Stamenkovic v Minister for Immigration and Citizenship [2025] FCAFC 157

1. This appeal raises the question of whether or not the then Administrative Appeals Tribunal (Tribunal) failed to make a determination as to the best interests of minor children in accordance with Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) (a direction made under s 499(1) of the Migration Act 1958 (Cth)) in deciding not to revoke the mandatory cancellation of the appellant's visa pursuant to s 501CA(4) of the Migration Act.
2. The appellant is a citizen of Serbia in the former Yugoslavia. He came to Australia in 1971 when he was four years old, although he returned to the former Yugoslavia in 1988 and remained there for about 15 years. At the time relevant to the determination in question he held a Class AR Subclass 151 (Former Resident) visa. On 11 November 2022, a delegate of the then Minister for Immigration, Citizenship and Multicultural Affairs cancelled his visa pursuant to s 501(3A) of the Migration Act for a failure to pass the character test (as defined by s 501(6) of that Act). The appellant sought revocation of that decision. On 16 January 2024, a delegate of the Minister declined to do so pursuant to s 501CA(4) of the Migration Act. On 5 April 2024, the Tribunal affirmed the decision of the delegate.
3. The appellant then sought judicial review of the Tribunal's decision in this court, his primary submission being that the Tribunal failed to make findings as to whether the non-revocation of the visa cancellation decision was in the best interests of each child affected by that decision, and that such a failure amounted to jurisdictional error. The application was dismissed by the primary judge on the basis that the Tribunal had made an implicit determination regarding the best interests of minor children: Stamekovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 707.
4. The appellant appeals from that decision. He advances one ground of appeal, which substantially replicates the ground advanced before the primary judge, namely that her Honour erred in finding that the Tribunal did not fall into jurisdictional error by failing to make findings as to whether non-revocation under s 501CA was in the best interests of each child affected by the decision.
5. For the reasons that follow the appeal should be dismissed with costs.

DIRECTION 99 AND THE MIGRATION ACT

1. Section 499(1) of the Migration Act allows the Minister to give written directions to a person or body having functions or powers under that Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires a person or body to "comply with a direction under subsection (1)".
2. Direction 99, which commenced on 3 March 2023, provides directions for the making of decisions under ss 501 and 501CA of the Migration Act. Paragraph 5.1(4) of Direction 99 states that its purpose "is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the [Migration Act]". Paragraph 5.2 of Direction 99 sets out principles which "provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA". Paragraph 6 of Direction 99 states that, where relevant, a decision maker must take into account the considerations identified in sections 8 and 9, being, respectively, "primary considerations" and "other considerations". Paragraph 7 of Direction 99 provides that primary considerations should generally be given greater weight than the other considerations, and that one or more primary considerations may outweigh other primary considerations.
3. Paragraph 8 of Direction 99 identifies five primary considerations that the decision maker must take into account. It is the fourth which is presently relevant, namely "the best interests of minor children in Australia".
4. Paragraph 8.4 of Direction 99 relevantly provides:

(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

1. The appellant's appeal ground focuses on the requirement in paragraph 8.4 of Direction 99 for the decision maker to make a determination about whether non-revocation under s 501CA of the Migration Act is in the best interests of each child affected by the decision. He contends that the primary judge erred by not finding that the Tribunal failed to make the relevant findings in this case. The appellant submits that a decision maker must first make a determination about whether cancellation is, or is not, in the best interests of each minor child, and it must then proceed to conduct the balancing and weighing exercise along with the other considerations.

1. The Tribunal took into account the appellant's family, specifically his children and grandchildren, at [192]-[196]. It described those relationships with his children and grandchildren as "complex" and "distant and complex" respectively, ultimately concluding at [197] that primary consideration 3 (ties to Australia) weighed "moderately in favour" of revocation of the cancellation of the appellant's visa.
2. The Tribunal then, at [198]-[199], identified its obligations under paragraph 8.4(1), (2), (3) and (4) of Direction 99, including that "the best interests of each child should be given individual consideration to the extent that their interests may differ". The Tribunal's consideration of the relevant children was then as follows:

200. The relevant minor children in Australia are:

1. Child A, aged 10, is his granddaughter. Her situation is discussed above. The Applicant has never been a primary carer. He claims that her mother does not mind him having contact with Child A. If the Applicant were removed to Serbia, there would be little practical consequence for Child A. He could continue contact electronically. His claim of a deep connection to her is exaggerated and unreliable.

