Trout v Minister for Immigration, Citizenship and Multicultural Affairs

Background 5 The applicant was born in New Zealand in 1983 and is a citizen of that country. Since arriving in 2010, other than two brief periods overseas, he has lived in Australia. 6 The applicant has a son born in 2012 and daughter born in 2014, both of whom have serious medical conditions. The applicant's relationship with his children's mother broke down partly due to strain caused by the children's health issues. 7 The applicant has a fairly extensive criminal record. His offending in Australia commenced in October 2018 and continued until August 2020. The offences relate to illicit drugs, stealing, theft, breaking and entering, possession of stolen goods and contraventions of domestic violence orders. 8 On 27 April 2020, the applicant was convicted of two counts of 'enter premises and commit indictable offence' and two counts of 'enter premises with intent' in the Magistrates' Court of Queensland. On 27 November 2020, a delegate of the Minister cancelled the applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501(3A) of the Act (cancellation decision). 9 The applicant made representations to the Minister, on 25 November 2020, requesting revocation of the cancellation decision. On 23 February 2021, a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke visa cancellation (non-revocation decision). 10 On 25 February 2021, the applicant sought review by the Tribunal of the non-revocation decision pursuant to s 500(1)(ba) of the Act. On 18 May 2021, the Tribunal affirmed the delegate's decision. The Tribunal's decision record is referred to in these reasons as RFD. 11 On 30 November 2021, the applicant filed an extension of time to apply for judicial review of the Tribunal's decision and a draft originating application under r 31.23 of the Federal Court of Australia Rules 2011 (Cth). On 13 July 2022, the applicant filed an amended draft notice of originating application. By written submissions of the applicant filed on 10 November 2022, the applicant, in substance, sought leave to file a further amended draft notice of originating application in which he sought to advance the amended grounds of review referred to earlier in these reasons.

Legislative framework 12 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, relevantly because of the operation of s 501(6)(a) and s 501(7)(c) (substantial criminal record on the basis of a sentence of imprisonment of 12 months or more) and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory. It is common ground that the applicant does not pass the character test. 13 A consequence of the cancellation of a visa under s 501(3A) is that that the former visa holder is no longer a lawful non-citizen and instead becomes an unlawful non-citizen: ss 13, 14, 15 of the Act. The former visa holder must be taken into immigration detention and must be removed (deported) from Australia as soon as reasonably practicable: ss 189 and 198 of the Act. Upon completion of the applicant's last prison sentence that applicant was taken into immigration detention where he remains. 14 Sections 501CA(3) and 501CA(4) of the Act makes provision for a procedure by which the decision to cancel a visa under s 501(3A) (referred to as the original decision) may be revoked. As soon as practicable after making the original decision the Minister must: (a) give the person a written notice that sets out the original decision and particulars of certain information the Minister considers would be the reason, or part of the reason, for making the original decision (referred to as relevant information); and (b) 'invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision'. Regulation 2.52 of the Migration Regulations 1994 (Cth) makes provision for the manner in which representations are to be made to the Minister. Section 501CA(4) of the Act provides that the Minister may revoke the original decision if: (a) the former visa holder makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test; or that there is another reason why the original decision should be revoked. 15 Section 496 of the Act confers power on the Minister to delegate to a person any of the Minister's powers under the Act. The Minister's power to revoke an original decision under s 501CA(4) is usually exercised by a person to whom the power to do so has been delegated. 16 Under s 499(1) of the Act, the Minister has the power to 'give written directions to a person or body having functions or powers under this Act if the directions are about the performance of those functions or the exercise of those powers'. Section 499(2A) provides that decision-makers must comply with a direction that is in effect. At the time of the non-revocation decision, the direction in effect under s 499, in relation to the exercise of the powers in s 501CA(4), was Direction 79. By the time of the Tribunal decision, Direction 79 had been replaced by Direction 90, with effect from 15 April 2021. Section 3 of Direction 90 provided that 'Direction no. 79, given under s 499 of the Migration Act…and dated 28 February 2019, is revoked with effect from the date this Direction commences'. 17 Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called in question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to revoke a mandatory cancellation of a visa is a privative clause decision. However, where a delegate of the Minister has made such a decision, the former visa-holder has a right to apply to the Tribunal for a 'review' of that decision under s 500(1)(ba) of the Act. A decision of the Tribunal under s 500(1)(ba) is also a privative clause decision to which s 474 of the Act applies. 18 Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under s 75(v) of the Constitution: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [76]. Where the Tribunal has made or purported to make a privative clause decision, the High Court's jurisdiction to review such a decision for jurisdictional error is conferred on the Federal Court. Otherwise, s 474 of the Act and s 43C of the Administrative Appeals Tribunal Act 1975 (Cth), exclude any right to appeal to the Federal Court from a decision of the Tribunal that is a 'privative clause decision'. 19 The Federal Court's original jurisdiction to review a decision of the Tribunal is derived from ss 75(v) and 77(i) of the Constitution and s 476A(1)(b) of the Act. The effect of ss 474 and 476A of the Act is to limit the jurisdiction of the Court to the same jurisdiction as that which the High Court is able to exercise under s 75(v) of the Constitution with respect to a 'migration decision' that is a 'privative clause decision or a purported privative clause decision' of the Tribunal on review under s 500(1)(ba) of the Act. The Court's power on such a review is limited to considering the extent to which the Tribunal exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. 'The inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred': Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160]. 20 The constitutional writs referred to in s 75(v) of the Constitution extend the Court's jurisdiction to grant relief in the form of: an order restraining the Tribunal from exceeding its jurisdiction (writ of prohibition); an order commanding the Tribunal to fulfil a statutory duty that remains unperformed, actually or constructively (writ of mandamus); or an injunction. The Court also has jurisdiction to grant relief ancillary to the constitutional writs in the form of an order quashing or setting aside a decision that was made in excess of the limits of statutory authority or a declaration of right pertaining to the exercise or failure to exercise power: e.g., Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at [176].

Preliminary matters 21 Section 477A(1) of the Act provides that an application to the Federal Court seeking a remedy in the Court's original jurisdiction in relation to a migration decision must be made within 35 days of the date of the challenged decision. Under s 477A(2), this Court may extend time if satisfied that 'it is necessary in the interests of the administration of justice'. As the Tribunal's decision was made on 18 May 2021 and the application to this Court was filed on 30 November 2021, the applicant requires an extension of time of more than five months. 22 As the applicant now wishes to advance different grounds of review to those identified in the draft application for review filed with the application for an extension of time, in point of detail, the applicant must amend his originating application, in effect, to apply for an extension of time to raise the further amended proposed grounds of review. Rule 8.21(1)(g) of the Rules allows a party to apply to the Court to amend an originating application in order to add or substitute a new claim for relief, or a new foundation in law for a claim of relief, that arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim. The power of the Court to grant or refuse leave to amend must be exercised in a way that accords with the Court's overarching purpose of the civil practice and procedure provisions (to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible): s 37M of the Federal Court of Australia Act 1976 (Cth); Australian Securities and Investments Commission v Cassimatis (No 6) [2016] FCA 622 at [8] per Edelman J. 23 Here, the proposed amended grounds of review are based on the same facts as the original draft application. I also consider it to be relevant that the proposed amendments were requested after the appointment of a pro bono representative for the applicant. The respondent opposes the amendments on the basis that the proposed new grounds lack merit. Given that the applicant requires an extension of time before he can advance any application for judicial review and the merits of the proposed grounds are a relevant consideration in the exercise of the Court's discretion to extend time, the merits are also relevant to the exercise of the Court's discretion to grant leave to amend having regard, in particular, to the overarching purpose of the civil practice and procedure provisions. 24 The Court has a broad discretion to extend time under s 477A(2) of the Act, but it is not without limitation and the level of satisfaction the Court must reach before deciding that it is 'necessary in the administration of justice' to extend to time is not low. In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 at [12] the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) expressed the nature of the discretion as follows: 12 On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. 25 The applicant submits that the delay is 'readily explicable' by reference to his lack of legal training, and that he was self-represented and in immigration detention at the time of filing. The Minister contends that this explanation offers no more than generalised assertions unsupported by evidence, and that the applicant is in no different position to other applicants in detention. The Minister further submits that even if the applicant had not been represented at the time of filing, no further explanation as to the delay has been forthcoming since the applicant gained legal representation. During oral argument, counsel for Minister invited the Court to draw an inference that the applicant would not have been able to provide any further explanation as to the required extension of time that would assist him: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. 26 Although the delay of five months is not particularly excessive, the Court has not been furnished with any explanation through evidence of the reason(s), if any, for the applicant's delay filing his application. An inference may be drawn of some degree of difficulty complying with the 35 day time limit by reason of the applicant's self-representation, evident lack of legal training and his presence in detention, but the applicant has not proffered any explanation for the reason he was apparently unable to make his application for four months after the time limit expired. Having regard to the applicant's self-representation at the time he applied for an extension of time, I do not draw a Jones v Dunkel inference, but, otherwise, on the evidence before the Court, there is no adequate explanation for the applicant's failure to comply with the time limit. 27 As to prejudice, the respondent has not raised any prejudice to either the respondent or third parties that would arise from allowing an extension of time, other than the general public interest in finality in administrative decision-making. Accordingly, the questions of delay and prejudice are relatively neutral factors in this case and the matter largely turns on whether the merits of the proposed grounds of review warrant the grant of the requested extension in the interests of the administration of justice. 28 As to the question of merits, in Katoa the majority said (at [18]) (footnotes omitted): 18 … there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the application may be required to show that their case is strong or event "exceptional". In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time. 29 There is sufficient merit in both amended grounds of review to justify an extension of time in the interests of the administration of justice. Therefore, I would grant the applicant leave to amend his originating application so as to permit him to request an extension of time to apply for judicial review on the amended grounds. The merits of these grounds are addressed later in these reasons.

