Brown v Minister for Immigration and Citizenship - Visa Cancellation Review

Original Word Document (132.3 KB) Federal Court of Australia

Brown v Minister for Immigration and Citizenship [2026] FCA 323

| Appeal from: | Brown and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 280 (4 November 2024) |
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| File number(s): | NSD 1766 of 2024 |
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| Judgment of: | MOORE J |
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| Date of judgment: | 25 March 2026 |
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| Catchwords: | MIGRATION – applicant’s visa cancelled due to substantial criminal record – judicial review of decision of the Administrative Review Tribunal (Tribunal) not to revoke cancellation decision – failure by the Tribunal to apply two primary considerations in Direction 110 – failure to take into account the two separate considerations in Primary Consideration 3 – failure to address impact of non-revocation on immediate family members – error material where there was a realistic possibility that the decision could have been different if the impact on the applicant’s immediate family was considered – failure to make a clearly reasoned, positive finding as to whether revocation was in the best interests of a minor child pursuant to Primary Consideration 4 – application allowed |
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| Legislation: | Migration Act 1958 (Cth) ss 499, 500, 501 and 501CA

Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA |
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| Cases cited: | ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265; [2024] HCA 2

Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461; [2016] FCAFC 48

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 305 FCR 26; [2024] FCAFC 119

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50

RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365; [2022] FCAFC 201

Siale v Minister for Immigration and Citizenship [2025] FCA 608

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187; [2021] FCAFC 125

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 115 |
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| Date of hearing: | 9 October 2025 |
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| Counsel for the Applicant: | Mr D Rowe (pro bono) |
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| Counsel for the First Respondent: | Mr J Walker |
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| Solicitor for the First Respondent: | HWL Ebsworth Lawyers |
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| Solicitor for the Second Respondent: | The second respondent filed a submitting notice, save as to costs |
ORDERS

| | | NSD 1766 of 2024 |
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| BETWEEN: | EDEN ZIVARNA GRACE BROWN

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW AND TRIBUNAL

Second Respondent | |

| order made by: | MOORE J |
| DATE OF ORDER: | 25 March 2026 |
THE COURT ORDERS THAT:

1. A writ of certiorari issue to quash the decision of the second respondent dated 4 November 2024 not to revoke the cancellation of the applicant’s visa.

2. A writ of mandamus issue directed to the second respondent, differently constituted, requiring it to determine the applicant’s request for revocation according to law.

3. The first respondent pay the applicant’s costs of the application.

4. The applicant and her counsel be granted liberty to apply to seek an order pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

MOORE J:

Introduction

1 This is an application for judicial review of a decision made by the Administrative Review Tribunal (Tribunal) to affirm a decision of a delegate to the Minister for Immigration and Citizenship (the Minister) to not revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) (Migration Act).

2 The applicant, Ms Eden Brown, asserts that the Tribunal breached s 499(2A) of the Migration Act by failing to properly apply two “primary considerations” in “Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 110).

3 Ms Brown is a 28 year old woman who was born in New Zealand but relocated to Australia with her parents when she was 2 years old. She has lived in Australia since then until she relocated to New Zealand in early 2025. Prior to her relocation, she was detained at the Villawood Immigration Detention Centre.

4 Ms Brown has a 9 year old son, who I will refer to in these reasons as “K” to protect the child’s identity. K’s father is an Australian citizen and is believed currently to be incarcerated. K is an Australian citizen and resides in Australia under the care of his paternal grandmother, Ms Tamra James. He has been unable to live with Ms Brown, except for short periods of time, including because of Ms Brown’s offending.

5 Ms Brown has a significant history of offending that commenced when she was 17 years old.

6 On 8 March 2023, Ms Brown’s “Class TY Subclass 444 Special Category (temporary) visa was mandatorily cancelled under s 501(3A) of the Migration Act (Cancellation Decision), following her conviction of the offences “unlawful use of motor vehicles aircraft or vessels - use (five counts)” and “enter dwelling and commit” for which she was sentenced to imprisonment for 18 months.

7 Ms Brown’s visa had previously been subject to a mandatory cancellation on 12 April 2019, which is not the subject of the present application. The mandatory cancellation of 12 April 2019 was successfully revoked on 28 August 2019.

8 On or around 11 March 2023, Ms Brown made representations to the Minister requesting revocation of the Cancellation Decision under s 501CA of the Migration Act.

9 On 12 August 2024, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (No n- Revocation Decision).

10 Ms Brown applied for merits review of the Non-Revocation Decision, pursuant to s 500(1)(ba) of the Migration Act.

11 On 4 November 2024, the Tribunal affirmed the Non-Revocation Decision (Tribunal Decision) and delivered written reasons in this regard (Reasons). As the present application for judicial review focuses on the Tribunal’s consideration of specific considerations under Direction 110, it is not necessary to provide a comprehensive account of the Reasons. In summary, the Tribunal concluded that the protection of the Australian community from criminal conduct, and the expectations of the Australian community that non-citizens obey Australian laws, weighed heavily against the revocation of the Cancellation Decision. The Tribunal found that Ms Brown had an extensive history of criminal offending which was frequent and serious, exacerbated by her chronic drug addiction that had not been treated by any long term rehabilitation program. The Tribunal found that there was a moderate to high risk that Ms Brown would reoffend generally, and a moderate risk of violent offending, if she was released to the Australian community.

12 By her amended originating application dated 10 September 2025, Ms Brown applies for judicial review of the Tribunal Decision on the basis that the Tribunal failed properly to apply two “primary considerations” in Direction 110 (discussed further below). Ms Brown asserts that these failures result in the Tribunal Decision being vitiated by jurisdictional error.

13 Before turning to explain the precise grounds of judicial review advanced by Ms Brown, I first outline the legislative framework and the considerations the Tribunal was required to apply.

Legislative Framework

14 Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a non-citizen if the person does not pass the character test on the basis, inter alia, that the person has a “substantial criminal record” and is serving a sentence of imprisonment on a full time basis in a custodial institution. A person with a “substantial criminal record” includes a person who has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Migration Act.