2. Child B, aged 5 or 6, granddaughter. The Applicant has never been a primary carer. This child is under Child Protection supervision. The Applicant has had very limited contact with her. His capacity to communicate electronically would be the same in Serbia as here. His claim of a deep connection to her is also exaggerated and unreliable.

3. Child C, age unknown, R.G's newborn baby - of whom he claimed to possibly be the father. The child is believed to be in the care of Department for Child Protection. It is now clear that the Applicant is not the child's father and that he has no role to play there.

4. The Applicant did not identify any specially relevant connection to the lives of any other children in Australia.

5. If the Applicant were to return to his former anti-social ways, a prospect which I regard as highly likely, he would be of little value to any of the children and indeed, he may directly or indirectly harm them, by presenting such a negative role model.

6. If he were to return to Serbia, he could still remain in contact with the children electronically. This would, from their perspective be essentially a continuation of the established arrangements over the past few years, to the extent that any actually existed.

(Footnote omitted.)

1. Under the heading "Conclusion: Primary Consideration 4" the Tribunal then expressed the following conclusion:
   1. Having regard to all of the above, primary consideration 4 weighs at best slightly in favour of revocation of the Applicant's visa cancellation. In the highly likely event of the Applicant re-offending, this primary consideration would weigh against revocation.
2. The Tribunal restated the first part of this conclusion as part of its summary of conclusions as follows:

237. Primary consideration 4 weighs slightly in favour of revocation.

1. The Tribunal then recorded:
   1. The collective weight of primary Considerations 3 and 4 and Other Consideration (b), are at best modestly in favour of revocation. Even this is only so, in the very unlikely event of the Applicant not continuing to offend. If, as appears very likely, he was to continue with the entrenched behaviours of a lifetime, the weight properly attaching to these considerations would be even further diminished. Primary Consideration 4 for example may, in these circumstances, even becomes a factor also weighing against revocation.

1. The appellant's complaint about the Tribunal's decision, both before the primary judge and in the present appeal, is that despite acknowledging at [198] that it was required to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision, the Tribunal did not proceed to make any such finding. It is said that the Tribunal's findings are "ambiguous" and "not conclusive".

1. As has been mentioned, the primary judge was satisfied that the Tribunal had made an implicit determination about the best interests of the minor children. Her Honour at [38] referred to Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [67] (French CJ, Kiefel, Bell and Keane JJ), noting that the Tribunal's approach is consistent with that taken in NBCM v Minister for Home Affairs [2019] FCA 1013 (Markovic J) at first instance, and by the majority of the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 (Farrell and Halley JJ) (RGKY) and Titoa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 163 (Burley, McEvoy and Needham JJ) (Titoa).

1. It is the appellant's position that, as in Spruill v Minister for Immigration and Citizenship [2012] FCA 1401 (Robertson J), the Tribunal here failed to make the required determination and that the words used by the Tribunal at [207] that "primary consideration 4 weighs at best slightly in favour of revocation of the Applicant's visa cancellation" are not a conclusive or determinative finding. The appellant also maintains that the Tribunal's further observation in [207] that "in the highly likely event of the Applicant re-offending, this primary consideration would weigh against revocation", is not a clear expression of the Tribunal's findings and that the effect of this is that the Tribunal failed to make a finding.
2. The appellant submits that the Tribunal's error is to have conflated the two steps in its reasoning which should have been kept analytically distinct. That is, making a determination about whether revocation is, or is not, in the best interests of the children; and then deciding what weight to give to those interests. It was thus an error, in the appellant's submission, for the primary judge to have found that it is sufficient for an implicit determination to be made about the best interests of minor children, notwithstanding the observations of the majority of the Full Court in RGKY. Insofar as the decision of the Full Court in Titoa sits uncomfortably with this submission, the appellant maintains that Titoa can be distinguished on the basis that there was not the same level of ambiguity in the Tribunal's findings in Titoa as there is in the present case.