Direction 90 30 As noted earlier in these reasons, at the time the delegate made the decision not to revoke the cancellation of the applicant's visa, Direction 79 applied to the delegate's exercise of the Minister's power under s 501CA(4) of the Act. At the time of the Tribunal's decision, Direction 90 applied to a delegate's exercise of that power and it was Direction 90, and not Direction 79, to which the Tribunal referred in the Tribunal's reasons for decision. There are a number of differences between Direction 79 and Direction 90 concerning the approach to be taken to family violence that are of relevance to the applicant's offending and representations. 31 Both Direction 79 and Direction 90 contain a preamble that set out, amongst other things, principles that provide the framework within which decision-makers should approach that task of deciding whether to revoke a mandatory cancellation of a visa. In that section, Direction 90 included a new s 5.2(5) as follows: Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. 32 Both Direction 79 and Direction 90 set out 'Primary' and 'Other' considerations for decision-makers. Both directions included 'Protection of the Australian Community' as a Primary Consideration. However, the factors for consideration of the 'Nature and Seriousness of the Conduct' differed in Direction 90 which placed added emphasis on family violence. The relevant parts of Direction 79 and Direction 90 are set out in the table below. Direction 79 Direction 90 (1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including: (1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following: (a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously; (a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: (b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. (i) violent and/or sexual crimes; … (ii) crimes of a violent nature against women or children, regardless of the sentence imposed; (iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed. …

33 Direction 90 also included a new Primary Consideration for family violence as follows: 8.2. Family violence committed by the non-citizen (1) The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph 3 below). (2) This consideration is relevant in circumstances where: a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under s 501 or section 501CA has been afforded procedural fairness. (3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant: a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness. b) the cumulative effect of repeated acts of family violence c) rehabilitation achieved at time of decision since the person's last known act of family violence, including i. the extent to which the person accepts responsibility for their family violence related conduct ii. the extent to which the non-citizen understand the impact of their behaviour on the abused and witness of that abuse (particularly children) iii. efforts to address factors which contributed to their conduct. d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning would not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence. 34 There are other differences, but the most relevant differences for the applicant are those concerning the approach to family violence having regard to his offences for breaches of domestic violence orders and the Tribunal's consideration of those offences and the weight attached to them.

Tribunal decision 35 The Tribunal conducted its review of the non-revocation decision taking into account the considerations contained in Direction 90 and not Direction 79. After setting out the background (RFD at [1]-[10]) and the issues, character test and content of Direction 90 (RFD at [11]-[45]), the Tribunal set out and summarised the evidence before it (RFD at [46]-[106]). 36 The Tribunal addressed primary consideration 1 (protection of the Australian community) and set out its findings of fact and conclusions relating to that consideration (RFD [107]-[128]). Within that section of the Tribunal's reasons it considered the nature and seriousness of the applicant's conduct and the likelihood of the applicant engaging in further criminal or other conduct as follows. 8.1.1 Nature and seriousness of the conduct 110. The Applicant has twice committed offences, specifically two contraventions of a DVO, which enliven paragraph 8.1.1(1)(a)(iii). The direction mandates that this type of conduct is viewed very seriously by the Australian Government and the Australian community, regardless of whether there is a conviction for an offence or a sentence imposed, and the Tribunal is so bound. 111. The Tribunal is required by paragraph 8.1.1 (1) c) to have regard the sentences imposed on the Applicant for his crimes. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy, and the Applicant has been sentenced to two concurrent terms of 12 months imprisonment as well as periods of six months and three months imprisonment and this consideration must weigh heavily against the Applicant. 112. The Tribunal is required by paragraph 8.1.1 (1) d) to have regard for the frequency of the Applicant's offending, and whether there is any trend of increasing seriousness. Having regard for the fact that the Applicant has been convicted of 59 offences over a period of approximately 18 months, it is impossible to view his offending as anything other than very frequent. Some of the Applicant's most recent offending comprised some 18 fraudulent transactions on a stolen bankcard between 23 and 24 August 2020 involving a total sum of $775.34 for which he was convicted and placed on 12 months' probation. Whilst the amount of money involved is not great, and the sentence imposed by the court can be seen as lenient, his conduct brings to mind the remarks of Acting Magistrate Walker regarding his earlier offending between the period 28 March 2019 and 25 January 2020, i.e. that during this period he was conducting himself "without any regard to the law at all". The commission of 18 offences in such a short space of time must be regarded as serious, and weigh against revocation. 113. The Tribunal is required by paragraph 8.1.1 (1) e) to have regard for the cumulative effect of the Applicant's offending. Much of the Applicant's offending viewed in isolation, can be characterised as relatively minor. However, his periods of criminal activity have been quite intense, and have required the commitment of significant public resources. In addition, many members of the community have had their property rights violated and suffered loss of personal items, financial loss, and inconvenience as was stated by Acting Magistrate Walker. This must weigh against revocation. 114. The Tribunal is required by paragraph 8.1.1 (1) f) to have regard for the fact that he failed to disclose his short criminal history in New Zealand to the Department on two occasions on his entry to Australia. Whilst the Tribunal accepts that the criminal conduct was of itself insignificant, the failure to disclose it is not. Accordingly, this must weigh against revocation. 115. [The Minister] also submitted that the Applicant's traffic history which disclosed that he has been fined four times per speeding between 2015 and 2017 had the potential to injure and possibly kill innocent road users, and was to be regarded as serious. The Tribunal accepts this submission, and this other conduct weighs against revocation. 116. As can be seen from the foregoing, in assessing the nature and seriousness of the Applicant's conduct to date, the relevant considerations under paragraph 8.1.1 (1) of the Direction in their totality weigh against revocation of the decision under review. 117. The Tribunal now turns to the considerations listed in paragraph 8.1.2(1) of the Direction. 8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct 118. In considering Paragraph 8.1.2 of the direction, the Tribunal is mindful of the points expressed in paragraph 8.1.2 (1) that the tolerance for any future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were repeated is so serious that any risk that it may be repeated is unacceptable. 8.1.2(2) a) The nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct 119. The Tribunal accepts that if the Applicant were to engage in similar conduct in the future, the nature of the harm to individuals or the Australian community could include physical, psychological and financial harm. The potential victims could include domestic partners of the Applicant, and members of the public. This could result in adverse consequences not just for the victims of the offending, but also to the health system and the justice system. Any further offences of fraud, stealing or other property and dishonesty offences could bring financial harm to citizens, residents, and businesses. 120. Accordingly, a consideration of paragraph 8.1.2(1) a) of the Direction weighs heavily against revocation. 8.1.2 (2) b) The likelihood of the non-citizen engaging in further criminal or other serious conduct 121. In reaching a view as to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal unfortunately has not had the benefit of any expert evidence regarding the risk of reoffending. Whilst the Applicant has given assurances as to his planned future conduct, it is clear that he has continued to offend notwithstanding the encouraging words offered by Acting Magistrate Walker. Whilst the Applicant has pointed to the unfortunate episode on his son's birthday as triggering an emotional downturn which led him into something of an offending spree, the Tribunal is also mindful that he committed several serious drug-related offences several weeks prior to that episode. The Tribunal does note that the Applicant has instigated attempts at rehabilitation, but at this point those attempts have not been successfully tested in the community. 122. Whilst the Applicant has asserted that he has suffered severe depression, unfortunately there is no medical evidence before the Tribunal in this regard. Neither is there evidence that he has received any treatment for it. The evidence nevertheless establishes that life has dealt the Applicant's children some very challenging cards. No doubt this has impacted heavily on the Applicant and his former partner and contributed to the breakdown of their relationship. 123. The Applicant has voiced a desire to remain in Australia and play as positive a role as possible in the lives of his two children. His consistent 20-year work history in New Zealand and Australia, and his seven years of unblemished residence in Australia raise real hopes that he would be able to achieve this. However, his further offending following his release from custody on 27 April 2020 raises doubts about whether he can. 124. No evidence before this Tribunal suggests that [MO], the Applicant's former partner will necessarily cooperate in providing him access to his children other than in compliance with an order of the court, and there is no evidence that suggests that she will readily consent to such an order. The Tribunal has concerns that if the Applicant stays in Australia, he might face an ongoing struggle to see his children on a regular basis, indeed if at all, and this would provide ongoing fertile ground for future relapses in his abstinence from drugs. Past events would suggest that it would simply be a matter of time before the emotional frustrations he would face would lead him to reoffend or engage in other serious conduct. 125. Consideration of paragraph 8.1.2 of the Direction must weigh against heavily revocation of the decision under review. 37 The Tribunal concluded that the nature of the applicant's offending was very serious and that there was a real likelihood that he will engage in further criminal or other serious conduct if returned to the Australian community. The Tribunal concluded that primary consideration 1 weighed heavily in favour on non-revocation: RFD at [126]-[128]. 38 The Tribunal then addressed primary consideration 2 (family violence) and set out its findings of fact and conclusions regarding that consideration as follows: 129. Material before the Tribunal shows that the Applicant has twice been convicted of contravention of domestic violence orders regarding his ex-partner [MO] and his children thus enlivening paragraph 8.2(2)(a) of the Direction and consideration of paragraph 8.2 of the Direction which provides that the Government has concerns regarding family violence proportionate to the seriousness of the family violence engaged in by the Applicant. 130. Evidence before the Tribunal shows foul, abusive, threatening and insulting language by the Applicant, conduct which is inherently serious in nature even though the Applicant has not caused any actual physical harm to any of the aggrieved persons listed in the DVO's [sic]. 131. An initial incident described above on 10 November 2017 resulted in the making of a protection order on 8 February 2018, and was followed by a variation order on 10 January 2020 which varied the order to include the new partner of [MO]. The Applicant was convicted and fined the sum of $400 for his initial offence committed on 11 May 2019, but his second offence merely recorded a conviction with no further punishment. This was the offence arising out of contact made over the Christmas to New Year period between 25 December 2019 and 6 January 2020. Having regard for the fact that the more recent penalty was less than the initial penalty, the Tribunal is unable to discern a trend of increasing seriousness. The Tribunal nevertheless considers the cumulative effect of the Applicant's offending in this regard to be serious. 132. In evidence before the Tribunal, the Applicant spoke extensively of the courses he had done in order to rehabilitate his ways, and appeared to express genuine remorse and acceptance of responsibility for his past conduct, and its impact on others. The Tribunal is satisfied that the Applicant has made genuine efforts to address factors which have contributed to his past conduct. 133. Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 2 weighs heavily in favour of non-revocation. 39 The Tribunal addressed primary consideration 3 (best interests of minor children in Australia) and set out its findings of fact and conclusion regarding that consideration (RFD [135]-[144]). The Tribunal then addressed primary consideration 4 (expectations of the Australian community) and said: Analysis - Allocation of Weight to Primary Consideration 4 145. The Direction makes clear that it is not the function of the Tribunal to independently assess community expectations in this case, but to proceed on the basis of the Government's views as articulated in the Direction. 146. The Tribunal gives weight to the very clear unequivocal language of the simple proposition found in paragraph 8.4 (1) of the Direction. It is in these words: "The Australian community expects non-citizens to obey Australian laws while in Australia." Paragraph 8.4 (2) a) particularise as this expectation in circumstances of conduct involving acts of family violence. The language could not be clearer. Neither could the Applicant's failure to meet this expectation. 147. Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable real risk that he will do so again given the opportunity. The Tribunal believes the Australian community would expect that the Applicant should not hold a visa. CONCLUSION: PRIMARY CONSIDERATION 4 148. The Tribunal finds that this Primary Consideration 4 weighs heavily in favour of non-revocation. 40 The Tribunal addressed other considerations (international non-refoulment, extent of impediments, impact on victims, links to the Australian community and impact on Australian business interests) and set out its findings and conclusions relating to those considerations (RFD [149]-[164]). The Tribunal then turned consider and weigh all of the considerations (RFD [165]-[168]) and concluded. (a) Primary Consideration 1 (protection of the Australian community) weighs heavily in favour of non-revocation. (b) Primary Consideration 2 (family violence) weighs heavily in favour of non-revocation. (c) Primary Consideration 3 (the best interests of the applicant's children) weighs extremely heavily in favour of revocation. (d) Primary Consideration 4 (expectation of the Australian community) weighs heavily in favour of non-revocation. (e) To the extent Other Considerations weigh in favour of revocation (impediments to resettlement if removed from Australia weighs in favour of revocation; the strength nature and duration of the applicant's ties to Australia weigh in favour of revocation; and all other considerations neutral) these considerations even combined with Primary Consideration 3 do not outweigh Primary Considerations 1, 2 and 4. 41 Last, the Tribunal concluded that it affirmed the decision under review (RFD at [169]).