15 There is no dispute that Ms Brown did not pass the character test for the purpose of the mandatory cancellation under s 501(3A).

16 Section 501CA(4) of the Migration Act provides the Minister with a broad discretion to revoke a mandatory cancellation if the non-citizen makes representations in accordance with the invitation to do so, and the Minister is satisfied that the person passes the character test (as defined by s 501), or that there is another reason why the cancellation decision should be revoked.

17 If the Minister revokes a s 501(3A) cancellation decision, that cancellation decision is taken not to have been made: s 501CA(5) of the Migration Act.

18 In exercising its powers to revoke a cancellation decision under s 501CA(4), the decision-maker, which includes a delegate of a Minister or the Tribunal, “must comply” with any written direction the Minister gives pursuant to s 499(1) of the Migration Act. Section 499(2A) of the Migration Act provides that “[a] person or body must comply with a direction under subsection (1).”

19 At the time of the Tribunal Decision on 4 November 2024, the Tribunal was required to comply with Direction 110, made pursuant to s 499(1) of the Migration Act, which commenced on 21 June 2024. The purpose of Direction 110 is “to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act”: paragraph 5.1(4) of Direction 110.

20 Direction 110, at paragraph 5.2, provides a list of “principles” which are expressed to “provide the framework within which decision-makers should approach their task of deciding…whether to revoke a mandatory cancellation under section 501CA.” It is not necessary to outline these principles as they are not directly relevant to the present application, save to note the chapeau to paragraph 5.2, which states (emphasis added):

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

21 Part 2 of Direction 110 specifies considerations that must be considered where relevant by a decision-maker in making a decision under, inter alia, s 501CA to revoke or affirm a mandatory cancellation. The considerations include both “Primary Considerations” listed at paragraph 8 and “Other Considerations” listed at paragraph 9.

22 The Primary Considerations at paragraph 8 are as follows:

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

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

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

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

(5)    expectations of the Australian community.

23 The present application turns on two of these Primary Considerations: Primary Consideration 3 (the strength, nature and duration of ties to Australia) and Primary Consideration 4 (the best interests of minor children in Australia). I discuss those primary considerations in further detail below in these reasons.

24 Paragraph 7 of Direction 110 specifies that the first primary consideration (protection of the Australian community from criminal or other serious conduct) is generally to be given greater weight than the other Primary Considerations. Otherwise, Primary Considerations should be given greater weight than the “Other Considerations”. The present application does not turn on the “Other Considerations”.

Principles concerning the requirement to comply with directions

25 Before dealing with the bases for which Ms Brown claims the Tribunal failed to comply with Direction 110, I will make some brief observations about the guiding principles regarding the Tribunal’s requirement to comply with directions made pursuant to s 499(2A) of the Migration Act.

26 Section 499(2A) of the Migration Act provides that a decision-maker “must comply with a direction”, such as Direction 110, when deciding whether to, inter alia, revoke the mandatory cancellation of a non-citizen’s visa.

27 A failure to comply with such a direction by failing properly to address one of the Primary Considerations may constitute jurisdictional error: Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; [2015] HCA 15 at 68.

28 That is because the obligations imposed by a direction, validly made under s 499 of the Migration Act, are intended by reason of s 499(2A) “to be an essential or inviolable limitation on the power conferred by the relevant provisions” of the Migration Act, including s 501CA(4): YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) at 39. Those observations by Mortimer J were adopted by the Full Court in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 305 FCR 26; [2024] FCAFC 119 at 101.

29 While directions made under s 499 of the Migration Act give detailed content to the considerations a decision-maker must take into account, “it is not the content of the Direction which determines the outcome of the exercise of the … discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case”: Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461; [2016] FCAFC 48 at 78.

30 All provisions within a direction must be read in the context of the direction. The purpose of Direction 110 is to guide decision-makers in performing their functions under the Migration Act, and decision-makers must consider the specific and relevant circumstances of each case: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265; [2024] HCA 2 (Ismail) at 22.

31 Where the alleged error is a breach or misapplication by a statutory decision-maker of a condition governing the making of a decision, the relevant facts may be established by nothing more than the tender of the decision-maker’s statement of reasons: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 (LPDT) at [11] and 30.

32 A reviewing court is not “astute to discern error” in the reasons of an administrative decision: Plaintiff M64 /2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at 25.

33 Where there has been a failure to consider a matter required to be considered, it is usually necessary to demonstrate that the error is material. The question is whether the decision that was in fact made could realistically have been different had there been no error, where “realistic” is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable: LPDT at [7] and [14]. Unless there is identified a basis on which it can affirmatively be concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met: LPDT at [16].

Application for judicial review

34 Ms Brown asserts that the Tribunal failed properly to apply Direction 110 to its decision in breach of s 499(2A) of the Migration Act in the following two respects:

(a) the Tribunal failed to consider the two separate and discrete considerations or “tests” set out in Primary Consideration 3 (Ground 1); and

(b) the Tribunal failed to make a clearly reasoned, positive determination about whether a decision to revoke, or not revoke, cancellation of Ms Brown’s visa would be in K’s best interests as required by Primary Consideration 4 (Ground 2).

35 There is no dispute between the parties that the Primary Considerations must be taken into account by the Tribunal when deciding whether to revoke a visa cancellation decision, and that non-compliance with Direction 110 may amount to jurisdictional error.

36 As the factual basis for each ground is different, I will deal with relevant matters in relation to each ground separately below. There is, however, a degree of overlap with respect to considerations concerning K.

Ground 1 (Primary Consideration 3)

37 The first ground advanced by Ms Brown is that the Tribunal misapprehended the nature of the two separate and discrete considerations it was required to take into account pursuant to Primary Consideration 3 of Direction 110.

