required to engage with the labels that the Applicant sought to apply to the conduct - that is, whether it was towards the lower end of the full range of available sentences. The core of the submission was concerned with the seriousness of the offending, and that was clearly addressed. No illogicality or legal unreasonableness is disclosed.

1. The Tribunal rejected Mr Samuelu's submission that his recent and serious offending should be considered an aberration or singular spike in seriousness. The Applicant accepts that it was open for the Tribunal to reach this conclusion.
2. However, the Applicant submits that in considering the frequency and trend in offending, the Tribunal overlooked or misunderstood submissions that Mr Samuelu had:

(1) only been before the courts on three occasions, despite at the time of the decision having resided in Australia for 26 years, with the first occasion being in 2004; and

(2) not offended from 2021 to 2024.

1. It is said that the ART entirely ignored or overlooked the relevant mandatory consideration of "frequency" in offending because it "ignored or overlooked the unchallenged evidence that Mr Samuelu had not offended for the last three years, and the clearly articulated submission that this fact reflected 'a decline or indeed a flatline of any "trend" in the Applicant's offending'".
2. This is difficult to reconcile with R[44] where the Tribunal referred to the submission of the Applicant in the following way (emphasis added):

The frequency of the Applicant's offending and its increasing seriousness is also a relevant factor (paragraph 8.1.1(1)(e)). The Respondent notes that the Applicant committed nine offences between 7 December 2018 and 25 April 2021, with an increase of seriousness in the most recent offending on 25 April 2021. The Respondent therefore contends that the Applicant has offended frequently and there is a trend of increasing seriousness to the offending. The Applicant contends that this submission should be rejected. The Applicant submits that the submission fails to take into account and fairly assess the full history of the Applicant's time living in Australia including the most recent period of time during which the Applicant has not offended.

(1) the Tribunal noted that the Applicant had been before the Court on three occasions in the 26 years that he had lived in Australia (R[45]); and

(2) the Tribunal specifically observed that the trend in the Applicant's offending in 2021 shows a three-year gap since the offending in 2018 and that there was no evidence that the Applicant has offended since (R[45]-[46]).

1. Once again, the Applicant's complaint is focused upon disagreement with the characterisation which the Applicant urged upon the ART below. That is not consistent with the role of this Court in judicial review. The Tribunal considered that there was an increase in seriousness between the December 2018 offending and the 2021 offending, observing that the latter offending involved an escalation in the level of family violence, and involved a degree of pre-planning "designed to terrify the victim and her partner". The Tribunal expressly considered the submission that the lack of offending over the three years between 2021 and 2024 speaks of a "decline" or "flatline" of any trend in the offending (R[45]-[46]). The Tribunal then concluded that the most recent and serious offending should not be considered an aberration or a "singular spike in seriousness" (R[45], [46] and [78]).
2. The Applicant can (and evidently does) disagree with the conclusions of the Tribunal in relation to these submissions, but that falls well short of what is required to establish the ground of unreasonableness or illogicality or a relevant failure to properly engage with the material.
3. The ART turned its mind to the issues raised by the Applicant and the matters required and considered them in the manner required.

Strength, nature and duration of ties to Australia

1. Perhaps the most significant of the issues raised by the Applicant concerned paragraph [8.3] of Direction 110, which required the Tribunal to consider the strength, nature and duration of ties to Australia as a "primary consideration". Paragraph [8.3(1)] specifically stated that the Tribunal "must consider any impact of the decision on the non-citizen's immediate family members in Australia".
2. The Applicant set out a volume of evidence that was before the ART. It is said that the Tribunal's reasons do not mention, or even implicitly account for, the impacts that would be suffered by Mr Samuelu's family, save for "the most basic statements". It is said that the dearth of reference to the impacts on Mr Samuelu's family suggest the ART failed to exercise its jurisdiction on the basis that it either:

(1) misunderstood its task under paragraph 8.3(1); or

(2) overlooked, misunderstood or failed to evaluate the swathe of materials in terms of the impacts of the decision on Mr Samuelu's family.