Grounds of review 42 The grounds of review are particularised in the proposed further amended application as follows: 1. The Tribunal fell into jurisdictional error by applying a later ministerial direction pursuant to s 499(2A) of the Migration Act 1958 (Cth), Ministerial Direction No 90, in disregard of the applicant's accrued right to have the review conducted by reference to Ministerial Direction No 79, applied by the original decision-maker and operative at the material time. 2. Alternatively, the Tribunal committed jurisdictional error by engaging in a process of reasoning that was legally unreasonable, and a fact-finding process that was so unreasonable, illogical, meagre, insufficient, or formulaic, that the required task was not discharged, in connection with the following findings: (a) The Tribunal's finding at [115] that the applicant's record of four speeding tickets had the potential to injure and possibly kill innocent road users and was to be regarded as serious, made without a cogent evidentiary basis; (b) The Tribunal's finding at [125] that the risk of further offences weighed "heavily" against revocation, in circumstances where the Tribunal's preceding findings at [121]-[124] were to the effect that the risk of reoffending was not significant; (c) The Tribunal's finding at [133] that the family violence consideration weighed "heavily" against revocation, in circumstances where the Tribunal's preceding findings at [131]-[132] were to the effect that the family violence was not on the serious end of the spectrum; and (d) The Tribunal's finding at [148] that the expectations of the Australian community weighed heavily against revocation, made in a manner that was meagre or formulaic (or both), without regard to the material advanced by the applicant.

Parties' submissions 43 The central premise of the applicant's submissions in relation to ground 1 is that the Tribunal was required to assess the applicant's case as if it were doing so at the same point in time as the delegate who made the non-revocation decision. Accordingly, the applicant contended, the Tribunal should have considered his matter against Direction 79, which was in effect at the time of the delegate's decision, rather than against Direction 90. The applicant contended that applying Direction 79 is consistent with the principle that in carrying out its review task, the Tribunal was required to 'stand in the shoes of the original decision maker' and 'to do over again what the original decision-maker did': Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [134]. 44 The applicant submitted that this must be the case because of the construction of s 43 of the AAT Act, when read with s 500 of the Act. The applicant contended, first, that the opening words of s 43(1) 'for the purposes of reviewing a decision' sets the parameters for the Tribunal's review function. Second, that subsection goes on to state that 'the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision'. The applicant submitted that this defines the powers and discretions of the Tribunal by reference to those available to the original decision-maker. Third, the applicant contended that the use of the past tense made the decision situates the exercise of the power at a particular point in time. Fourth, s 43(6) of the AAT Act provides that the decision of the Tribunal that results from its exercise of the same powers and discretions of the original decision-maker is 'deemed to have had effect, on and from the day on which the decision under review has or had effect'. To that end, the applicant contended that the review function of the Tribunal only works coherently if the same legislative context governs both the original decision and the Tribunal's decision. The applicant contended that this construction is supported by the High Court authority in Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [14]. 45 The applicant also pointed to two cases in which the argument he raised was identified but not decided. Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 involved a decision not to revoke mandatory visa cancellation in circumstances where, between the application to the Tribunal and the Tribunal's decision, Direction 79 had replaced the precursory Ministerial Direction 65. At [8] of the reasons, the plurality noted in passing that no argument had been advanced in that case to the effect that the appellant had an accrued right to consideration of his application in accordance with Direction 65. The plurality in making that comment included a citation to the second case pointed to by the applicant, Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430. 46 The applicant relied on Esber in support of the proposition the majority expressed in that case (at 440) to the effect that once an applicant has lodged an application to the Tribunal to review a delegate's decision, the applicant has a right to have the decision of the delegate reconsidered and determined by the Tribunal, which is a substantive right. The applicant contended that the character of the substantive right to review enshrined in s 500 of the Act and ss 25 and 43 of the AAT Act, incorporates the content of any direction made under s 499 that applied at the time of the original decision. 47 Accordingly, the applicant's position is not that he had an accrued right to have his matter determined in accordance with Direction 79 which survived the repeal of that direction, but rather that the obligation to apply Direction 79 forms an inherent part of the review of the original decision to which the applicant is entitled by his application to the Tribunal. That is, the Tribunal must conduct that review in the same decision-making framework as that of the original decision-maker. 48 The applicant further submitted that the decision in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 248 FCR 296 is not a controlling authority for the point raised by ground 1 of the amended originating application as that case was not dealing with the issue that is raised in ground 1 of the amended draft originating application. In Uelese, the applicant contended that Direction 65 was not a mandatory consideration because as a legislative instrument, it was required to be registered, but had not been registered, under the Legislation Act 2003 (Cth). In that case, Direction 65 was in force at the time of the delegate's decision and at the time of the Tribunal's review of that decision. In that context, when concluding that Direction 65 was a policy document and not a legislative instrument, Robertson J reasoned: 46 ... [I]t is unlikely that an instrument made under a statutory power setting out a Minister's policy or a Minister's statement of government policy has a legislative character. Does this change where the statute, here s 499(2A) of the Migration Act, requires decision-makers to comply with that policy? The Minister is not altering the law but, at most, giving (lawful) directions as to the exercise of the discretion in s 501. If a direction did purport to alter the law as stated in s 501, for example either by narrowing the discretion or by directing decision-makers to take into account irrelevant considerations, then there would be a serious question as to whether that direction had been validly made under s 499. … 50 … Direction no. 65 does not determine rules of general application but gives directions to the Tribunal as to the policy it must apply in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act in exercising the power conferred by s 501 of the Migration Act. The Direction does not derogate from the Tribunal's duty to reach the preferable decision in the particular case before it. Indeed, the Direction has that end as its purpose. 51 There does not appear to be direct Parliamentary control of the decision to issue the Direction: see Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [27] where Mortimer J said that although, by s 499(3), the Minister must lay a direction before each house of Parliament, there was no provision for disallowance. Tabling may thus be seen as a form of accountability and transparency, rather than an indication of the legal character of the direction, just as, in respect of earlier executive policies about deportation or visa cancellation, the responsible Minister announced the policy in Parliament: see, eg, Re Becker and Minister for Immigration and Ethnic Affairs (1977) 32 FLR 469 at 164 per Brennan J. 52 … The Direction consists of broad policy considerations and some detail as to how those considerations are to be applied. The Direction may be varied by the Minister at any time by virtue of s 33 of the Acts Interpretation Act 1901 (Cth). Similarly, there is power of executive variation or control. No provision exists for merits review of the Direction. The Direction is required to be given effect to by the Tribunal but it does not have a binding effect on persons who are not decision-makers as referred to in s 499 of the Migration Act. 53 It should be emphasised again that no one consideration is decisive of the issue: RG Capital Radio Ltd at [42] and [78]. 54 To summarise, in my opinion the Direction is not a legislative instrument within the meaning of the Legislation Act primarily because the Minister is giving directions as to the exercise of a broad discretion and, properly construed, the Direction does not alter the scope or content of the power in s 501. The Direction, as a statement of policy, promotes values of consistency and rationality in decision-making, and the principle that administrative decision-makers should treat like cases alike: see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 327 ALR 8 at [54]. … 58 ... In my view, the Tribunal is acting independently and exercising its powers under the Administrative Appeals Tribunal Act albeit it is also, by s 43 of that Act, re-exercising the powers of the delegate: see Williams at [72]. Section 43(6) of that Act, which provides that a decision of a person as varied by the Tribunal or as made by the Tribunal in substitution for the primary decision shall be deemed to be a decision of that person, does not alter that conclusion. 49 The Minister submits that the Full Court decision in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 provides a complete answer to ground 1. The context of that case was that Direction 65 had replaced an earlier Ministerial Direction 55 (both precursors to Directions 79 and 90) between the delegate and Tribunal decisions. Mr Jagroop contended that he had an accrued a right to de novo review of the exercise of the s 501 discretion in accordance with Direction 55. The Full Court considered whether s 7(2)(c) of the Acts Interpretation Act 1901 (Cth) applied to the repeal of Direction 55. The Full Court found that the source of the right to have the s 501 discretion exercised by the Tribunal arose under ss 25 and 43 of the AAT Act and s 500 of the Act, such that no right had accrued under Direction 55. The Full Court also considered that a right of the kind asserted by Mr Jagroop was contrary to the terms of s 499(2A), as it requires a decision-maker to comply with any direction in effect at the time of its decision. The Full Court also found that in any event, the content of Direction 65 did not determine how the s 501 discretion was to be exercised. 50 The Minister contended that Esber does not assist the applicant, because the central question in that matter was the statutory right to a lump sum payment, just as the right in this matter is the statutory right to a de novo decision by the Tribunal as to whether to revoke visa cancellation. Esber does not go to the methodology or considerations employed by a decision-maker in arriving at their decision. The Minister submitted that Frugtniet does not assist the applicant, because that matter did not involve an amendment giving rise to temporal considerations, but rather a statute which required a Tribunal to exercise a power that was not available to the original decision-maker. The Minister contended that the applicant has not been able to explain how it is that the cases relied on provide authority for the proposition that ss 25 and 43 of the AAT Act overcome the mandatory terms of s 499(2A) of the Act. The Minister submitted that the statutory task of the Tribunal, and the right that the applicant had, was for the Tribunal to consider the decision afresh, as distinct from assessing whether the delegate's decision was correct. 51 The Minister further contended that although Directions 79 and 90 provide a guideline or framework that a decision-maker must consider, their nature is inclusive and prescriptive, rather than exclusive and proscriptive. The Minister submitted that while the Direction mandates that a decision-maker take certain matters into consideration, it does not prevent a decision-maker from taking account of any other matters it considers relevant. Nor does the Direction compel a particular outcome, or direct how the considerations are to be applied or weighed in the decision-maker's assessment of whether there is 'another reason' to revoke the visa cancellation. The Minister submitted that while the Tribunal was bound to exercise the same power and apply the same test, it was not bound to take into account the same issues as the original decision-maker. The Minister contended that if there was nothing preventing the Tribunal from considering other matters, relevantly here the content of Direction 90, then it cannot have been a jurisdictional error for the Tribunal to have done so.