38 Primary Consideration 3, which is located at paragraph 8.3 of Direction 110, provides as follows (emphasis added):

8.3 The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

39 Ms Brown contends that Primary Consideration 3 contains two discrete and mutually exclusive considerations, the first consideration being paragraph 8.3(1) and the second consideration being paragraph 8.3(2). Ms Brown contends that consideration of these paragraphs cannot be merged.

40 Ms Brown asserts that the text and structure of Primary Consideration 3 supports this interpretation, and properly construed:

(a) paragraph 8.3(1) requires consideration of the impact of a decision on immediate family members in Australia, while paragraph 8.3(2) requires consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community; and

(b) paragraph 8.3(1) applies to consideration of a decision to refuse a visa, cancel a visa or revoke the cancellation of a visa, while paragraph 8.3(2) only applies to a subset of those decisions, being decisions to cancel a visa or revoke the cancellation of a visa.

41 Ms Brown asserts that this interpretation was endorsed in Siale v Minister for Immigration and Citizenship [2025] FCA 608 (Derrington J) (Siale) at 52, as follows:

Paragraph 8.3 directs a decision-maker’s consideration of a non-citizen’s ties to Australia in two ways. First, it directs attention to the impact of a non-citizen’s removal on immediate family members who are Australian or who have an indefinite right to remain in Australia. Secondly, it directs attention to the impact on the non-citizen of the loss of any other ties to the Australian community. This two-pronged interpretation is evident from the text and structure of paragraph 8.3. Paragraph 8.3(1) refers specifically to “any impact of the decision on the non-citizen’s immediate family members.” By contrast, paragraph 8.3(2) directs a decision-maker to consider the strength of the ties that the non-citizen has to the Australian community, having particular regard to the length of time the non-citizen has resided in Australia, including whether he or she arrived as a young child, and considering when the non-citizen’s offending began.

I will return to Derrington J’s observations in Siale later in these reasons.

42 The Tribunal’s Reasons in relation to Primary Consideration 3 is as follows (emphasis in original):

341.    The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

342.    Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.

1. Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

344.    The Applicant has lived in Australia since arriving at aged 2 with her parents from New Zealand and hence she has spent the majority of her life, and indeed her formative years in Australia.

345.    The Applicants parents have been separated for an extended period and the evidence indicates that her parents since their separation have had a number of different partners.

346.    The Applicant’s father and sister Shontelle reside in Australia and her mother is currently residing in New Zealand where she is renovating a family home. She expects to be in New Zealand for at least the next 14 months and is planning to return to reside in Australia in the long term. The Applicant also has a brother in Australia, but there is no evidence of contact between these siblings.

347.    The Applicant also has nephews and niece’s resident in Australia, a cousin Jessica McMillan, and Tamra James her son’s carer, and as noted the mother of her son’s father Mr James.

348.    The Applicant has a friend in Australia Natasha Miller whom the Applicant has known for more than 12 years. She has another friend Karli McMillan who has offered the Applicant accommodation if she is released from detention.

349.    The Applicant attended high school until she was in year 11. The evidence indicates that the Applicant’s education was fractured and that she attended multiple schools and she was suspended and then expelled from high school.

350.    When the Applicant left high school, she began working with children in a child-care centre and the evidence before the Tribunal indicates that she completed a Certificate III in Childrens Services. This job was not sustained by the Applicant.

351.    Because of the chronicity of her drug use the Applicant has a limited work history. There is a period of work in child-care and for a brief period after her release from immigration detention in 2019, a period of work at Woolworths. The job with Woolworths was short lived due to the Applicant returning to co-habit with Mr James and recommencing her drug use and criminal offending.

352.    The Tribunal with respect to this consideration gives weight to the fact that the Applicant has resided in Australia since her arrival as an infant.

353.    Apart from the brief period of time in which the Applicant worked in the childcare sector there is no evidence before the Tribunal that indicates that the Applicant has spent time contributing positively to the Australian community.

1. Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

355.    As noted, the Applicant has an Australian born son, K who was born on 28 December 2016. Due to his mother’s drug addiction and associated offending and periods incarcerated, K has been residing with his paternal grandmother Tamra James for almost 5 years. K is now 7. The Applicant since she has been in immigration detention has regular face time calls with her son.

356.    The evidence indicates that after the Applicant was released from immigration detention in 2019 after the revocation of her visa the Applicant moved in with her sister Shontelle and resumed a parenting role for K. The evidence indicates that the resumption of this role was short lived and that within months of it starting the Applicant resumed a relationship with Mr James and slipped back into drug use and criminality.

357.    The evidence before the Tribunal indicates that the Applicant and her mother have had significant periods of estrangement.

358.    The evidence indicates that the Applicant is close to her father Mr Brown. The evidence from Ms McMillan suggested that this was a toxic relationship due to Mr Brown’s drug and alcohol use.

359.    With respect to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents or people who have an indefinite right to remain in Australia, the Tribunal finds as follows.

360.    The Applicant’s mother is currently resident in New Zealand and expects to be there for at least the next 14 months. The evidence before the Tribunal indicates that the Applicant has had a fractious relationship with her mother over time. The evidence indicates that the Applicant has close relationship with her father and the Applicant’s representative has submitted that the Applicant’s father has mental health issues namely anxiety and depression and derives considerable support from his daughter when she is in the community. The evidence indicates that the Applicant has had a fractious relationship with her sister Shontelle Cross due to the persistent nature of her drug use and criminality. The evidence indicates that Ms Cross is currently supportive of the Applicant due to the time that the Applicant has spent in prison and in detention and free from drug abuse and criminality. Ms Cross is attempting to re-build a relationship with the Applicant. As noted, there is limited evidence of the relationship that the Applicant has with her brother Mr Hunt.

361.    The Tribunal notes that the Applicant since being in prison and immigration detention on this occasion has re-established a connection with her son. This connection has been largely via video communication. The evidence indicates that Tamra James has been the primary carer for K for almost the past five years. The evidence before the Tribunal indicates that in the short periods of time that the Applicant has had care and control of her son that this has been short lived because of her devolving back into drug use and associated criminality. The evidence indicates that K is the closest Australian citizen link to the Applicant.