1. The Applicant argued forcefully that the ART failed to undertake a "proper, genuine and realistic consideration" or the "active intellectual engagement" required, and that there was an unreasonably inadequate engagement with the matters to be considered under paragraph 8.3(1).
2. The submissions of the Applicant outlined in some detail the impacts on Mr Samuelu's immediate family which it was said required a level of engagement by the decision maker within the bounds of rationality and reasonableness. Those bounds were explained in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582; HCA 17 (Plaintiff M1) (Kiefel CJ, Keane, Gordon and Steward JJ) at [25] (citations omitted):

It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

1. However, the plurality in Plaintiff M1 at [26] was also careful to explain that labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in context, lest they create a "kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision maker's] decision can be scrutinised". The plurality was careful to emphasise that the role of a court reviewing the exercise of an administrative discretion is limited and that limitation must be "constantly borne in mind" (Plaintiff M1 at [26]).
2. The Tribunal identified at R[12] the evidence that was called by the Applicant, and at R[13] identified documents that were admitted into evidence at the hearing. While these matters make clear that the material was not overlooked entirely, a mere mention of the material is, of itself, insufficient. At the core of this ground is the question of whether there was an active intellectual process, or a proper, genuine and realistic consideration of material concerning the impact of the decision on the non-citizen's immediate family members in Australia. It requires an overall analysis of the Reasons, that is not simply limited to segments in isolation.
3. The mere fact that the evidence was voluminous is not determinative. The fact that there is a large volume of material does not necessarily dictate the length of a judgment analysing that material. The engagement must be genuine. Undertaking a comparison of the length of the evidence and the length of a judgment is likely to do no more than encourage meaningless verbiage and repetition.
4. A number of aspects of the reasons are relevant:

(1) The Tribunal made a finding that the Applicant "has the support of his family, friends and church" (at R[65]). In support of that finding, the Tribunal refers to the bundle of references tendered from his immediate family, including children, siblings, father, cousins and family friends. There is also reference to the Applicant's pastor and church leader who wrote in support of the Applicant. The Tribunal records that one of those statements, provided by Mr Molimau Farani, the Applicant's friend and church leader, outlines that the Applicant has been attending the same church for nearly 20 years, and that he maintains a role as "High Chief" in the Samoan community. The Tribunal then quotes from the statement in support filed by Mr Farani (R[65]). These are matters which demonstrate the Tribunal has read and considered and synthesised findings from the material tendered in support.

(2) The Tribunal then records the oral evidence received from the Applicant's children, adult siblings and sister-in-law, and recounts in short form parts of the evidence given orally by them (R[66]).

1. It is clear therefore that the evidence has been engaged with. The accounts from the Applicant's immediate family were not "overlooked". In terms of the evidence and its impact on the immediate family members who have a right to remain in Australia indefinitely, the following observations may be made:

(1) The Tribunal noted that none of the witnesses indicated that they thought the Applicant was at risk of re-offending and records the Applicant's plans to reside with his family if released to provide support to his elderly father (R[67]).

(2) The fact that the Applicant and his four children and one minor grandchild were born in and live in Australia, and that he has frequent contact with them, was recorded by the Tribunal (R[85]).

(3) The Tribunal appears to have accepted that his four children and his grandchild planned to live with him upon his release (see R[86]).

(4) The Tribunal accepted that the Applicant has strong ties, including through his family, noting that he had received many letters of support from them (referring specifically to parents, siblings, nieces, nephews and cousins in Australia) as well as referring to the oral evidence making it plain that he has strong ties to Australia via his family (R[87]).

(5) The Tribunal makes a finding that the Applicant has strong ties through his solid employment record, and strong ties as an active member of the local church (R[87]).