Consideration 52 In the resolution of 'the question of whether the Tribunal has exceeded or mistaken its jurisdiction and powers a court must give close attention to the enabling legislation. … Here, the issue is how to define the jurisdiction and powers of the Tribunal in conducting a review of a decision of the [delegate], having regard both to the general provisions of the AAT Act, affording the power of review, and to the more specific provision of the Migration Act, defining the characteristics of the decision that is subject to review. Only when all the relevant feature of the two inter-related statutes are understood can a correct decision be arrived at as to the ambit of the review in question and the manner in which it should be conducted': Shi at [25] (per Kirby J); see, also, [92]-[93] (per Hayne and Heydon JJ), [132]-[133] (per Kiefel J, Crennan J agreeing). 53 Section 25(1) of the AAT Act provides that an enactment may provide that applications may be made to the Tribunal for review of 'decisions made in the exercise of powers' conferred by that enactment. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal 'for review of … decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa'. 54 Sections 43(1) and 43(6) of the AAT Act provide: (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. … (6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. 55 The nature of the Tribunal's review under ss 25 and 43 of the AAT Act have been considered in many authorities of long-standing and affirmed in the High Court. The question for determination by the Tribunal on review of an administrative decision under s 25 of the AAT Act is whether the original decision is the correct or preferable decision. That question is required to be determined on the material before the Tribunal, not on the material as it was before the original decision-maker. However, the Tribunal is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision: Frugtniet at [14]. 'In considering what is the right decision the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision.': Shi at [142] (per Kiefel J). 56 In Fruigtniet at [51] and [53] (citing Shi at [40], [45], [100], [134]) Bell, Gageler, Gordon and Edelman JJ summarised the jurisdiction conferred on the Tribunal in the following way (footnotes omitted): 51 … except where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT. … 53 The AAT and the primary decision-maker exist within an administrative continuum. The AAT has no jurisdiction to make a decision on the material before it taking into account a consideration which could not have been taken into account by the primary decision-maker in making the decision under review and which could not be taken into account by the primary decision-maker were the AAT to remit the matter to the primary decision-maker for reconsideration. 57 Although ground 1, in its terms, is predicated on an asserted 'accrued right' to have the review conducted by reference to Direction 79, as the ground was developed in the applicant's submissions the reference to 'accrued right' is something of a distraction. The substance of the ground is that the applicant asserts that his right of review required the Tribunal to address the same question as the delegate subject to the same constraints and taking into account the same considerations that the delegate was required to take into account at the time of the delegate's decision. The applicant contends that the delegate was constrained to make a decision under s 501CA(4) by reference to Direction 79 at that time and, therefore, the Tribunal was also so constrained. Therefore, the issues raised in ground 1 were not directly raised or answered in Jagroop. Nor were they raised or answered by Robertson J in Uelese, which Colvin J considered to be dispositive of one of the grounds considered he considered in Nathanson v Minister for Home Affairs [2019] FCA 1709. I also do not consider the passing comment of the majority in Nathanson of any real assistance in determining the issues that arise for determination in this case. 58 There are two implicit assumptions upon which ground 1 depends for its success. First, that the question for the delegate had a temporal element in that the decision required examination of a state of affairs that existed (another reason for revocation) at the time of the delegate's decision or, perhaps, at the time of the applicant's representations. But, in any case, at a time before the Tribunal's decision on review. Second, that Direction 79 formed part of the legal framework by which the delegate was constrained to make a decision at that time.

Temporal element 59 In Shi (at [45]), Kirby J citing Davies J in Jebb v Repatriation Commission (1988) 8 AAR 285 at 289-290 observed that the 'general approach of the [T]ribunal has been to regard the administrative decision-making process as a continuum so that, within the limits of a reconsideration of the decision under review, the [T]ribunal considers the applicant's entitlement from the date of application, or other proper commencing date, to the date of the [T]ribunal's decision.' 'There is thus a general approach deriving in particular from the statutory function of substituting one administrative decision for another.': at [46]. 60 In the same case, Kiefel J considered the approach to be taken to determining what material is relevant to the Tribunal's review of the original decision-maker's decision and said (footnotes omitted). 143 Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time. 144 In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account. A decision had been made to cancel Mrs Freeman's widow's pension. The definition of "widow", in the Act providing for the pension, did not include a widow who was living with a man, as his de facto wife. That circumstance applied to Mrs Freeman at the time of the decision. That was sufficient to disentitle her from receipt of a pension. The statutory scheme was such that a pension, once cancelled on this ground, could only be reinstated on a further claim being made. Subsequent to the cancellation decision Mrs Freeman's circumstances changed, such that she again qualified for the pension. His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow's pension at the date of the Tribunal's decision. 145 The situation in Freeman was distinguished by Davies J from cases where the matter to be determined is a person's entitlement to a pension. Where that was the decision to be reviewed the Tribunal might not be limited to facts existing at a particular time, since the entitlement might be a continuing one. His Honour did not suggest, by this comparison, that the ambit of the decision to be reviewed was to be determined by a general description of what the decision concerned - a grant or a cancellation of an entitlement. In each case what is entailed in a decision is to be ascertained by reference to the statute providing for it. 146 The question which here arose for the Authority under s 303(1), which it answered, was whether it should exercise its powers, under paras (a) to (c) of the sub-section, because the grounds in paras (h) and (f) were established, in particular because the appellant had breached the Code of Conduct. That part of the decision which comprises the finding, that the ground in para (h) had been made out, was referable to conduct which had occurred to a point in time. That is the nature of the finding required by the provision. It follows that the Tribunal was restricted to a consideration of events to that point and not those occurring later, in determining for itself whether there had been non-compliance with the Code. The appellant accepted as much in his submissions. 147 There is another restriction which operates with respect to the evidence the Tribunal may consider as to this ground. The effect of the restriction appears to have been assumed in argument. The Tribunal does not acquire all the powers of the Authority, but only those necessary to review the decision made by it (168). The Authority's decision concerned particular conduct of the appellant, which it had investigated. The Tribunal does not have all the Authority's disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act. The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct. (Emphasis added.) 61 Here, there are a number of features of the legislative framework that point towards the question for the delegate's decision having a temporal component that ties the delegate's state of satisfaction to the existence of a state affairs: the character of the former visa-holder (s 501CA(4)(b)(i)) or another reason (s 501CA(4)(b)(ii)) at a particular point in time (when the power under s 501CA(4) is, or is not, exercised). 62 First, like the legislation under consideration by Davies J in Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342 to which Kiefel J made reference in the passages from Shi cited above, a decision under s 501CA(4) does not involve a decision to refuse the grant of some benefit to which the former visa-holder would otherwise be entitled. Section 501(3A) of the Act results in the mandatory cancellation of a benefit (visa). A former visa-holder has no entitlement to the restoration of the visa. 63 After cancellation of a visa under s 501(3A) the Minister is to give notice of that decision and invite the former visa holder to make representations. Those representations must be made within 28 days: s 501CA(3); Regulations s 2.52(2)(b). If made, the Minister (or delegate) must have regard to any representations made in making a decision under s 501CA(4): Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [71]. A former visa-holder has no right (continuing or otherwise) to have the revocation of the cancellation of the visa considered unless representations are made to the Minister. 64 Second, s 501CA(4)(b) calls for the Minister (or delegate) to form a state of satisfaction. That state of satisfaction concerns the existence or non-existence of a state of affairs at the time that the power under s 501CA(4)(b) is, or is not, exercised. The discretion to revoke a cancellation arises if the Minister (or delegate) is satisfied that the former visa-holder passes the character test as defined in s 501(6): s 501CA(4)(b)(i). The description of character test in s 501(6) relates to conduct that has taken place, implicitly, up to the point in time that the question as to whether a person passes that test is asked. The discretion also arises if the Minister (or delegate) is satisfied that there is another reason why the decision to cancel the visa should be revoked: s 501CA(4)(b)(ii). That limb of s 501CA(4)(b) strongly suggests that the state of affairs 'another reason' must exist at the point in time that the Minister (or delegate) considers that question or at the time the former visa holder makes representations to the Minister. 65 If the cancellation decision is revoked that decision is taken not to have been made: s 501CA(5). If a decision is made not to revoke cancellation of a visa under s 501CA(4), the Minister (or delegate) must give the former visa-holder notice of that decision. Therefore, the nature of the decision of the Minister (or delegate) under s 501CA(4) is a decision to exercise or not the power to revoke the cancellation of a visa based on the formation of a state of satisfaction about a state of affairs existing or not existing at the time of that decision or at the time of the representations. 66 Third, the Tribunal must make a decision in accordance with one of the outcomes mandated in s 43(1) of the Act. A decision of the Tribunal affirming the decision under review does not involve any exercise of any function or power of the Tribunal under the Act. The original decision of the delegate under s 501CA(4) continues to operate unaffected. It remains the delegate's decision and the delegate's exercise of the delegated power of the Minister. Therefore, if the Tribunal comes to the view that the delegate's decision not to revoke the cancellation of a visa is the correct or preferable decision, then no further matter remains for the Tribunal to consider: e.g., Freeman at 345. The delegate's decision remains operative and has effect as at the date of the delegate's decision. 67 Fourth, a decision of the Tribunal varying or substituting a decision of a delegate is deemed to be a decision of the delegate. Therefore, a decision as varied or substituted by the Tribunal remains a decision of the delegate exercising delegated power of the Minister under s 501CA(4) of the Act. Similarly, if the Tribunal remits the matter the decision made on reconsideration will, of course, be and remain a decision of the delegate exercising delegated power of the Minister under s 501CA(4) of the Act. 68 Further, subject to an order of the Tribunal otherwise, a decision varied or substituted by the Tribunal is deemed to have had effect from the day on which the decision under review has or had effect. Therefore, except in circumstances where a decision is set-aside and remitted for reconsideration, the default rule is that a decision of the Tribunal has effect as a decision of the delegate at the time the decision of the delegate was made. 69 Fifth, the reference in s 43(1) of the AAT Act to the Tribunal exercising 'all the powers and discretion that are conferred by any relevant enactment on the person who made the decision' is subject to two important qualifications. That exercise is 'for the purpose of reviewing a decision'. Also, the powers of the Tribunal are not at large and are confined to those relevant for a review of the decision: Frugniet at [14]; Shi at [147]. Section 43(1) is facilitative and permits the Tribunal, in the exercise of the power to vary or substitute a decision, to exercise the applicable powers of the decision-maker relevant to the decision under review: Shi at [33]-[38] (per Kirby J citing Davies J in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal [No 2] (1981) 3 ALD 88 at 91) [100] (per Hayne and Heydon JJ, citing Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175-176), [133]-[142] (per Kiefel J, Crennan J agreeing). Further, if the Tribunal makes a varied or substituted decision it is deemed to be a decision of the original decision-maker: s 43(6). Therefore, it takes effect as a decision of the original decision-maker exercising that decision-maker's power and with effect from the time the decision of the delegate was made. 70 The question for the delegate of the Minister was whether, at the time the decision took effect: (a) the applicant had made representations in accordance with the Minister's invitation under s 501CA(3); and (b) the delegate was satisfied the applicant passed the character test at that time; or the delegate was satisfied there was another reason, at that time, why the cancellation of the applicant's visa should be revoked: see, e.g., Shi at [143]-[147]; Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services [1992] FCA 911; (1992) 39 FCR 225 at 234; Freeman at 344-345. Therefore, the function of the Tribunal was to review the delegate's decision of 23 February 2021 and to determine whether the decision not to revoke the cancellation of his visa at that time was the correct or preferable decision to have made. Of course, in coming to its decision the Tribunal was entitled to take into account all the material before it that was relevant to that question. But, the question was whether having regard to that material, the decision not to revoke on 23 February 2021 was the correct or preferable decision, not whether there was 'another reason' as at the date of the Tribunal's decision.