362.    The Tribunal having regard to the relevant considerations with respect to paragraph 8.3(2) of Direction 110 finds that moderate weight should be given to this primary consideration with respect to revocation of the cancellation of the Applicant’s visa.

Conclusion: Primary Consideration 3

363.    Primary Consideration 3 weighs moderately in favour of the revocation of cancellation of the Applicant’s visa.

43 On the basis of her interpretation of Primary Consideration 3, Ms Brown asserts that the Tribunal misapplied that primary consideration by treating paragraph 8.3(2) as an elaboration of paragraph 8.3(1) when considering whether there was another reason to revoke the Cancellation Decision. That conflation is said to be apparent “not merely from the structure and expression of the Tribunal’s reasons but also from the substance of its reasoning.” Ms Brown asserts that the Tribunal incorrectly combined the separate tests such that neither was applied in a proper way in the Tribunal’s Decision.

44 Ms Brown acknowledges that at Reasons [341], the Tribunal recited paragraph 8.3(1) of Direction 110, though it did not expressly attribute that recitation to paragraph 8.3(1). However, in the next paragraph (at Reasons [342]), the Tribunal stated (emphasis added):

Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.

45 Ms Brown asserts that the use of phrase “allows for the consideration of” indicates that the Tribunal erroneously assumed that paragraph 8.3(2) was “some form of elaboration, perhaps of a discretionary nature” of paragraph 8.3(1), and that the Tribunal proceeded on the basis that Primary Consideration 3 only comprised a single consideration.

46 Ms Brown asserts that the Tribunal’s misapprehension is further supported by the following features of the Reasons:

(a) first, the Reasons only include bold sub-headings with respect to sub-paragraphs (a) and (b) of paragraph 8.3(2);

(b) secondly, the Reasons only refer to the Tribunal’s consideration and conclusion in relation to paragraph 8.3(2) at Reasons [362] and otherwise express no separate conclusion with respect to paragraph 8.3(1);

(c) thirdly, in the context of its consideration of sub-paragraph 8.3(2)(a), the Tribunal considered Ms Brown’s relationships with both immediate family members and also more distant and social relations thereby conflating the considerations in paragraph 8.3(1) and paragraph 8.3(2); and

(d) fourthly, in the context of its consideration of sub-paragraph 8.3(2)(b), the Tribunal did not make findings with regard to the “strength, duration and nature” of Ms Brown’s relationships with persons other than immediate family members with which this sub-paragraph is properly concerned.

47 While Ms Brown frames Grounds 1 and 2 as instances of non-compliance by the Tribunal with Direction 110, the Minister claims that Ms Brown’s claim is a mere complaint about the degree or quality of consideration the Tribunal gave to paragraphs 8.3(1) and (2).

48 The Minister states that no authority was cited by Ms Brown for the proposition that there is a prohibition on the Tribunal “combining” their consideration of paragraphs 8.3(1) and (2), which the Minister notes are “closely connected and overlapping.” However, the Minister does not appear to contend that paragraph 8.3 contains a singular consideration. The Minister asserts that, read fairly and as a whole, the Tribunal did advert to and consider all matters it was required to consider under paragraphs 8.3(1) and (2), whether they were discussed under the rubric of paragraph 8.3 or at earlier sections of the Reasons. The Minister points specifically to earlier sections of the Reasons which summarise evidence given about the relationships between Ms Brown and various family and friends.

Did the Tribunal apply Primary Consideration 3 in a proper manner?

49 Some observations may be made about paragraph 8.3 of Direction 110. First, the chapeau to paragraph 5.2 of Direction 110 directs a decision-maker to the Primary Considerations and Other Considerations “to the extent relevant in the particular case…that must be considered” in making a decision under ss 501 and 501CA of the Migration Act. Therefore, if a Primary Consideration is relevant in the particular case, it must be considered.

50 Secondly, the threshold for the applicability of paragraph 8.3(1) is different from the threshold for paragraph 8.3(2). Paragraph 8.3(1) applies where consideration is being given to refuse, cancel or revoke the mandatory cancellation of a non-citizen’s visa, whereas paragraph 8.3(2) does not apply where consideration is being made to refuse a visa.

51 Thirdly, paragraphs 8.3(1) and 8.3(2) concern different types of relationships.

52 Fourthly, paragraphs 8.3(1) and 8.3(2) are directed to different enquiries. Paragraph 8.3(1) is concerned with the impact of a visa decision on the non-citizen’s immediate family members in Australia. Paragraph 8.3(2) is concerned with the strength, nature and duration of any other ties the non-citizen has to the Australian community.

53 The structure of Primary Consideration 3 is relatively straightforward. Under paragraph 8.3(1), the decision maker must consider any impact of the decision on the relatively narrow class of persons consisting of the non-citizen’s immediate family members (if they are Australian citizens, permanent residents, or otherwise have a right to remain in Australia indefinitely).

54 Paragraph 8.3(2) requires additional consideration (“must also consider”) in the cases to which it applies (i.e. when considering whether to cancel or revoke the mandatory cancellation of a relevant visa). That consideration is additional to any consideration under paragraph 8.3(1). It is also potentially much broader. It requires consideration of the strength, nature and duration of “any other ties” to the Australian community. Merely by way of example:

(a) the non-citizen might have ties with family members who are not “immediate family”, or potentially with immediate family who are not Australian citizens, permanent residents or persons who have a right to remain in Australia indefinitely;

(b) the non-citizen might have ties with friends in the Australian community; or

(c) the non-citizen might have ties with the broader community: e.g. the non-citizen might be coaching a sporting team, or a member of an association, or doing volunteer work, or working in a business as part of a team.

