Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 51

Original Word Document (95.4 KB) Federal Court of Australia

Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCAFC 51

| Appeal from: | Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128 |

| File number: | WAD 353 of 2025 |

| Judgment of: | SNADEN, HORAN AND DOWLING JJ |

| Date of judgment: | 24 April 2026 |

| Catchwords: | MIGRATION – appeal from decision to dismiss application for judicial review of decision of second respondent (“ Tribunal ”) – where appellant’s visa had been mandatorily cancelled by operation of s 501(3A) of the Migration Act 1958 (Cth) (the “ Act ”) – where the Tribunal was not satisfied that there existed “another reason” to revoke the cancellation under s 501CA(4) of the Act – where Australia has signed and ratified an international treaty requiring that the best interests of the child be “a primary consideration” in making certain administrative decisions – where ministerial direction issued under s 499 of the Act specified that the protection of the Australian community generally be given greater weight than other primary considerations (including, the best interests of minor children in Australia) – whether ministerial direction in that respect was invalid or “unlawful” – whether Tribunal’s decision to give effect to the ministerial direction was procedurally unfair – consideration of Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 – appeal dismissed, with costs |

| Legislation: | Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C A ss 6, 7, 8, 9

United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) |

| Cases cited: | Badari v Minister for Territory Families and Urban Housing (2025) 100 ALJR 30

Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209

Demir v Minister for Immigration, Citizenship and M u lticultural Affairs [2023] FCA 870

Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515

DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184

Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510

Nweke v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 136 ALD 235

Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 89

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 |

| Division: | General Division |

| Registry: | Western Australia |

| National Practice Area: | Administrative and Constitutional Law and Human Rights |

| Number of paragraphs: | 61 |

| Date of hearing: | 24 March 2026 |

| Counsel for the Appellant: | Mr S Kikkert (pro bono) with Mr N Gabriel (pro bono) |

| Solicitor for the Appellant: | Goldstone Migration (pro bono) |

| Counsel for the First Respondent: | Ms C Taggart |

| Solicitor for the First Respondent: | Sparke Helmore Lawyers |

| Counsel for the Second Respondent: | The second respondent filed a submitting notice, save as to costs |
ORDERS

| WAD 353 of 2025 |

| BETWEEN: | JACOB LYNCH

Appellant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | SNADEN, HORAN AND DOWLING JJ |
| DATE OF ORDER: | 24 april 2026 |
THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN AND DOWLING JJ:

1 At the risk of over-simplifying, it was held in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (“ Teoh ”) that Australia’s entry into the United Nations Convention on the Rights of the Child (opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); the “ Convention ”) created a legitimate (though rebuttable) expectation that, in the determination of applications made under the Migration Act 1958 (Cth) (the “ Act ”), the best interests of affected children would be considered as “a primary consideration”.

2 More than 30 years later, the appellant, Mr Lynch, submits that a decision made in respect of him—more precisely, in respect of an application that he made under the Act for the revocation of the mandatory cancellation of a visa that had previously been bestowed upon him—was made in a way that offends against the principles that the High Court recognised in Teoh. The result, he maintains, is that a decision made by the second respondent (hereafter, the “ Tribunal ”) should be recognised as a product of jurisdictional error; and that, insofar as he failed to accept as much, the primary judge erred in a way that this court should correct on appeal.

3 For the reasons that follow, that central contention is wrong and the appeal should be dismissed with costs.

Background

4 Mr Lynch is a citizen of New Zealand. He has lived in Australia since 1997 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa (the “ Visa ”). In 2023, he was convicted on a charge of assault occasioning grievous bodily harm. He was sentenced to a term of imprisonment of four years. It was not the first time that he had fallen foul of the law, nor the first time that he had been convicted on charges involving criminal violence.

5 On 24 July 2023—and as a mandatory consequence of the operation of s 501(3A) of the Act—Mr Lynch's Visa was cancelled (the “ Cancellation ”). Thereafter, he was invited to and did make representations to a delegate of the first respondent (the “ Minister ”) as to why that cancellation ought to be revoked. The particulars underpinning that application (the “ Revocation Application ”) are explored later in these reasons; but, in part, they focused upon the impact that Mr Lynch’s removal from Australia would visit upon his half-siblings and infant niece.