Applicable Direction 71 Section 496(1) confers power on the Minister to delegate 'to a person any of the Minister's powers under this Act'. Section 499 of the Act confers power on the Minister to 'give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers'. A person or body must comply with such a direction: s 499(2A). 72 There is no doubt that the delegate was bound to have regard to Direction 79 at the time of the delegate's decision. A failure to comply with the direction's express requirements as to the considerations to be brought to account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would constitute jurisdictional error on the part of the delegate: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (and the authorities there cited); Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [61] - [68]. 73 The requirements of Direction 79 fall within the description of mandatory relevant considerations of the kind referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 - 40. Therefore, it was necessary for the delegate to take into account those mandatory relevant considerations to form the state of satisfaction (or not) for a legally effective decision under s 501CA(4) of the Act. Likewise, if a delegate had made a decision under s 501CA(4) at the time the Tribunal made its review decision, that delegate would have been bound to have regard to Direction 90 and the express requirements of that direction would have been mandatory relevant considerations for that decision. 74 Direction 90, in its terms, takes effect from 15 April 2021. Therefore, there is a conceptual difficulty for the Tribunal to affirm, vary or substitute a decision of the delegate made or deemed to have been made on 23 February 2021 and with effect from that date by reference to a Ministerial direction that did not exist and that the delegate was not bound to take into account at that time. However, that conceptual difficulty does not arise if the Tribunal decides to set aside the delegate's decision and remit it to the delegate for reconsideration because on a reconsideration the delegate would be required to re-exercise the delegate's function or power under s 501CA(4) and form the state of satisfaction (or not) at that time. In so doing, the delegate would be constrained by Direction 90. Therefore, in that sense, applying Direction 90 would not involve taking into account a consideration that the delegate could not take into account if it were remitted to the delegate for reconsideration: Frugniet at [53]. Thus, the conceptual difficulty associated with affirmation or variation is not congruent with Direction 90 having no application at all to review of the delegate's decision. 75 Direction 90, in its terms, refers to the considerations a 'decision-maker' must take into account when making a decision under, amongst other provisions, s 501CA(4) of the Act. The expression 'decision-maker' is defined to mean 'a delegate of the Minister, or a body (such as Administrative Appeals Tribunal), making a decision under section 501 or 501CA of the Act'. Therefore, Direction 90 purports to apply directly to a review of the Tribunal of a decision made in the exercise (or not) of power under s 501CA(4) of the Act. Further, Direction 90 purports to apply at the time the Tribunal makes its decision on review. 76 In Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112, Mortimer J (as her Honour then was) considered the extent to which the Tribunal was bound by Direction 55 in the review of a decision of a delegate made in relation to the exercise of the discretion conferred by s 501 of the Act. Her Honour considered that the power of the Minister to give directions under s 499 extended to the performance of functions under the Act and the Tribunal's review of a delegate's decision by operation of s 500 was the performance of a function under the Act: Williams at [72]. Therefore, Direction 55 applied directly to the performance of the Tribunal's review function under s 500 of the Act read with ss 25 and 43 of the AAT Act. Here, the applicant has made no challenge to validity of Direction 90 on the ground that it had no direct application to a decision of the Tribunal on review of a decision of a delegate concerning the exercise of power under s 501CA(4) or to the correctness of Williams. 77 In Jagroop (at [61]) Kenny and Mortimer JJ (Dowsett J agreeing), rejected the contention that the applicant in that case had an 'accrued right' under Direction 55 for three reasons. First, because the source of the applicant's right to have the discretion the delegate exercised under s 501 reviewed arose under ss 25 and 43 of the AAT Act read with s 500 of the Act. Second, an 'accrued right' was 'contrary to the terms of s 499(2A) which require that a person or body to whom the direction is given complies, at the time it comes to make the relevant decision, with Direction 65.' Although the applicant sought to distinguish Jagroop on the basis that it dealt with an accrued right under Direction 55, the reasoning at [61] of the decision is consistent with Williams and, in substance, assumes the correctness of basis of that decision. Third, because neither the content of Direction 55 nor the content of Direction 65 determined how the discretion (under s 501 in that case) will be exercised in any given case. 78 In Williams (at [22]-[44]) Mortimer J also considered the legal character of a direction given under s 499. Her Honour highlighted the existence of the difference between policy considerations, often set at ministerial level, and statutory instruments. Statutory instruments form part of the law and may be the source of executive functions or powers. Ministerial policies are not part of the law, but provide guidance regarding the exercise of executive functions or powers. Departure from ministerial policy may result in jurisdictional error where it results in a failure to exercise functions or powers according to law or in exceeding the lawful limits of functions or powers. 79 Her Honour observed (at [26]) that the 'legal difference between an executive policy promulgated ministerial level and an executive policy promulgated at ministerial level which then becomes a direction under a provision such as s 499, in particular given the terms of s 499(2A), has not been fully explored in the authorities.' However, in Uelese Robertson J concluded that Direction 65 was not a legislative instrument within the meaning of the Legislative Instruments Act 2003 (Cth) primarily because the Minister is giving directions as to the exercise of a discretion and, properly construed, Direction 65 did not alter the scope or content of the power. 80 In Williams (at [68]-[69]), when considering the nature of the Tribunal's function under ss 25 and 43 of the AAT Act read with s 500 of the Act, Mortimer J drew attention to the distinction between administrative decision-making which may call for the application of executive policy and judicial decision-making which does not and the advantages of consistency in administrative decision-making. Her Honour then cited the following passage from the decision of Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (at 643-645) in which his Honour explained why in areas such as deportation the exercise of power in accordance with politically formulated policies is important: Administrative policy of the kind evoked by ss 12 and 13 of the Migration Act has a wide significance, affecting, as I have said, the character of Australian society. Such a policy is not conveniently formulated by this Tribunal. A policy which the Minister may formulate and adopt to guide himself in exercising the power conferred by ss 12 and 13 is subject to parliamentary scrutiny, and ultimately to parliamentary control. Under the Westminster system of government, a Minister is politically responsible to the parliament for the policy adopted to guide the exercise of his discretionary power, and he should be left to formulate that policy in whatever manner he thinks appropriate from time to time. Administrative policies are necessarily amenable to revocation or alteration on political grounds, and they are best formed and amended in a political context. Where a discretionary power guided by an administrative policy is exposed to review by this Tribunal, however, the powers with which this Tribunal is vested by s 43 of the Administrative Appeals Tribunal Act 1975 are wide enough to permit the sterilization or amendment of policy in its application to the cases which come here. Although the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case, there are substantial reasons which favour only cautious and sparing departures from Ministerial policy, particularly if parliament has in fact scrutinized and approved that policy. If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from ministerial policy thus denies to parliament its ability to supervise the content of the policy guiding the discretion which parliament created. On some occasions, reasons may be shown to warrant departure from ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete. But in general, it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own. Although the practice of giving reasons for decisions inevitably spins out threads of policy from the facts of the cases, the policy developed in this way originates in the need to ensure that justice is done in individual cases, and it is a different development from a ministerial declaration of broad policy relating to the generality of cases. The Tribunal is no doubt able to refine a broad policy, but the laying down of a broad policy on deportation is essentially a political function, to be performed by the Minister who is responsible to the parliament for the policy he adopts. The very independence of the Tribunal demands that it be apolitical; and the creation of its deportation jurisdiction is intended to improve the adjudicative rather than the policy aspects of deportation decisions. The Tribunal is not linked into the chain of responsibility from Minister to government to parliament, its membership is not appropriate for the formulation of broad policy and it is unsupported by a bureaucracy fitted to advise upon broad policy. It should therefore be reluctant to lay down broad policy, although decisions in particular cases will impinge on or refine broad policy emanating from a Minister. Different considerations might apply if a reviewable discretionary power were not subject to ministerial supervision (see, in connection with ministerial supervision, Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1978) 52 ALJR 254). If consistency in decision-making is sought, as it ought to be, the standards and values which a Minister expresses in a statement of lawful policy can be a constant reference point for each of the presidential members of the Tribunal in exercising the discretion in particular cases. Ministerial policy can be an aid to consistency among Tribunal decisions, and to consistency between the decisions of the Tribunal and those of the Minister. Decisions made under a statutory power and reviewed by the Tribunal are but a proportion of the decisions made under that power, and it would be a regrettable anomaly if the decisions which were not reviewed revealed different standards and values from those made on review. 81 In Jagroop, when dealing with the third reason for rejecting the 'accrued right' contention (the content of the directions did not determine how the discretion would be exercised, Kenny and Mortimer JJ (Dowsett J agreeing) said: 73 In the current proceeding, the applicant had, if the Tribunal was so satisfied, an entitlement to have the residual discretion in s 501(2) exercised in his favour. However, he had that right under both Directions. It was not Direction No 55 which gave him that right: that right arose by reason of the combination of ss 501 and 500 of the Migration Act and ss 25 and 43 of the Administrative Appeals Tribunal Act. Nothing changed in that respect for the applicant with the revocation of Direction No 55. It was open to him to secure the same outcome from the review, regardless of the fact that Direction No 65 had replaced Direction No 55. … 78 In the present case, the discretionary power in s 501 has remained the same. The contents of Direction No 65, like the contents of Direction No 55, must inform the matters the Tribunal examines. … 79 Implicit in the way the applicant articulated the "right" was the proposition that Direction No 55 was in its content more favourable to the applicant than Direction No 65, with the consequence that the revocation of Direction No 55 and its replacement by Direction No 65 had an adverse effect on his interests. As already stated, however, we do not accept the submission that the revocation of Direction No 55, and its replacement with Direction No 65 caused any diminution in the content of the applicant's rights of review in the Tribunal. There being no amendment to s 500 or s 501 of the Migration Act, those rights were preserved and protected by the Administrative Appeals Tribunal Act itself, making provision for the Tribunal's review function. Despite the transformation of cl 9.2 (dealing with "Strength, duration and nature of the person's ties to Australia") from a primary consideration in Direction No 55 to become cl 10.2 and merely an "other consideration" in Direction No 65, with the concomitant loss of the benefit of cl 8(4) concerning the "generally" increased weight to be given to primary considerations, in our opinion that change did not necessarily make Direction No 65 "less beneficial" in a relevant way. Although Direction No 65 (like Direction No 55) is prescriptive, and detailed in its prescriptions, the current Direction, like its predecessor, is intended to be applied to each set of individual facts and circumstances presented to the decision-maker. The ultimate decision must therefore reflect the claims of, and evidence and information about, an individual. No matter where the factor "Strength, duration and nature of the person's ties to Australia" is located in the Direction, the evidence about a particular individual (and the claims made) may mean that this consideration is afforded the most weight of any factor. All these are evaluative assessments for the decision-maker, which the Direction cannot determine. 82 In DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 529, Bromberg and Mortimer JJ said: 35 In performing that task by way of the exercise of a personal power, the Assistant Minister is not bound by the terms of s 499 of the Migration Act to apply, or engage with, the terms of any ministerial direction given under that provision, such as Direction 65. However, even when the terms of a ministerial direction do compel consideration by a decision-maker of particular matters set out in that direction, the statutory task remains the same. Adhering to the structure of a ministerial direction must not distract from the primary statutory task, which is to consider (by way of active intellectual engagement) whether there is another reason to revoke the visa cancellation. In that task, the representations made by the person affected assume a primary and material role, irrespective of whether they engage directly with one of the matters in a ministerial direction. That is because the Minister has invited those representations, on the statutory question, and must therefore consider them. A reviewing court can generally expect to see such consideration reflected in the reasons given. That, as the Full Court observed in Omar, is part of the decision-maker confronting the reality of the exercise of public power. 83 Directions like Direction 79 and Direction 90 are administrative policies. The formulation of such policies is essentially political. The Minister is subject to parliamentary scrutiny and, ultimately to parliamentary control. Although an objective of administrative policy may be consistency of administrative decision-making, administrative policies are 'necessarily amendable to revocation or alteration on political grounds': Drake at 644 (per Brennan J). 84 It follows that Direction 79 was not part of the 'legal' framework by which the delegate was constrained at the time of the delegate's decision. It was an administrative policy of the executive that was a guide to administrative decision-making at that time, but it could not and did not mandate any particular outcome in its application. That is so even though the delegate was bound to apply Direction 79 as the administrative policy at the time of the delegate's decision. 85 While the question for the delegate had a temporal element, the review of the delegate's decision formed part of an administrative continuum that continued until the time of the Tribunal's decision. Part of that continuum included ministerial executive policy as promulgated from time to time. That policy, whether the subject of a direction given under s 499 or not, had no bearing on the operation of s 501CA(4) and s 500 of the Act. The effect of s 499(2A) of the Act was that the delegate was obliged to comply with Direction 79 when making a decision to exercise (or not) the power under s 501CA(4) because that was the executive policy in force and that applied to the exercise of that power under s 501CA(4) at the time of that decision. The effect of s 499(2A) of the Act was that independently the Tribunal was obliged to comply with Direction 90 when making a decision on review because that was the executive policy in force and that applied to the Tribunal's function under the Act at the time of the Tribunal's decision. Direction 79 and Direction 90 formed part of the administrative decision-making continuum that prevailed from the time of the applicant's representations until the Tribunal's decision upon review was made. 86 Although the delegate was constrained in the sense that the delegate was bound to comply with Direction 79 at the time of the delegate's decision and a failure to take into account a mandatory relevant consideration of Direction 79 would have deprived the delegate's decision of legal effect, it was not a legal constraint on the exercise (or not) of power under s 501CA(4). It was a statement of executive policy regarding the exercise (or not) of that power at that time, but it had no bearing on the rights of the applicant under s 501CA(4). Put another way, it contained no right to have the power of discretion under s 501CA(4) exercised in any particular way at the time of the delegate's decision. The Tribunal's review involved deciding if the delegate's decision not to revoke the cancellation of the applicant's visa was the correct or preferable decision by reference to executive policy at the time the Tribunal exercised its review function under the Act. That executive policy was relevant to the performance of that review function. 87 It follows that the application for judicial review on amended ground 1 must be dismissed.