55 The observations in Siale at [52], set out earlier, highlight the distinction between paragraphs 8.3(1) and 8.3(2). There is one aspect of the quoted passage from Siale which requires comment, being the observation of Derrington J that paragraph 8.3(2) is concerned with the impact on the non-citizen of the loss of any other ties. Whilst the relevant consideration may well include considering the impact on the non-citizen, I do not consider that paragraph 8.3(2) can be read as limiting the required consideration to that subject. Indeed, unlike paragraph 8.3(1), paragraph 8.3(2) is not expressed in terms of “impact” at all. It may in any event be necessary to consider the effect on others: e.g. the impact on the local cricket team of the loss of their coach, the impact on an Australian of the loss of a good friend and provider of support, or the impact on a business of the loss of a valued employee.

56 Whilst paragraphs 8.3(1) and 8.3(2) deal with different considerations, it does not follow that a decision-maker is required rigidly to consider those paragraphs separately in its Reasons, so long as the Reasons indicate that the decision maker considered and understood the relevant matters in paragraphs 8.3(1) and 8.3(2). I also note the comments of the High Court in Ismail at [50] that:

The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons. Nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision-maker had quarantined the assessment of each topic from every other topic.

57 The term “immediate family members” is not defined in Direction 110. There did not appear to be any dispute that Ms Brown’s parents, half-sister and son were “immediate family members”. For completeness, I note that Ms Brown has a half-brother, but there was no evidence before the Tribunal that Ms Brown has a relationship with him.

58 Turning to the Tribunal’s Reasons, the Reasons reveal something of a confused approach to paragraphs 8.3(1) and 8.3(2).

59 First, having summarised what was required for paragraph 8.3(1) in the Reasons at [341], the Tribunal then observed at Reasons [342] that paragraph 8.3(2) “allows” for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. This is not correct, in that paragraph 8.3(2) does not “allow” for the consideration of those matters, but requires it where consideration is being given to whether a non-citizen’s visa should be cancelled or whether to revoke a mandatory cancellation.

60 Secondly, the section on Primary Consideration 3 contains a discussion of various factual matters that could properly fall for consideration under paragraph 8.3, but matters pertaining to the applicant’s immediate family relevant to paragraph 8.3(1) are mixed up with matters falling for consideration under paragraph 8.3(2). Thus, the Reasons first consider when the applicant arrived in Australia, then consider the applicant’s parents, then the applicant’s half-sister, then wider family members, then two friends, and then the applicant’s education and work history. All of this follows (and appears under) a bolded reference to sub-paragraph 8.3(2)(a) of Direction 110. However, some of the matters considered in this section relate to the applicant’s immediate family.

61 There is then a bolded reference to sub-paragraph 8.3(2)(b) of Direction 110 (considering the strength, duration and nature of any family or social links, being the “other” ties), and under that reference there is a discussion of the applicant’s son and the applicant’s mother and father (i.e. the applicant’s immediate family). The Tribunal then concludes that section at Reasons [362] by stating:

The Tribunal having regard to the relevant considerations with respect to paragraph 8.3(2) of Direction 110 finds that moderate weight should be given to this primary consideration with respect to revocation of the cancellation of the Applicant’s visa.

62 It is quite unclear what the Tribunal means by “the relevant considerations with respect to paragraph 8.3(2)” in a section that includes consideration of the applicant’s immediate family, which should be considered under paragraph 8.3(1), including by reference to the impact on those immediate family members.

63 It is not apparent that, in this section of the Reasons, the Tribunal considered what was required to be considered under paragraph 8.3(1). Under the heading of “Primary Consideration 3”, the Tribunal describes the strength, nature and duration of the relationship between Ms Brown and members of her immediate family, including her half-sister, father, mother and K. For example, the Tribunal described Ms Brown’s relationship with her half-sister Ms Shontelle Cross as “fractious” although Ms Cross was currently supportive of Ms Brown and is attempting to rebuild their relationship. However, as explained above, consideration of the strength, nature and duration of relationships is a different enquiry from consideration of the impact of the decision not to revoke the Cancellation Decision on her immediate family members which is required by paragraph 8.3(1).

64 It appears that the Tribunal did not apprehend the differences between paragraphs 8.3(1) and (2). The choice of the phrase “allows for the consideration” when describing the consideration under paragraph 8.3(2) potentially indicates that the Tribunal believed paragraph 8.3(2) to be either a discretionary consideration or an elaboration of the consideration in paragraph 8.3(1). That misapprehension is further supported by the lack of explicit reference to paragraph 8.3(1) and the Tribunal only referring to and expressing conclusions (at Reasons [362]) with respect to paragraph 8.3(2).

65 Although one might presume that had the Tribunal considered paragraph 8.3(1), it would have done so under the heading “Primary Consideration 3” (i.e. at Reasons [341] – [363]), the absence of consideration under that heading is not of itself fatal, provided that the relevant matter was considered.

66 It is of course necessary to consider the Tribunal’s Reasons as a whole and in context. Further, when considering the Tribunal’s Reasons, the Court is not permitted to enquire as to the quality or degree of consideration of the Tribunal: see ECE21 v Minister for Home Affairs (2023) 297 FCR 422; [2023] FCAFC 52 at 8.

67 Earlier in the Tribunal’s Reasons, the Tribunal summarised the evidence of Ms Cross, Ms Tania McMillan (Ms Brown’s mother), and Mr Stephen Brown (Ms Brown’s father). The evidence of Ms Cross and Ms McMillan are of relevance to this application. The Tribunal also summarised the representations made by Ms Brown and the Minister in their respective statements of facts, issues and contentions.

68 The Tribunal summarised the evidence Ms Cross gave at a hearing before the Tribunal. The Tribunal recounted that Ms Cross stated that K’s current carer, Ms Tamra James, had expressed that it was hard for her to continue to look after K and had expressed that she did not believe she would be able to continue to do so into the long term. The Tribunal recorded that Ms Cross advised that if Ms Brown is removed from Australia, it will have a significant impact on K. Ms Cross indicated that if Ms James cannot continue caring for K that she would give serious consideration to providing care to K as she would not allow him to go into foster care. At Reasons [235], the Tribunal recorded Ms Cross’ response to being asked what impact Ms Brown’s removal would have on her family:

The witness was asked what impact Eden’s removal would have on her family. The witness stated that she was trying to rebuild her relationship with her sister. The witness stated that she believed she would always end up with K. The witness stated that K does have behavioural issues and this will disrupt her own children. She advised that he is on medication for ADHD but his current carer Tamra gives him an iced coffee and other stimulants which does not assist. The witness stated that she does not want to interact at all with Mr James. The witness stated that if Eden was deported it would have a huge impact on K. She advised that Eden is not familiar with New Zealand, and it is a foreign country to her and that Eden is an Australian.