6 By a decision dated 31 July 2024, the Minister’s delegate decided not to revoke the Cancellation. That decision (the “ Delegate’s Decision ”) was then made the subject of an application for review that Mr Lynch made to the Tribunal (the “ Review Application ”). By a decision dated 24 October 2024, the Tribunal affirmed the Delegate’s Decision (the “ Tribunal’s Decision ”).

7 On 26 November 2024, Mr Lynch lodged an application in this court for judicial review of the Tribunal’s Decision (the “ Judicial Review Application ”). On 15 September 2025, the learned primary judge dismissed it with costs: Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128 (Colvin J; the “ Primary Judgment ”).

8 By an amended notice of appeal dated 24 February 2026, Mr Lynch now appeals from the whole of the Primary Judgment. He advances a single ground of appeal, to which attention will shortly return.

The Statutory Framework

9 Section 501(3A) of the Act operates to require, in certain circumstances, the cancellation of a visa holder’s visa. Presently, there is no dispute that it was properly engaged in respect of Mr Lynch. Section 501CA of the Act relevantly provides as follows:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)     For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)     is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)     As soon as practicable after making the original decision, the Minister must:

(a)     give the person:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the 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.

(3A)     The notice under subsection (3) must be given in the prescribed way.

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

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

(b)     the Minister is satisfied:

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

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

…

10 For the purposes of this appeal, there is no dispute that Mr Lynch is not a person who “…passes the character test”, nor that the Minister’s delegate properly came to be satisfied as much. At issue before the delegate—and, again, before the Tribunal—was whether there was “another reason” why the Cancellation ought to be revoked.

11 Section 499 of the Act bears upon that question. It provides (and provided) as follows, namely:

499 Minister may give directions

(1)     The Minister may 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.

…

(2)     Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)     A person or body must comply with a direction under subsection (1).

(3)     The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.

…

12 Insofar as is presently relevant, the power conferred by s 499(1) was exercised on 7 June 2024, when the Minister issued a direction entitled “Direction no. 110—Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (hereafter, “ Direction No. 110 ”). By its terms, Direction No. 110 operates (amongst other ways) to identify principles that “…provide the framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA”. It does so by identifying an array of factors that, to the extent relevant in any particular case, must be considered in making a decision under s 501CA of the Act.

13 Those factors are set out in Part 2 of Direction No. 110. It commences with s 6, which commands that “…a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. Thereafter, the following relevant sections may be found:

1. Taking the relevant considerations into account

(1)     In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2)     The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3)     One or more primary considerations may outweigh other primary considerations.

1. Primary considerations

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

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

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

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

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

(5)     expectations of the Australian community.

…

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

(1)     Decision-makers 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.

(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

…

1. Other considerations

(1)     In making a decision under section…501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a)     legal consequences of the decision;

b)     extent of impediments if removed;

c)     impact on Australian business interests

14 Presently, there is no dispute that:

(1) the Minister’s delegate was competent to decide Mr Lynch’s Revocation Application;

(2) the Tribunal was competent to review that decision on its merits;

(3) the primary judge had jurisdiction to determine the Judicial Review Application; and

(4) the current appeal is validly brought.

The Tribunal’s Decision

15 Before the Minister’s delegate—and again before the Tribunal—Mr Lynch submitted that “another reason” why the Cancellation ought to be revoked was that his removal from Australia would bear adversely upon the interests of his minor half-siblings and his infant niece.

16 In assessing the existence or otherwise of “another reason”, the Tribunal was astute to take into account the considerations of which Direction No. 110 required that it take account. Amongst them, of course, were the “Protection of the Australian Community” and the “Best interests of minor children in Australia affected by the decision”. Each was the subject of detailed analysis in the Tribunal’s reasons.

17 As to the former—the protection of the Australian community—the Tribunal was concerned to identify the requirements of Direction No. 110. To that end, it observed (Tribunal’s Decision, [80]-[82]):

Protection of the Australian Community

1.     The first primary consideration, cl 8(1) of Direction no. 110, requires the Tribunal to consider the protection of the Australian community from criminal or other serious conduct. The Tribunal is directed by cl 8.1(1) to “keep in mind that the safety of the Australian community is the highest priority of the Australian Government” and that the Tribunal should have “particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community”.