Parties' submissions 88 The applicant relies on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 in support of the contention that the Tribunal's decision was legally unreasonable. In particular, the applicant submits that the Tribunal's reasoning with respect to: Primary Consideration 1 (protection of the Australian community); Primary Consideration 2 (family violence); Primary Consideration 4 (expectations of the Australian community) was legally unreasonable in that it lacked an evident and intelligible justification. 89 In relation to protection of the Australian community, the applicant contended that it was not rational for the Tribunal to find that the nature and seriousness of his conduct weighed against revocation, on the basis of four speeding fines which 'had the potential to injure and possibly kill innocent road users, and was to be regarded as serious' (RFD at [115]). The applicant further submitted that the Tribunal's conclusion (RFD at [125]) that the risk of his further offending 'must weigh heavily against revocation' disregarded its previous findings that there was an absence of expert evidence on recidivism, that he had taken steps towards rehabilitation and that his past offending had occurred in difficult personal circumstances (RFD at [121]). The applicant contended that the Tribunal's conclusion instead appears to be based on its conjecture in RFD at [124] as to whether he will be denied access to his children in future, and what that might portend as a possible trigger for reoffending. 90 In relation to family violence (RFD at [129]-[133]), the applicant contended that the Tribunal's findings that the applicant had one conviction resulting in a $400 fine and a second without further punishment, and its findings in relation to the applicant's remorse and rehabilitative efforts, did not provide an intelligible justification for its conclusion that the family violence consideration 'weighed heavily in favour of non-revocation'. 91 In relation to the expectations of the Australian community (RFD at [145]-[147]), the applicant contended that the Tribunal found that he failed to meet community expectations per se because of his past offending. The applicant submitted that the Tribunal failed to engage holistically with the circumstances in which his offending had occurred, his remorse and rehabilitation, his commitments in relation to future conduct, and the possibility of not seeing his children again. 92 The Minister submitted that proposed ground 2 is directed to the merits of the Tribunal decision and fails to demonstrate the necessary 'extremity' required to establish unreasonableness or irrationality. In relation to the risk arising from possible future offending, the Minister submitted that it was not illogical, irrational or legally unreasonable, in the sense that no decision maker could have reached that finding, to conclude that driving at excessive speed presents a risk to members of the Australian community. The Minister otherwise submitted that the Tribunal considered and understood the applicant's submissions in relation to rehabilitation and was entitled to find that the risk of circumstances that had precipitated past offending had not passed or reduced sufficiently to the Tribunal's satisfaction. 93 In relation to the family violence, the Minister contended that the applicant cavils with the weight attributed to this consideration, which invites impermissible merits review. The Minister contended that nonetheless, given what the Direction says about the seriousness of family violence, and having regard to the applicant's past conduct, this consideration could not weigh in the applicant's favour. 94 In relation to the expectations of the Australian community, the Minister submitted that the Full Court has found those expectations to be normative, and that it is not for a decision-makers to enquire or determine what the community would expect in a particular case: FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454. On that basis, this consideration did not require a prolonged and detailed analysis. The Minister submits that nonetheless, the weight to be given to the consideration was a matter for the Tribunal; and it was open to it, having regard to the factors in s 8.4 of Direction 90, to find that applicant's criminal convictions, failure of the character test, and acts of domestic violence weighed against him.