1. We do not accept the appellant's submission that the reasoning of the Tribunal discloses jurisdictional error. It is well established, as the primary judge held, that the determination required to be made under Direction 99 in relation to the best interests of relevant children may be implicit: RGKY at [181], [200] (Farrell and Halley JJ); Minister for Home Affairs v NBCM [2019] FCAFC 199 at [25] (Logan, Jagot and Thawley JJ); Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610 at [50]- [52] (Burley J); and Titoa at [24]-[25].
2. As the Full Court observed in Titoa in this respect:
   1. However, in our respectful view it is apparent from the reasons of the Tribunal as a whole that the premise for its conclusion at [133] was that each of the factors considered in the preceding paragraphs led to the attribution of moderate weight in the decision. Indeed, a conclusion as to moderate weight assumes that a determination in favour of the applicant has been made, a matter that the parties did not dispute before the Tribunal. This accords with the approach taken in other decisions of this court including Mailau (upheld on appeal, although the point was not considered); Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 (per Robertson J) at [18]; Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 at [181], [200] (per Farrell, Halley JJ). Indeed, in the present case, our conclusion is supported by the fact that the parties conducted their case before the Tribunal on the mutual assumption that the Tribunal would find that this primary consideration would be determined in favour of the appellant and that the only dispute was as to the weight to be afforded it. That position is confirmed when it is noted that, at [188] of the Tribunal's reasons, it refers to each of the primary considerations in concluding that the discretion should not be exercised in favour of revocation of the mandatory cancellation of the appellant's visa. Included in that list is primary consideration 3 which, it says "weights, at best, moderately, but not determinatively, in favour of revocation".
   2. Contrary to the conclusion reached by the primary judge at [42], we consider that the attribution of moderate weight in favour of revocation of itself indicates that the Tribunal had determined affirmatively that this primary consideration applied on the facts before it. As the majority observed in RGKY, if it had not done so, there would have been nothing to moderate the weight of in relation to that consideration (at [181]).
3. Although the parties proceeded on the basis that the Tribunal in this case did not make an express statement as to whether non-revocation was in the best interests of the children, it is sufficiently clear in our view that the requisite determination was at least implicitly made. We reject the appellant's contention that the Tribunal's findings were ambiguous or inconclusive in relevant respects. We therefore do not regard Titoa to be distinguishable in the way contended for by the appellant.
4. As the respondent submits, after engaging with the material before it, at [207] the Tribunal determined that primary consideration 4 was in favour of the revocation of the appellant's visa cancellation and attributed a weight to it. As in Titoa and RGKY, the Tribunal's attribution of weight in the appellant's favour, together with its consideration of the situation in relation to each child, sufficiently indicates that the Tribunal had affirmatively made the requisite determination as to the best interests of the children. The Tribunal's determination about the best interests of each child as set out at [200]-[206] did not change simply because the Tribunal also stated a differing view in the second sentence of [207], should the appellant reoffend. This should be regarded as reflecting no more than understandable uncertainty as to future events. Paragraph [237] clearly expresses the Tribunal's determination with regard to primary consideration 4.
5. It is also significant in our view, as the respondent also submits, that the Tribunal had referred, at [198], to the need for it to make the relevant determination. The Tribunal's observations at [200]-[207] should be read in this context. Each relevant child was identified and considered, in circumstances where the Tribunal had earlier discussed their particular situations: Child A at [71] and [129], Child B at [87] and [129], and Child C at [128]. Consistently with the observations of the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at [50] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ), we agree with the primary judge that it should not be inferred that in dealing with one matter the Tribunal had forgotten the other parts of its reasons or that the Tribunal quarantined its assessment in some way.
6. There is also force in the respondent's submission that the parties were proceeding on the basis that weight would be given in the appellant's favour to primary consideration 4. The respondent's statement of facts, issues and contentions in the Tribunal conceded that the interests of the minor children should be accorded some weight in favour of a finding that there was another reason to revoke the mandatory visa cancellation decision. In this sense the observations of the Full Court in Titoa at [17]-[21] are relevant.
7. We note, finally, as the respondent submits, that there is nothing to suggest that the Tribunal treated the best interests of the children as something less than a primary consideration (were such a claim to be any part of the appellant's case on the present appeal).
8. The appeal must therefore be dismissed. The appellant must pay the respondent's costs, to be taxed if not agreed. There will also be orders as sought by the parties amending the names of each of the parties.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Stewart, McEvoy and Longbottom.