1. As evident from the above summary, the Tribunal engaged with the evidence, albeit without extracting and summarising each piece of evidence at length. It did so after identifying (at R[83]) that decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia. The Tribunal accepted the submission that was made in reliance on the voluminous material filed by family and friends, that the Applicant had strong ties through his employment, family and church (R[89]). The Tribunal concluded, based on those findings, that the consideration in paragraph 8.3(1) (being the strength, nature and duration of ties to Australia) weigh in favour of revocation (R[89]).
2. To the extent that the Applicant argues that the evidence was overlooked, or was not properly engaged with, I do not accept that submission. The analysis set out above demonstrates an active intellectual engagement with the core issues that the Tribunal was required to consider by reference to the evidence relied upon.
3. The Applicant argues that merely identifying issues does not address the impact that his potential deportation has on them. For example, it is said that observing the fact that the Applicant has frequent contact with his children, does not identify why his deportation would impact them. This aspect of the Applicant's argument has some force. The decision in question is a serious one. However, I have concluded that the Applicant's argument relies upon an unduly narrow reading of the Reasons. A fair reading of the Reasons makes clear that the Tribunal identified those matters which would be lost by revocation because they are identified as matters weighing against revocation (for example, R[89]). The positive aspects of the Applicant's presence in Australia are clearly identified, in the context of the reasons which are contemplating (effectively) the deportation of that person. The Tribunal is identifying and analysing the positive aspects of the Applicant's association with the Australian community as matters which favour revocation on the basis that those positive matters would be absent if the Applicant were deported.
4. In considering all of these matters together, the Tribunal concluded that the strength, nature and duration of ties to Australia weighed in favour of revocation. In reaching that conclusion, it was not necessary to positively state the converse of each proposition which the Tribunal identified as favouring revocation, i.e. in accepting that his engagement with his children was a matter which favoured revocation, it was not necessary to state that the inverse was true: that his remaining in Australia would benefit the children. The approach preferred by the Applicant would create duplication and recitation in reasons as opposed to the genuine engagement which the authorities require.
5. The Applicant's submissions listed parts of the evidence relating to the impact on family members that were said to not have been considered or properly engaged with by the Tribunal. To take one example, evidence provided by Mr Samuelu's daughter stated that she would be impacted by:

(a) a lack of fatherly support, wisdom and guidance in raising her own child;

(b) an inability to receive support raising her daughter, compounded by the fact that she is a single mother and her child has developmental delays, is non-verbal and likely has autism, and that the child's father only sees her around 2-3 hours a month;

(c) a potential inability to maintain a loving bond with her father;

(d) an inability to move in with her father;

(e) the emotional challenge of being separated from her father whom she misses and loves;

(f) the loss of financial and emotional support;

(g) the inability to visit her father due to a lack of money; and

(h) continued strain and challenges to fill the parental void for her siblings, including while working and being a parent.

1. The Tribunal's decision refers compendiously to many of these matters about Mr Samuelu's family. The Tribunal identifies the ages of all his children and the age of his minor grandchild as being three years old (R[85]). The Tribunal refers to the Applicant's "frequent contact with his children through calls and text messages" and to his regular visits with his children and grandchild (R[85]). The intention of the children and grandchild to live with the Applicant upon release, encompasses the notion of financial and emotional support which the Applicant's children seek to have by Mr Samuelu's continued presence in Australia. The balance of the concerns relate primarily to reduced contact with the Applicant, which is the natural sequela to a separation of the kind the Tribunal was considering. It is then expressly considered in the context of the grandchild at R[106] where the Tribunal said (footnotes omitted):

The minor grandchild resides with the Applicant's daughter and the Applicant's ex-partner (the minor grandchild's grandmother). Ms F has given evidence that she is no longer with the father of her child but that they see each other about once a month. Ms F has stated that she had initially relied on her father's financial and emotional support as well as his role as a fatherly figure in her child's life. In relation to this consideration, the Tribunal accepts that the Applicant has played some role in his grandchild's life but otherwise gives this consideration neutral weight as the child has other people who already fulfill a parental role in relation to the child including the child's mother, and to a lesser extent the child's father.