2.     Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.

3.     There are two limbs to this primary consideration:

(a)     the nature and seriousness of the applicant’s conduct to date;

(b)     the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

18 There then followed a lengthy analysis that culminated in the following conclusions (Tribunal’s Decision, [113]-[114]):

1.     Clause 8.1.2(1) of Direction no. 110 provides that the Tribunal should have regard to the Government’s view that the Australian community’s tolerance for any risk of 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 to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In the Tribunal’s view, there is a need to protect the Australian community from the risk of harm posed by the Applicant. The Tribunal considers that risk to be unacceptable.

2.     The Applicant poses an unacceptable risk to the Australian community. For this reason, this primary consideration weighs strongly against revocation.

19 As to the best interests of affected children, the Tribunal was similarly concerned to identify the requirements of Direction No. 110 (Tribunal’s Decision, [145]-[147]):

Best interests of minor children in Australia affected by the decision

1.     Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant.

2.     The Applicant identified two minor half-siblings and a minor niece as being affected by the decision. They all live with the Applicant’s mother. His half siblings, Miss SH and Mstr EH, are 17 and 14 years of age respectively. The Applicant’s niece, Miss M, is an infant.

3.     The Applicant indicated to the Tribunal that they all live with his mother in a caravan and are reliant upon him for support.

20 It might be noted that the Tribunal’s record as to the import of paragraph 8.4 of Direction No. 110 is limited to determinations concerning “cancellation or refusal under s 501 [of the Act]”. Nonetheless, there is no apparent dispute that the Tribunal correctly appreciated that the requirements applied equally to decisions concerning revocation under s 501CA(4) of the Act.

21 Again, there followed after that rehearsal a detailed analysis of the interests of each of the three minor children who had been identified. It culminated in the following conclusions (Tribunal’s Decision, [154]-[155]):

1.     For the above reasons, the Tribunal considers that revocation would be in the best interests of each minor child. Whilst Miss SH is close to 18, she has just had a baby and suffers from increased anxiety. Mstr EH would also benefit from having the Applicant physically present in his life, noting his mother’s evidence that he is struggling with school attendance and his own evidence that he communicates well with his brother. Miss M has had limited contact with the Applicant, having met him in person for the first time at the hearing. However, the Tribunal accepts that her interests are aligned with those of her mother and uncle and as an infant there is a significant period before she reaches maturity during which time the Applicant could make a positive impact as a male role model in the home, including through supporting her mother and other immediate family members.

2.     The Tribunal finds the consideration of the best interests of children weighs in favour of revocation, to a moderate degree.

The judicial review application and the present appeal

22 By his Judicial Review Application, Mr Lynch sought to impugn the Tribunal’s Decision on two bases, only one of which is relevant to the present appeal. He maintained that the Tribunal’s Decision was a product of jurisdictional error in that the Tribunal had impermissibly attached “…greater weight [to] consideration 8.1 (Protection of the Australian Community) than any other primary consideration”.

23 The learned primary judge accepted that the Tribunal had, in fact, accorded greater weight to its consideration of the protection of the Australian community than that which it accorded to the needs of Mr Lynch’s minor half-siblings and niece: Primary Judgment, [41]-[47].

24 His Honour nonetheless was not satisfied that, by doing so, the Tribunal had acted “impermissibly” or in a manner apt to reflect jurisdictional error. It is unnecessary to set out in any detail his Honour’s reasoning in that regard. On appeal, Mr Lynch charges his Honour with having erred by failing to recognise that the Tribunal’s Decision was tainted by jurisdictional error. If the Tribunal’s Decision was so tainted, it will follow that his Honour will have erred by failing so to conclude; and, equally, if it was not, then no such error will have transpired. Either way, the proper disposition of the appeal turns much more upon consideration of the Tribunal’s Decision than upon the reasoning of the primary judge.