69 The Tribunal also summarised a written statement Ms Cross provided which contained similar evidence to that quoted above.

70 The Tribunal also recorded that Ms McMillan gave evidence before the Tribunal that if Ms Brown returns to New Zealand, she will provide emotional support to her but that she could not physically support her. Ms McMillan gave evidence that she currently resides in New Zealand and expects to remain there for another 14 months. The Tribunal stated that Ms McMillan gave evidence that in the event that Ms Brown is removed from Australia and if there is any evidence of K going into foster care, she or other family members such as Ms Cross would provide care to K.

71 The Tribunal summarised a written statement of Ms McMillan in which she, among other things, stated that Ms Brown’s separation from K would have an adverse impact on both of them. Ms McMillan stated that she currently resides in New Zealand but planned to return to live in Australia.

72 It is apparent from the foregoing that the impact of a decision to not revoke the Cancellation Decision on Ms Cross, Ms McMillan and K was to some extent addressed in the evidence of Ms Cross and Ms McMillan. The Tribunal diligently summarised this material. However, mere recitation of the evidence given by Ms Cross and Ms McMillan does not demonstrate that the Tribunal properly considered and applied paragraph 8.3(1).

73 There was no meaningful engagement by the Tribunal in its Reasons with what paragraph 8.3(1) required the Tribunal to consider: namely, the question of what impact a non-revocation of the Cancellation Decision would have on Ms Brown’s immediate family. There is no meaningful discussion of that impact, or any apparent weighing of that impact against any other factor. Nor is there any conclusion that there would not be a material impact on Ms Brown’s immediate family. I conclude that the Tribunal did not, in fact, give consideration to this mandatory factor.

74 In LPDT at [33], the High Court observed as follows in relation to Direction 90 which preceded Direction 110:

The error of the Tribunal was a breach by a statutory decision-maker of a condition governing the process of reasoning to be undertaken in exercising the decision-making power under s 501CA(4). The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

75 The Tribunal did not undertake that exercise in relation to the consideration of the impact of the cancellation of the visa on the applicant’s immediate family. It appears that this was because of a misunderstanding as to the separate aspects of paragraphs 8.3(1) and (2).

76 Because of the apparent misapprehension as to the operation of paragraph 8.3, there was more engagement by the Tribunal with the consideration in paragraph 8.3(2), namely the strength, nature and duration of Ms Brown’s other ties to the Australian community (albeit this was intermingled with consideration of the strength, nature and duration of Ms Brown’s ties to her immediate family). The Tribunal noted that Ms Brown arrived in Australia at the age of two and has spent the majority of her life in Australia. The Tribunal noted that Ms Brown has worked at a child-care centre and at Woolworths but neither of these jobs were sustained. The Tribunal concluded that there “is no evidence before the Tribunal that indicates that the Applicant has spent time contributing positively to the Australian community.” The Tribunal detailed Ms Brown’s relationship with friends such as Ms Natasha Miller who Ms Brown has known for more than 12 years, and another friend Ms Karli McMillan who has offered Ms Brown accommodation if she is released from immigration detention.

77 While the Tribunal’s consideration of paragraph 8.3(2) was brief, this may have been reflective of Ms Brown’s limited other ties to the Australian community. However, in light of the apparent confusion by the Tribunal as to the proper requirements of paragraph 8.3, the mixing up of the requirements of paragraphs 8.3(1) and 8.3(2), and the apparent consideration of subject matter relevant to paragraph 8.3(1) under the rubric of paragraph 8.3(2), it is difficult to conclude that there has been a proper consideration of the matters required to be considered under paragraph 8.3 as a whole.

Was the error material?

78 Because the Tribunal did not consider the impact of the revocation of the Cancellation Decision on Ms Brown’s immediate family as it was required to, matters that could have been significant factors were not assessed. Having regard to the potential impact of Ms Brown’s removal on her mother, her father, her sister, and especially her young son, it is quite possible that the result could have been different. Those were potentially material considerations. They were simply not weighed against the other matters taken into account.

79 In my opinion, there is a realistic possibility that the outcome of the decision could have been different had the Tribunal properly applied Primary Consideration 3.

80 Whilst the Minister asserts that it was inevitable that the greater weight it afforded to paragraph 8.1 (i.e. the first primary consideration) and paragraph 5.2(2) of Direction 110 would have resulted in the same decision, it is impossible to draw such a conclusion when a matter of significance required to be considered simply was not considered. It would involve “improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning”, to adopt the language of LPDT at [36]. It is of course possible that the matters omitted would not have tipped the balance. However, there is a realistic possibility that it would have.

81 I therefore find that Ms Brown has established jurisdictional error in respect of Ground 1.

Ground 2 (Primary Consideration 4)

82 In her second ground, Ms Brown asserts that the Tribunal failed to make a positive determination about whether the Non-Revocation Decision under s 501CA is or is not in the best interests of K as it was required to with respect to Primary Consideration 4.

83 Primary Consideration 4, which is located at paragraph 8.4 of Direction 110, provides as follows:

8.4 Best interests of minor children in Australia affected by the decision

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

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.

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

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

e)    whether there are other persons who already fulfil a parental role in relation to the child;

f)    any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct

84 There is no dispute between the parties that K was the only relevant child whose best interests had to be considered pursuant to Primary Consideration 4.

85 In its Reasons, the Tribunal first acknowledged, under the heading “Primary Consideration 4”, that it was required to “make a determination” with respect to whether non-revocation was in the best interests of a child affected by the decision (Reasons [364]).