Applicable principles 95 In general, Parliament is taken to have intended that powers conferred on administrative decision-makers are to be exercised reasonably: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, per Gaudron J at [16]; Li, per French CJ at [29]; per Hayne, Kiefel and Bell JJ at [63]; per Gageler J at [88]. Like for other the established categories of jurisdictional error, review for legal unreasonableness is concerned with enforcement of the law governing the limits of the power in question, and not the manner in which that power was exercised. '[T]he Court's role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances in which reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of the power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification.': Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [92]. A failure to exercise power reasonably, subject to materiality, amounts to jurisdictional error. 96 Here, the ascertainment of the relevant jurisdictional error, if there be one, must fix upon the treatment of the requirement mandated by s 501CA(4)(b)(ii) of the Act that the Minister be 'satisfied' that there is another reason why the decision to cancel the visa should be revoked. In dealing with that issue there is a distinction between a power involving the exercise of a discretion by a decision-maker and a power that involves the formation of a state of satisfaction by the decision-maker as a pre-condition to the exercise of the power: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [37]-[39]. 97 The High Court has said that '[s]ection 501CA(4) of the Migration Act confers a wide discretionary power on a decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is "another reason" why that decision should be revoked': Plaintiff M1 at [22]. On the other hand, the Full Court of this Court has said that if the Minister is satisfied that the former visa holder passes the character test (s 501CA(4)(b)(i)) or there is another reason why the decision to cancel the visa should be revoked (s 501CA(4)(b)(ii)), then the Minister must not may revoke the decision to cancel the visa: Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [30]-[32] (per Collier J, Logan and Murphy JJ agreeing). 98 The distinction between a discretionary power and a power involving formation of a state of satisfaction is of relevance and importance to the particulars of the ground 2 the applicant advances. The applicant asserts that these aspects of the Tribunal's reasoning were not legally reasonable on grounds that might be called 'intra-mural' fact finding by the decision-maker in the course of the exercise of the jurisdiction to make a decision of the kind disfavoured by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356-357. However, as Gummow A-CJ and Kiefel J (as her Honour then was) observed in SZMDS (at [38]), '[t]he apprehension respecting "merits review" assume that there was jurisdiction to embark upon determination of the merits. But the same degree of caution as to the scope of review does not apply when the issue is whether the jurisdictional threshold has been crossed.' Further, (at [39]) '[c]onfusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in the discretionary decision making is kept in view.' 99 The concept of legal unreasonableness may be employed in difference contexts. First, it may express a conclusion after identification of jurisdictional error on one or more specific identified grounds. Second, in the case of discretionary power, it may be 'outcome-focused' and a conclusion that jurisdictional error is inferred from the manner in which the discretion was exercised: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [43]-[44]; Li at [27]-[28], [66], [72]. 100 Both Li and Singh involved the unreasonable refusals to exercise a procedural discretionary power to grant an adjournment. Unreasonableness in the exercise of procedural discretionary power may be more easily inferred and understood by a court upon review because it does not involve the exercise of a substantive discretionary power attended by political or governmental policy considerations. In general, courts are not well place to review the exercise of substantive discretionary powers involving political or policy decisions. It is only in 'rare' circumstances that a court would infer jurisdictional error for legal unreasonableness based on the 'outcome' of the exercise of the discretion: Li at [108]-[113] (per Gageler J); Stretton at [60], [71]-[76] (per Griffiths J), [1] (Allsop CJ agreeing, subject to elaboration) [90] (Wigney J agreeing, subject to comment). 101 Assuming that the exercise of the power under s 501CA(4) involves the exercise of a discretion, the difficulty that the applicant faces is that ground 2 does not, in terms, assert that legal unreasonableness is to be inferred from the 'outcome' (the decision not to revoke cancellation of the applicant's visa is manifestly outside the boundaries of a reasonable decision), but rather that specific aspects or conclusions of the Tribunal along the way to its ultimate decision were legally unreasonable. Nonetheless, accepting that statutory discretions confer an 'area of decisional freedom' a decision may be legally unreasonable if it is shown 'to be arbitrary or capricious or to abandon common sense': Li at [28], or if it 'lacks an evident and intelligible justification': Li at [76]. Such expressions are not to be regarded as rigid formulae, but rather, as assisting in the evaluative task of determining whether a decision may be properly characterised as sitting outside the boundaries of legal reasonableness: Stretton at [2]-[13] (per Allsop CJ). 102 As to the more specific errors in decision-making, in Li the plurality (Hayne, Kiefel and Bell JJ) said (footnotes omitted): 72 The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. 73 In Fares Rural Meat & Livestock Co Pty Ltd v Australian Meat and Live-Stock Corporation, reference was made to an analysis of three paradigm cases of unreasonableness which were thought to be consistent with a view of Lord Greene MR's "doctrine", as based on the law as to the misuse of fiduciary powers. The third paradigm involved the application of a proportionality analysis by reference to the scope of the power. 74 In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1) (170). With that in mind, consideration could be given to whether the Tribunal gave excessive weight - more than was reasonably necessary - to the fact that Ms Li had had an opportunity to present her case. So understood, an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached. However, the submissions in this case do not draw upon such an analysis. 75 In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. 76 As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. 103 Assuming that the power under s 501(4) requires the exercise of power upon the Minister forming the state of satisfaction described in s 501(4)(b)(ii), jurisdictional error may also be inferred from an unreasonable outcome: SZMDS at [121]-[123]. Illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding (decision-maker's reaching a specified state of mind). In that context, the Tribunal's conclusions about the state of satisfaction required by s 501CA(4)(b)(ii) 'and its findings on the way to that conclusion' may reveal illogicality or irrationality amounting to jurisdictional error: SZMDS at [124]-[132]. 'Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same conclusion on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision is one to which the decision maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.': SZMDS at [135]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(4)]. However, 'to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, 'extreme' illogicality must be demonstrated measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to difference conclusions': DAO16 at [30(5)] (and the authorities cited therein). 104 The parties have not addressed the question of whether the power under s 501CA(4) involves the exercise of a discretion or requires the exercise of power upon the Minister forming one of the states of satisfaction referred to in s 501CA(4)(b). The applicant rested his application on the proposition that the Tribunal fell into jurisdictional error by engaging in reasoning that lacked an evident and intelligible justification and by adopting a fact-finding process that was so unreasonable or illogical, or the consideration so meagre, insufficient or formulaic, that the required task (forming the state of satisfaction under s 501CA(4)) was not discharged in accordance with law. The Minister evidently accepted that, for the purposes of s 501CA(4), illogical or irrational fact-finding, including fact-finding along the way to the ultimate conclusion, may result in jurisdictional error. However, the Minister emphasised that 'extreme' irrationality or illogicality is necessary and not mere disagreement in the outcome. 105 Given the parties' submissions on the application, it is not necessary to consider if there is, and if so resolve, the possible difference in view between the High Court's statement of discretionary nature of the power under s 501CA(4) in Plaintiff M1 and the Full Court authority of Marzano to the effect that there is no discretion under s 501CA(4) once the Minister has formed one of the states of satisfaction referred to in s 501CA(4)(b). Nor is it necessary to consider if there is any potential difference in approach to the asserted errors depending upon whether the power is discretionary or based on satisfaction of the criterion in s 501CA(4)(b)(ii). 106 It follows that it is common ground that power in s 501CA(4) must be exercised reasonably and that fact-finding along the way may reveal jurisdictional error. As there are no rigid formulae for determining the boundaries of legal unreasonableness, and the various specific grounds of jurisdictional error tend to run into one another, it is convenient to consider what the applicant asserts the Tribunal has done and whether that reveals any recognised category of legal unreasonableness (by whatever label) or if legal unreasonableness may otherwise be inferred from the Tribunal's reasons, conclusion and decision.

Road traffic offences 107 The evidence before the Tribunal included a Queensland Police Service traffic record indicating that the applicant committed four offences between 29 April 2015 and 19 September 2017, two for exceeding the speed limit by at least 13 kilometres per hour, but not more than 20 kilometres per hour and two for exceeding the speed limit by less than 13 kilometres per hour. The Tribunal accepted a submission made on behalf of the Minister to the effect that these offences had the potential to injure and possibly kill innocent road users and were to be regarded as serious. In a general sense, driving in excess of the speed limit has the potential to injure or cause serious harm to other road users or pedestrians. That is, after all, the usual reason for imposing speed limits. Reasonable minds may differ as the characterisation of offences of that nature as 'serious' and it is open to disagree with that conclusion, but I do not accept the applicant's submission that the conclusion was not 'rationally available on the evidence'.

Risk of recidivism 108 In considering the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal noted that there was an absence of expert evidence regarding the risk of the applicant reoffending. The Tribunal noted that the applicant had instigated attempts at rehabilitation, but those attempts had not been successfully tested in the community. The Tribunal recorded that he had a 20-year consistent work history in New Zealand and Australia and seven years of unblemished residence in Australia before the period of his offending took place. The applicant submitted to the Tribunal that this offending spree was triggered by an emotional downturn due to separation from his children. However, the Tribunal had doubts that the applicant would not reoffend given that he did so following his release from custody in April 2020. Notwithstanding factors evidently pointing in both directions, the Tribunal concluded that '[c]onsideration of paragraph 8.1.2 of the Direction must weigh against heavily revocation of the decision under review.' 109 The foundation and justification for the Tribunal's conclusion about weight appears to have been based on the following reasoning of the Tribunal: 124 No evidence before this Tribunal suggests that M, the Applicant's former partner will necessarily cooperate in providing him access to his children other than in compliance with an order of the court, and there is no evidence that suggests that she will readily consent to such an order. The Tribunal has concerns that if the Applicant stays in Australia, he might face an ongoing struggle to see his children on a regular basis, indeed if at all, and this would provide ongoing fertile ground for future relapses in his abstinence from drugs. Past events would suggest that it would simply be a matter of time before the emotional frustrations he would face would lead him to reoffend or engage in other serious conduct. 110 The applicant contends that the Tribunal's reasoning involved speculation and a failure of active intellectual engagement in respect of the Tribunal's findings and with the materials the applicant had presented about the circumstances giving rise to his offending. 111 An evaluation of 'risk' or likelihood of further criminal or other serious conduct necessarily calls for a degree of speculation about the future conduct of the former visa holder. However, an assessment of future probability must be founded on evidence or materials from which an assessment of future conduct may be made. 112 In this case, the Tribunal's assessment 'that it would simply be a matter of time' before the applicant would reoffend or engage in other serious conduct was based on a conclusion that the applicant 'might face an ongoing struggle to see his children on a regular basis, indeed if at all, and this would provide ongoing fertile ground for future relapses in his abstinence from drugs'. The Tribunal's use of the word 'might' was, in turn, based on the absence of evidence that the applicant's former partner would cooperate in providing him access to his children other than in compliance with an order of the court and there was no evidence that she would readily consent to such an order. 113 While there was evidence that the applicant's former partner had not cooperated in providing the applicant with access to his children in the past, there was also no evidence that she would not cooperate in the future. There was no evidence about the potential or prospects of the applicant obtaining a court order to compel his former partner to provide him with such access. The extent to which the applicant could or would be able to see his children in the future was a matter of speculation. Therefore, to make a concrete finding or reach a concrete conclusion about the likelihood of the applicant obtaining regular access to his children in the future would involve speculation and arbitrariness. Nonetheless, it was open on the materials before the Tribunal to which it made reference in its reasons to conclude that there was a risk that the applicant would have ongoing difficulties with access to his children and that, in turn, presented an ongoing risk that the causes of his past drug use and offending would remain present if he were to remain in Australia. Further, if he returned to drug use, it was, in effect, inevitable that he would reoffend. That is the substance of the Tribunal's reasoning and conclusions in para [124] (read without an eye keenly attuned to error). Therefore, the Tribunal has not engaged in pure speculation or arbitrary reasoning. 114 While it is open to strongly disagree with the Tribunal's conclusion that the material before the Tribunal weighed heavily against revocation of the decision to cancel the appellant's visa, it is not a conclusion that lacks intelligible justification, logic, rationality or reason. Nor do the reasons reveal a lack of engagement and evaluation of the materials before the Tribunal.