25 By his amended notice dated 24 February 2026, Mr Lynch presses a single appeal ground, which it is convenient to replicate:

The learned justice erred in His Honour’s conclusion that Direction 110 was not invalid and in His Honour’s finding that the Tribunal had not fallen into jurisdictional error. As such, the learned justice erred in finding that the Tribunal did not fall into jurisdictional error by placing greater weight upon the protection of the Australian community than any other primary consideration when the requirement to that effect in Direction 110 was unlawful. Additionally, or alternatively, the learned justice erred in finding that a decision which gave effect to the requirement in Direction 110 was not procedurally unfair. Additionally, or alternatively, the learned justice erred in finding that aspect of the procedure to be followed by the Tribunal was known to the Appellant and therefore the present case must be distinguished from the circumstances in Teoh, Wan and Tohi. Additionally, or alternatively, the learned justice erred in asking the wrong question.

26 To that ground are subjoined lengthy particulars. They are perhaps more in the nature of submissions and needn’t here be set out. It suffices, instead, to note the various dimensions that inhere in what is pressed. The first is to the effect that the Tribunal’s Decision was a product of jurisdictional error because Direction No. 110 was “invalid” (or, perhaps, “unlawful”), such that, by applying it—and, in particular, by attaching greater weight to its consideration of the protection of the Australian community than was attached to its consideration of the best interests of affected children—the Tribunal fell into jurisdictional error. Second and alternatively, Mr Lynch contends that, by applying Direction No. 110 to its consideration of the Review Application, the Tribunal denied Mr Lynch procedural fairness and, thereby, exercised its power otherwise than in a manner that was authorised under the Act.

Invalidity, consideration and weight

27 Central to Mr Lynch’s contention is the suggestion that the statutory power of revocation that the Tribunal was called upon here to exercise could not validly be exercised unless the Tribunal attached at least as much “weight” to its consideration of the best interests of affected children as it attached to other matters. As much arises (if we have properly understood the contention) as an incident of the requirement to afford procedural fairness (and, in particular, to afford prior notice of any intention to decide the Review Application in a manner not concordant with the “legitimate expectation” that the High Court recognised in Teoh). Mr Lynch maintains that, absent prior notice here that the weight that the Tribunal might attach to its consideration of the best interests of affected children would be less than the weight that it might attach to its consideration of a different matter or circumstance, procedural fairness would be denied; and denied in a way reflective of jurisdictional error.

28 It is useful to pause at this juncture to consider what is meant by the attaching of “weight” to particular considerations. In Demir v Minister for Immigration, Citizenship and M u lticultural Affairs [2023] FCA 870 (Kennett J), it was observed:

21    The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at 110 (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).

22    In the “real world” (to invoke the frequently cited statement by Hill J in Enichem ANIC Srl v Anti-Dumping Authority (1992) 39 FCR 458, 469), the ultimate decision as to which relevant factors are more important (and thus which side of the line a case falls) is likely to be instinctive, and correspondingly unlikely to be explained in granular detail. The thought process required of (and undertaken every day by) administrative decision-makers is therefore not something that can sensibly be dissected and identified as involving the impermissible attribution of excessive weight to a relevant factor. Attempting to do so takes the metaphor of “weighing” further than it can realistically go. If all of the mandatory considerations (and no irrelevant considerations) have been brought to bear, the ultimate synthesis — absent some statutory requirement to the contrary — is one for the decision-maker; and (aside from cases where legal unreasonableness is manifest in the outcome) the label “irrational” does not have any legal content when applied to that synthesis.

29 To speak, then, about the attaching of “weight” to a particular consideration is to do no more than recognise that a decision maker’s consideration of some matters might operate more persuasively or be more important to the outcome of a particular decision than the consideration of others. Unlike in the physical world, there are no recognised units of measurement. In that sense, “weight” is perhaps more usefully conceived of as a relative concept; in that, in some contexts, particular matters might be considered worthy of greater weight—that is, to incline more persuasively toward a particular result—than others.