86 A matter that appeared to feature heavily in the Tribunal’s consideration was that K’s paternal grandmother, Ms Tamra James, fulfilled a primary parental role to K and Ms Brown’s role in his life was “secondary in nature.” The Tribunal noted that K had been in the care of his paternal grandmother for most of his life, and Ms Brown’s attempts to care for K had been “short lived”. The Tribunal referred to this consideration in relation to the factors at sub-paragraphs (a), (b), (c), (e) and (h) of paragraph 8.4(4) (Reasons [369], [374] – [375], [377], [383], [389]).

87 The Tribunal acknowledged concerns that were raised in the evidence that if Ms Brown’s visa remained cancelled, K could end up in foster care due to the inability of Ms James to continue to be K’s carer. However, the Tribunal also noted that there was evidence that Ms Cross and Ms McMillan would consider stepping up to care for K to avoid him being placed in foster care (Reasons [371] – [372]), as follows:

371.    Concerns were raised in the evidence before the Tribunal that if the Applicant’s    visa remains cancelled that K may end up in foster care due to the inability of Tamra James to continue to provide that care to K.

372.    However, evidence was adduced at the review hearing that indicated that in the event of the Applicant being deported to New Zealand, that Ms Cross and Ms McMillan would both consider stepping up to provide care to K to avoid him being placed into foster care.

88 The Tribunal also considered Ms Brown’s drug abuse and offending history, noting that there was a “strong chance that the Applicant may well slip into past patterns of drug abuse and hence criminality”: Reasons [377].

89 At Reasons [390], the Tribunal noted that there was no evidence that Ms Brown has ever engaged with a residential or non-residential drug rehabilitation program in the community. The Tribunal observed that “it would clearly be in K’s best interests if his mother had a record of such engagement suggestive of a more robust platform of rehabilitation”, but then observed that “[t]he fact is that the Applicant does not.”

90 The Tribunal noted that if Ms Brown is separated from K, this would inhibit her ability to have physical contact with her son and limit that interaction to phone and video calls. The Tribunal was of the view that “this is not a full substitute for being physically present with her son.” The Tribunal also noted that there was evidence, through Ms Cross, Ms McMillan and Ms Brown, that K wished to have a relationship with his mother going forward.

91 The Tribunal ultimately concluded that:

Having regard to the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision weigh moderately in favour of the revocation of cancellation of the Applicant’s visa.

92 While Ms Brown acknowledges that the Tribunal concluded that Primary Consideration 4 weighed moderately in favour of revocation, Ms Brown complains that the reasoning was deficient in the sense that there was no positive, clearly articulated determination on whether revocation is or is not in the best interests of K and the express words of paragraph 8.4(1) required such a determination to be made.

93 Ms Brown contends that the Tribunal misdirected its analysis of K’s best interests in three respects:

(a) First, Ms Brown asserts that the Tribunal failed to make a clearly reasoned, positive finding as to whether revocation was in K’s best interests.

(b) Secondly, Ms Brown asserts that the Tribunal failed to “squarely confront” the consequences of non-revocation on K’s best interests.

(c) Thirdly, Ms Brown asserts that the Tribunal erroneously addressed K’s best interests on the presumption of non-revocation in the sense that the Tribunal erroneously considered how K’s best interests would be served by the potential actions of third parties if Ms Brown’s visa cancellation was not revoked.

94 The Minister contends that the Tribunal did make a clearly, reasoned positive finding about whether revocation would or would not be in K’s best interests. The Minister submits that the Reasons “must be seen in context” and the Tribunal sufficiently canvassed the evidence and submissions that were put to it. The Minister submits that the Tribunal’s finding was that:

(a) revocation would be in K’s best interests, but only if Ms Brown had a record of engaging in community based rehabilitation; and

(b) as Ms Brown had no such record, revocation was not in K’s best interests.

95 I do not consider this submission to correctly state the Tribunal’s decision. The Tribunal did not conclude that, in light of the absence of evidence of Ms Brown engaging in community-based rehabilitation, revocation was not in K’s best interests. On the contrary, the Tribunal concluded that revocation was in K’s best interests. It concluded, at Reasons [391], that “the best interests of minor children in Australia affected by this decision” weighed moderately in favour of the revocation of the Cancellation Decision. It is possible that the Tribunal concluded that, although the failure of Ms Brown to address her drug addiction problems was a concern, this was outweighed by the desirability of Ms Brown having a relationship with K, in the interests of K, which would be difficult if she was absent from Australia. However, the precise reasoning is not clear.

96 The Minister’s misapprehension as to what the Tribunal decided in relation to K’s best interests does not exactly support the Minister’s submission that the Tribunal has made a clear determination as to the best interests of K.

Did the Tribunal apply Primary Consideration 4 in a proper manner?

97 Primary Consideration 4, at paragraph 8.4(1), provides that the Tribunal “must make a determination about whether…non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.”

98 Primary Consideration 4, at paragraph 8.4(4) also provides a list of factors that must be considered where relevant when considering the best interests of the child.

99 Several decisions of this Court (including the Full Court) have confirmed that the phrase “must make a determination” in paragraph 8.4(1) requires a decision-maker to make a positive finding or conclusion regarding the best interests of the relevant child: see RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 365; [2022] FCAFC 201 (RGCZ) at [44] – 45; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187; [2021] FCAFC 125 (Tohi) at 180; YNQY at 34.

100 It is not sufficient for a decision-maker merely to have regard to the child’s best interests. A failure to make a determination about whether revocation is or is not in the best interests of the child is a failure to complete the exercise of its jurisdiction: Tohi at [180].

101 Further, consideration of the best interests of the child should not be viewed through the prism of what the non-citizen would do if a non-revocation decision was made. The Full Court in RGCZ observed at [44] that the decision-maker is required to “engage with the question of whether the children’s best interests were served by the grant or refusal of the visa, not by hypothetical considerations of how the [non-citizen] might act if the visa was refused.”