1. In addition, the Tribunal specifically accepted in relation to all minor children in the Applicant's extended family that "...it is in the best interests of those minor children if their uncle and family member were present in their lives and that this weighs in favour of revocation" (R[108]). Once again, while the Tribunal has adopted its own methodology, rather than the specific framework advanced by the Applicant, there can be no criticism on that basis. The Tribunal engaged appropriately with the material and has identified the matters which were said by the Applicant to favour revocation. The Tribunal often accepted that these matters did favour revocation, but differed in respect of the weight to be accorded those matters. While I have set out one example of the way in which the Tribunal responded to the specific concerns of the Applicant, I have considered carefully each of the examples set out in the Applicant's submissions. Without exhaustively responding to each complaint, a serious concern involved the evidence of the Applicant's father, and his various limitations arising from illness. However, I have concluded that those matters are identified and engaged with, albeit in the section of the Reasons recounting evidence received in support of the Applicant. The Tribunal observed that the witnesses (R[67]):

were aware of the Applicant's plans to reside with his parents if released and provide support to his elderly father who has a range of serious health issues including prostate cancer. The Applicant's father needs assistance to attend medical appointments and the Applicant's mother and sister do not drive which places a strain on other family members. If none are available, the Applicant's father has to arrange his own transport to appointments which, the Applicant's sister confirmed in examination-in-chief, places a financial burden on him.

1. The position of the Applicant's father and his limitations were therefore part of the analysis of the Tribunal.
2. The Applicant also referred to the report of the psychologist who made general observations about negative consequences of his removal, based in part upon the broad proposition that "[c]hildren with 'absent fathers' are more likely to experience a myriad of problems, including diminished self-concepts, and compromised physical and emotional security". The Tribunal engaged in detail with the report of the psychologist at various points throughout the materials, and accepted the risk assessment proffered by her. There is no reference to this particular passage; however, it is cast at such a level of generality that I do not consider separate consideration to be required.
3. The extract from the psychologist's report is not an assessment of the particular minor children in this case, but a generalised comment about children with "absent fathers". It does not factor in the impact of a father who has engaged in domestic violence, particularly where it was carried out following a degree of pre-planning, and while aware that his minor child and grandchild were present in the house (R[71]). I can see no error by a simple failure to refer to one aspect of the overall report that was otherwise largely accepted by the Tribunal insofar as it assessed the Applicant as being at a low risk of reoffending (R[70]).
4. I am satisfied that a fair reading of the Reasons demonstrate that there was an active engagement with the evidence before the Tribunal. I do not accept that the Reasons "do not mention, or even implicitly account for, the impacts that would be suffered by Mr Samuelu's immediate family". Those impacts are considered throughout the Reasons, and have been taken into account by the Tribunal in its analysis of paragraph 8.3 of Direction 110.

1. The Applicant referred to a range of other matters that are said to be mandatory relevant considerations by reason of paragraph [8.3(2)] and the principles in paragraphs [5.2(5)-(6)] of Direction 110. They are the need to consider "any other ties" the Applicant has with the Australian community and the need to consider of the time spent in Australia, alongside how much of that time was spent contributing positively.
2. The Applicant argues that in considering the "strength, nature and duration of ties to Australia" consideration, the Tribunal "made no mention of whether or not Mr Samuelu had been positively contributing to the community nor the amount of time that he had been doing so". I am unable to reconcile that submission with the Reasons, which make clear that the Tribunal accepted that Mr Samuelu had strong ties to Australia, and specifically references as positive matters the Applicant's connections with Australia, including by referring to:

(1) his family, including the support that he sought to offer his children, grandchildren and father;

(2) his solid employment record of 15 years with one company; and

(3) strong ties as an active member of his church.