30 With that acknowledged, attention might turn to the High Court’s judgment in Teoh. As has been noted, the High Court there recognised by majority (Mason CJ, Deane and Toohey JJ, Gaudron J agreeing on broader grounds, McHugh J dissenting) that, by the process of ratifying Australia’s commitment to the Convention, there arose a legitimate expectation that, insofar as concerned executive and administrative decisions about applications made under the Act (amongst other things), the best interests of affected children would be treated as “…a primary consideration”.

31 The existence of the “legitimate expectation” to which Mr Teoh in that case laid claim was recognised as subject to “statutory or executive indications to the contrary”: Teoh, 291 (Mason CJ and Deane J). As Toohey J put it (Teoh, 302):

…it is important to bear in mind that we are not concerned with enforceable obligations, but with legitimate expectations, and that there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation.

32 It has been said that “…the nomenclature of ‘legitimate expectation’ has, since Teoh, fallen out of favour in Australia”: DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184 (Steward J, citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1). Be that as it may, it is not presently suggested that Teoh is anything but good law.

33 Direction No. 110 operates to recognise a hierarchy by which are organised various, nominated considerations that are apt to (indeed, must) guide applicable decisions, including decisions about the revocation of mandatory visa cancellations. Most basically, the direction splits them into two categories: “Primary considerations” (which find expression in s 8) and “Other considerations” (which are set out in s 9). Albeit in a way that preserves the overall discretion of decision makers, s 7(2) of Direction No. 110 recognises that greater weight should “generally” be given to the “primary considerations” over the “other considerations”.

34 There is an additional dimension to the hierarchy that Direction No. 110 establishes. It is stated in terms by the first half of s 7(2): consideration of the protection of the Australian community “…is generally to be given greater weight than other primary considerations”. There are, then, three levels to the directional weightiness hierarchy: protection of the Australian community ranks highest, followed by the other “primary considerations”, followed by the “other considerations”. As much is stated “generally” and in ways not binding upon particular decision makers in particular factual contexts.

35 Teoh extends no further than to recognise, in the circumstances that there prevailed, the existence of a legitimate expectation by which, absent notice to the contrary, the relevant decision maker was to abide. Nothing that the High Court concluded forecloses upon the making of a direction under s 499 of the Act that operates to subordinate (or that contemplates or inclines toward the subordination of) the weight that a decision maker might attach to his or her consideration of the best interests of affected children relative to the weight that he or she might attach to the consideration of other matters. Section 499 is not constrained so as only to authorise directions that are consistent with High Court consideration.

36 By itself, that conclusion suffices to address Mr Lynch’s contention that Direction No. 110 was “invalid” or “unlawful”. Respectfully, that contention was not meaningfully developed during the hearing of the appeal and it is unclear to what extent Mr Lynch persisted with it. Regardless, it might swiftly be addressed. The proposition appears to hinge upon the language that Direction No. 110 employs. Mr Lynch maintains that its terms are internally inconsistent, in that the best interests of affected children are simultaneously held up as a “primary” consideration and a consideration that is “generally” to be given less weight than the protection of the Australian community. The best interests of affected children, he maintains, cannot simultaneously be and not be “primary”.

37 Though not without some superficial attraction, the contention is founded upon unnecessary definitional rigidity. Whatever might be said of the choice of language in which Direction No. 110 is expressed, what is above described as the “directional weightiness hierarchy” is nonetheless clear. As to that, the Minister sought to impress upon the court that no such three-level hierarchy is established because the language that the direction employs is more aspirational or advisory than binding. True though that is, it remains that, even if only to an aspirational or “general” degree, the direction establishes the hierarchy described above.

38 Properly understood then, the contention (to the extent that Mr Lynch persisted with it) that Direction No. 110 is unlawful or invalid must distil to the notion that, by its content, it impermissibly extended beyond what the Minister was authorised under s 499 of the Act to make. To conceive of the contention in that way is to contemplate that there are limits to what the Minister might lawfully direct. Save insofar as they might be found in the text of s 499 of the Act (for example, in s 499(2)), the sources and content of those limitations have neither been identified nor explained, and they are not apparent. There is no proper basis upon which the court might accept that, insofar as it contemplates that the weight that might attach to one primary consideration should or might be greater than what should attach to consideration of the best interests of affected children, Direction No. 110 trespassed beyond what the Minister was authorised by s 499 to make (such that it might fairly be impugned as “invalid” or “unlawful”).