102 Ms Brown’s first contention under this ground is a broad contention that the Tribunal failed to make a clearly reasoned, positive finding as to whether revocation was in K’s best interests. Ms Brown asserts that the only express finding made by the Tribunal in relation to K’s best interests was that “it would clearly be in K’s best interests if his mother had a record of such engagement suggestive of a more robust platform of rehabilitation” (at Reasons [390]).

103 I agree that the Tribunal’s Reasons are problematic and do not contain any clearly reasoned or positive finding as to the best interests of K. The fact that the Minister submitted before this Court that the Tribunal made a finding that revocation was not in K’s interest, when the ultimate conclusion was that the “best interests of minor children” weighed moderately in favour of revocation, supports the conclusion that there was no clearly reasoned positive finding. More generally, it is difficult to follow how the Tribunal reached the ultimate conclusion that it reached. There is no coherent reasoning process spelt out. There is no clear statement as to the best interests of K.

104 The reasoning of the Tribunal otherwise appears to proceed as follows:

(a) K’s primary parental figure was Ms James, who was the carer of K for 5 out of his 7 years of age.

(b) Most of K’s life had been spent in the care of Ms James due to Ms Brown’s drug use and offending. There was a strong chance that Ms Brown would slip back into past patterns of drug abuse and criminal behaviour.

(c) If the Cancellation Decision was not revoked, Ms Brown would cease to have physical contact with K and would be limited in her interactions to phone and video calls. The Tribunal found that this was “not a full substitute for being physically present with her son. ”

(d) There was evidence suggesting K wished to have a relationship going forward with his mother.

(e) It would clearly be in K’s best interests if his mother had a record of engagement with a residential or non-residential drug rehabilitation program in the community, suggestive of a more robust platform for rehabilitation, but the fact is that the applicant does not have such a record.

(f) The Tribunal concluded that the best interests of minor children weigh moderately in favour of the revocation of the cancellation of Ms Brown’s visa.

105 The foregoing potentially indicates that, despite the Tribunal’s reservations, the desirability of K having contact with his mother (including his desire to do so) was influential. However, it would be inappropriate for this Court to engage in conjecture as to how various matters were weighed in the Tribunal’s conclusion that “Primary Consideration 4 weighs moderately in favour of the revocation” of the Cancellation Decision.

106 Ms Brown’s second contention is that the Tribunal failed to “squarely confront the consequences of non-revocation for [K’s] best interests” and did not “grapple with the dimension of what [Ms Brown] had submitted non-revocation would entail for [K].”

107 In Ms Brown’s statement of facts, issues and contentions, Ms Brown made the following relevant submission:

A negative decision will ensure that this young mother remains physically separated from [K] as a child forever. We say forever because the circumstances are such that [K] would need to be an adult before he could independently travel to New Zealand to see his mother. He would lose the opportunity to have any non verbal contact with his mother while he was a child.

108 I reject Ms Brown’s second contention. As is apparent from my earlier observations, the Tribunal did have regard to the consequences of the separation that would be caused by non-revocation on K’s best interests. The Tribunal made an express finding regarding the impact of K’s potential physical separation from his mother if the Cancellation Decision was not revoked, namely, that a relationship limited to phone and video calls “is not a full substitute for being physically present with her son”: Reasons [380]. The Tribunal also considered evidence of K’s wishes to continue to have a relationship with his mother. The flaw in the Tribunal’s Reasons was not its failure to confront the consequences of non-revocation, but rather its failure to articulate how that matter weighed in its consideration of K’s best interests.

109 Ms Brown’s final contention under this ground is that the tribunal erroneously addressed K’s best interests on the presumption that if Ms Brown’s visa remains cancelled, K could end up in foster care. Ms Brown relies on the principle in RGCZ at [44], referred to above in these reasons, that a decision maker should not engage with the question of the child’s best interests by reference to hypothetical considerations about what steps might be taken if the visa was cancelled. In this case, Ms Brown submits that the Tribunal considered the potential actions of third parties (i.e. Ms Cross and Ms McMillan) who might intervene in the event of non-revocation when assessing K’s best interests.

110 I do not accept the applicant’s submissions on this topic. The present circumstances are not analogous to those in RGCZ. The principle in RGCZ might be attracted if, for example, the applicant was caring for K and the Tribunal engaged in speculation as to whether someone else suitable would look after K in the applicant’s absence. However, that is not the present situation. The Tribunal did not make a finding as to K’s best interests by reference to hypothetical considerations of what would happen in the event of non-revocation. That is because the Tribunal found that K’s primary carer was Ms James, and there was no evidence to suggest that Ms Brown could sustain a primary caring role for K in the event that a revocation decision was made. Rather, the Tribunal was simply identifying that whether or not the relevant visa was cancelled, there was evidence that Ms Cross and Ms McMillan would consider caring for K if Ms James could not continue to care for K.

111 In relation to materiality, there is no need for separate consideration. A failure to comply with s 499(2A) of the Migration Act is a single error – a breach by the statutory decision-maker of a condition governing the making of a decision, in failing to comply with Direction 110: LPDT at [31]. I have already concluded that the error is material. The second failure simply reinforces that conclusion.

Conclusion

112 For the above reasons, Ms Brown has succeeded in establishing jurisdictional error in relation to Grounds 1 and 2.

113 The Court will therefore make orders that the Tribunal Decision dated 4 November 2024 be set aside, and that the matter be remitted to the Tribunal, differently constituted, to be determined according to law as set out in these reasons.

114 I will also make an order that the Minister pay Ms Brown’s costs. An order is sought for the payment of Mr Rowe’s costs, to be agreed or assessed, pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth). I do not have sufficient material before me to make this order (for example, I have no information about whether a suitable costs agreement was formed), but I will grant liberty to the applicant and Mr Rowe to apply to seek an order in that form.

115 Finally, the Court expresses its gratitude to Mr Rowe for his assistance on a pro bono basis in this proceeding.

| I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moore. |
Associate:

Dated: 25 March 2026

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