1. These are matters identified as weighing generally in favour of revocation and are cited at different places throughout the Tribunal's analysis. As noted above, there is explicit reference to the evidence provided by the Applicant's family, and the impact of his absence upon them (R[83]-[89]). The fact that these are matters that have been operative over the period of his life in Australia spanning two decades, is clear on a fair reading of the Reasons in their context.
2. The general complaint that the Tribunal failed to exercise its jurisdiction by failing to properly have regard to Mr Samuelu's ties in Australia, because it made no reference to the "duration" or "nature" of the family social links applies undue focus on the incantation of particular words. It is clear that the Tribunal had in mind the period of time that the Applicant had been in Australia, and specifically referenced the period of his employment of fifteen years with the same company. The age of his children and grandchild are referred to. In relation to his association with his church, there is a specific reference to his nearly 20-year involvement (R[65]).

1. The Tribunal was required to consider the best interests of minor children affected by the decision as a primary consideration. The core of the complaint as explained in oral submissions concerned the impact of the separation on the Applicant's minor child. The Applicant complaints that the Tribunal's consideration of this issue is "entirely superficial with an unreasonable failure to consider or engage with the variety of unchallenged evidence and submissions regarding the detrimental effects on [the child]".
2. The Tribunal considered the relationship between the Applicant and his minor child, a 13-year-old boy. It accepted that the Applicant had a close relationship with the child (R[94]). The Tribunal noted the Applicant's intention to guide and mentor the child like a role model, and to be better for him. This was taken into account in favour of revocation (R[95]). The Tribunal went on (at R[97]) to consider the effect of separation:

The Tribunal accepts that separation of the minor child from the minor child's father would have an impact. However, the Tribunal notes that the minor child and the Applicant can still maintain the contact they have now through calls and text messages should the Applicant be removed from Australia. The Tribunal gives the consideration under sub-paragraph (d) some weight in favour of revocation.

1. The Tribunal engaged with the issues around the minor child, and weighed them, including the negative impact if the Applicant were to offend again, noting that the previous offending had taken place while the minor child was present, and that it was characterised by the sentencing judge as "terrifying for the occupants of the house".
2. The suggestion that the Tribunal should have specifically referred to one part of the psychologist's evidence about the generalised proposition that father benefit by the presence of a father is not a material or relevant error in the circumstances of this case. The Tribunal was clearly alert to the detriment of the Applicant being absent, including because he is the father of a minor child.

1. The Applicant referred to Soliman v University of Technology Sydney & Anor [2012] FCAFC 146 (Marshall, North and Flick JJ) in which the Court noted (at [57]) that:

Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error ... eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case.

1. With respect, I consider that to be an apt reminder with which I agree. However, this case is not an example of "an absence of reasons or reasons devoid of any consideration of a submission central to a party's case". I have set out above my conclusions in relation to each category of deficiency alleged by the Applicant. For the reasons that I have explained, I have rejected the argument that the Reasons fall into an error of the kind alleged in respect of each separate contention. I have also considered the cumulation of the complaints proffered by the Applicant. I do not accept that taken together the concerns about the approach taken by the Tribunal disclose error of a kind to attract this Court's jurisdiction.
2. The third ground was put in various ways, including that the dearth of reference to the impact on Mr Samuelu's immediate family suggest that the Tribunal failed to exercise its jurisdiction. There is no credible suggestion that the Tribunal failed to understand its task under paragraph [8.3(1)]. As set out above, it engaged with the issues and the evidence, and made findings called for by the Direction and its statutory task. While the third ground was the strongest of the bases for review identified, I am satisfied that the Tribunal understood its task, and that its level of engagement with the material was appropriate, genuine and targeted to the issues that had to be determined. The Tribunal was well aware of the family circumstances of the Applicant and the Reasons that they, and he, would be impacted by the revocation decision that the Tribunal made. The decision which the Tribunal made was within the scope of those available to the Tribunal as the trier of fact.

1. It follows from the above that I am satisfied that there was no error of the kind alleged by the Applicant in the Reasons. It is therefore appropriate that the further amended application be dismissed, with costs (subject to any contrary submission as to costs).

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.