Family violence 115 The Tribunal concluded that para 8.2(2)(a) of Direction 90 was engaged because the applicant had twice been convicted of contravention of family violence orders: RFD [129]. 116 Paragraph 8.2 of Direction 90 provides: (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below). (2) This consideration is relevant in circumstances where: a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness. (3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant: a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; b) the cumulative effect of repeated acts of family violence; c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: i. the extent to which the person accepts responsibility for their family violence related conduct; ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); iii. efforts to address factors which contributed to their conduct; and d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence. 117 Paragraph 4(1) of Direction 90 defines family violence for the purposes of the direction as follows: family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include: a) an assault; or b) a sexual assault or other sexually abusive behaviour; or c) stalking; or d) repeated derogatory taunts; or e) intentionally damaging or destroying property; or f) intentionally causing death or injury to an animal; or g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or i) preventing the family member from making or keeping connections with his or her family, friends or culture; or j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty. 118 It follows that to engage para 8.2 of Direction 90 it is necessary for the decision-maker to conclude that there has been violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. The facts recorded in the Tribunal's reasons indicate that the applicant's former partner (and mother of his children) left him following an incident on 10 November 2017. She subsequently commenced a relationship with the applicant's best friend of 20 years and is now married to him. When the applicant's former partner left him, she relocated, with their children, approximately one and half hours away (by car) from the place where the applicant then resided. 119 The applicant's former partner obtained a domestic violence order (DVO) on 8 February 2018 as a result of the incident on 10 November 2017. The applicant was convicted of breaching the DVO by sending his former partner text messages on 11 May 2019, telephoning her on 25 December 2019 and texting her on 6 January 2020. At the time of the conduct in breach of the DVO it is unclear on what ground, if any, the Tribunal member was or could have been satisfied that the applicant's former partner was 'a member of [the applicant's] family'. At that time she was neither his de jure nor de facto wife. No finding to that effect is made in the Tribunal's reasons. 120 Further, para 8.2(2) provides that primary consideration 2 is relevant in circumstances where a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence. A condition of the DVO was to the effect that '[the applicant] must be of good behaviour towards the aggrieved and not commit domestic violence towards the aggrieved'. That condition could be breached without the use of violence, threats or other behaviour that caused a family member to be fearful as it could merely involve conduct that is not 'good behaviour towards the aggrieved'. 121 The conviction for the breach of the DVO on 11 May 2019 involved sending a text message that could be described as including a threat. Although, the full context of the message may be required to draw that conclusion. In any case, the Tribunal's reasons do not include any findings of fact about the conduct as a 'threat' or 'other behaviour' that caused 'the family member to be fearful'. 122 The conviction for the breach of the DVO on 25 December 2019 and 6 January 2020 involved the applicant abusing his former partner in a telephone conversation with what might be described as a derogatory taunt and sending her a text message that used profane and abusive language and included what might be described as derogatory taunts. However, these communications do not contain any threats and it is not obvious that they would cause the applicant's former partner to be fearful. Again, the Tribunal's reasons do reveal any analysis of the communications or the manner in which they involved a 'threat' or 'other behaviour' that caused 'the family member to be fearful'. 123 Paragraph 8.2(1) of Direction 90 provides that the 'Government's concerns [in regard to non-citizens who have engaged in family violence remaining in Australia] are proportionate to the seriousness of the family violence engaged in by the non-citizen' with reference to para 8.2(3). 124 Although specific reference is made to para 8.2(3), para 8.2(1) calls for an evaluation of the seriousness of the family violence 'engaged in by the non-citizen'. The Government's concerns are proportionate to the seriousness of that conduct. Therefore, the weighing exercise described in para 8.2.(1) requires an evaluation of the seriousness of the family violence engaged in by the non-citizen having regard to the factors described in para 8.2(3). 125 The sentencing remarks of the Magistrate who sentenced the applicant on 27 April 2020 indicate that breach of the DVO, for which he was convicted on that date, had a maximum penalty of 3 years imprisonment. The applicant was fined $400 for the breach committed on 11 May 2019. No additional penalty was imposed for the breaches committed on 25 December 2019 and 6 January 2020. Self-evidently, the sentences given (or not given) to the applicant indicate that breaches of the DVO were on the lowest end for the seriousness of offences of that nature. To the extent these offences involved 'family violence', again, self-evidently the applicant's conduct was on the lowest end of the spectrum. 126 The Tribunal's reasons indicate that it was 'unable to discern a trend of increasing seriousness', but 'nevertheless [it considered] the cumulative effect of the Applicant's offending in this regard to be serious'. Otherwise, the Tribunal was satisfied that the applicant had made genuine efforts to address factors which have contributed to his past conduct. 127 The Tribunal's reasons lack an intelligible foundation for the conclusion that the applicant's conduct involved 'serious' family violence. There are no findings disclosed in the reasons with respect to the specific manner in which each of the breaches of the DVO involved 'family violence' or the manner in which the breaches could be described as 'serious' instances of 'family violence'. Without more, two examples of minor breaches of the DVO in a six month period over a year after the DVO was made cannot logically or rationally be described as 'serious' individually or cumulatively as offences let alone as offences involving 'serious' family violence. 128 The Tribunal concluded that '[h]aving considered the entirety of the evidence and each of the relevant factors contained in the Direction, … Primary Consideration 2 weighs heavily in favour of non-revocation.' Having regard to absence of a logical, rational or intelligible justification for the conclusion that the applicant's conduct involved 'serious' family violence, there is similarly an absence of logical, rational or intelligible justification for the conclusion that the family violence primary consideration weighed heavily in favour of non-revocation (or against revocation). 129 As to the question of the weight to be given to relevant considerations, Mason J (as his Honour then was) said in Peko-Wallsend (at 41-42): It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR [363] at 375; Reg v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 205; Elliott v Southwark London Borough Council [1976] 1 WLR 499 at 507; [1976] 2 All ER 781 at 788; Pickwell v Camden London Borough Council [1983] QB 962 at 990 . I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". … But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell (1950) 81 CLR 513 at 519; Gronow v Gronow (1950) 81 CLR 513 at 519; Mallet v Mallet (1984) 156 CLR 605 at 614 - 615, 622. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits. 130 Leaving to one side the absence of logical, rational and intelligible justification for the Tribunal's conclusions about the seriousness of the applicant's conduct, the Tribunal's conclusion, on the materials before it, that the family violence primary consideration weighed heavily in favour of non-revocation, reveals jurisdictional error in that the Tribunal has manifestly placed weight on that factor that is out of proportion to the weight that could be attached to that factor in the proper exercise of the decision-maker's power under s 501CA(4) of the Act. While weight is generally a matter for the decision-maker, this case is an example of a rare instance where the weight given to a relevant consideration reveals jurisdictional error.

Expectations of the Australian community 131 The last assertion is that the conclusion in para [148] that Primary Consideration 4 (expectations of the Australian community) weighs heavily in favour of non-revocation was based on the three short paragraphs ([145]-[147]) that preceded that conclusion. The applicant contended that the reasoning was so meagre, insufficient or formulaic that the Tribunal had failed to discharge its task of considering the factors referred to in s 8.4 of Direction 90 and engage with the applicant's representations holistically. 132 On the assumption that the Tribunal's reasons do not contain the absence of logical, rational and intelligible justification for the conclusions regarding family violence and the other primary considerations, brief though the reasoning in paras [145]-[148] may be, it must be read in the context of the reasons as a whole and without an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272; [1993] FCA 456; (1993) 43 FCR 280 at 287. The Tribunal's reasons, examination of the evidence and evaluation of the various factors relevant to its consideration of whether or not to revoke the cancellation of the applicant's visa have been set out earlier in these reasons. Read as a whole, the characterisation of the reasoning that resulted in the conclusion expressed at para [148] as meagre or insufficient is not fair. It is somewhat formulaic, as is the description of the weighing of the various considerations at paras [165]-[166], but it is not so deficient as to reveal an absence of consideration of the expectations of the Australian community mandated in Direction 90. 133 The nature of the applicant's offending is described in various parts of the reasoning. In para [146] the Tribunal refers to ss 8.4(1) and 8.4(2) of Direction 90 which sets out the expectations of the Australian community. There is a reference to an expectation that the Australian Government should refuse entry to non-citizens or cancel their visas, if they raise serious character concerns through conduct, including, amongst other things, acts of family violence. The Tribunal also referred to its earlier conclusion that there was an unacceptable risk of the applicant reoffending. I do not consider that these conclusions, in the context of the reasons as a whole, demonstrate a legally unreasonable conclusion or otherwise infer any legal error in the Tribunal's process of reasoning.

Conclusion 134 The applicant will have leave to amend his application for an extension of time to raise the proposed further amended grounds of review. The applicant will be granted an extension of time to apply for judicial review. The application for judicial review succeeds on one aspect of ground 2. There will be orders in the nature of writs of certiorari and mandamus to quash the Tribunal's decision and command it to determine the matter according to law. I will hear the parties on the question of costs. I certify that the preceding one-hundred and thirty four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.