Procedural fairness

39 What, then, of procedural fairness? In this case, Mr Lynch could not legitimately have expected that, in deciding his Review Application, the Tribunal would not attach to its consideration of the protection of the Australian community a degree of weight greater than what it attached to its consideration of the best interests of his half-siblings and his niece. On the contrary, the significance and operation of Direction No. 110 were unambiguously well and properly understood, both prior to and, particularly, at the point that the Tribunal came to consider the Review Application.

40 As much is clear from the evidence that was before the primary judge. Direction No. 110 was introduced after Mr Lynch made the Revocation Application but before he received the Delegate’s Decision. On 28 June 2024, Mr Lynch received correspondence from the Minister’s department notifying him of the new direction and its potential significance. By that correspondence, Mr Lynch was alerted to what s 7(2) records: namely, that “…the primary consideration of the protection of the Australian Community is generally to be given greater weight than other primary considerations.” Mr Lynch was “…invited to comment on the above information”. It is plain that Mr Lynch was alerted to the content and significance of Direction No. 110 prior to the making of the Delegate’s Decision. That state of awareness just as plainly maintained throughout the course of the Review Application.

41 It cannot, then, be said that Mr Lynch had a legitimate expectation—whether founded in Australia’s commitment to the Convention (as in Teoh) or otherwise—that the best interests of his half-siblings and niece would weigh at least as heavily upon the disposition of his Review Application as would any other consideration. In the absence of such a legitimate expectation (and its inevitable collision with a faithful application of the indicative or “general” hierarchy that Direction No. 110 established), there was nothing that the Tribunal needed, for procedural fairness purposes, to override by notice.

Disposition

42 The primary judge was correct to conclude that the Tribunal’s Decision was not a product of jurisdictional error. The appeal should be dismissed and there is no reason not to order that Mr Lynch should pay the Minister’s costs.

| I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Snaden and Dowling. |
Associate:

Dated: 24 April 2026

REASONS FOR JUDGMENT

HORAN J:

43 I agree that the appeal should be dismissed for the reasons given by Snaden and Dowling JJ, whose reasons I have read in draft. I would make the following additional observations about the issues raised in the appeal.

44 Although both the Amended Notice of Appeal and the appellant’s written submissions included references to Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C A as being “invalid” or “unlawful”, any contention that the Direction was ultra vires was effectively abandoned in the course of oral submissions by counsel for the appellant, who confirmed that the appellant was not (or was no longer) “disputing the power by which Direction 110 was made” and was not contesting the lawfulness of the Direction.

45 This concession was properly made. As the primary judge held, “nothing in [Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273] stands for the proposition that the [United Nations Convention on the Rights of the Child] must be given effect in decision-making or that a decision-making process which does not require the best interests of children to be treated as a primary consideration is itself unlawful”: Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128 (PJ) at [19]. The primary judge also rejected the appellant’s submission to the effect that there was a legal requirement to treat the best interests of minor children as a primary consideration irrespective of the terms of Direction No 110, and held that s 499 of the Migration Act 1958 (Cth) confers power to give a written direction that does not require the best interests of minor children to be given at least equal weight with any other consideration: PJ [38]–[39].

46 The appellant presses the argument that, in applying Direction No 110, the Administrative Review Tribunal did not afford procedural fairness to the appellant. In particular, the appellant disputes the primary judge’s finding that the procedure to be followed by the Tribunal was known to the appellant: PJ [25]. This rests on a contention that Direction No 110 is internally inconsistent or contradictory, in so far as it provides both that the best interests of minor children in Australia are a primary consideration and that the protection of the Australian community from criminal or other serious conduct is generally to be given greater weight than other primary considerations. This is said to have placed the Tribunal in a “difficult position” in applying Direction No 110 in a manner that afforded procedural fairness to the appellant in the particular circumstances of the present case, by giving him notice and an opportunity to be heard against the making of a decision that did not treat the best interests of minor children as a primary consideration.

47 It is a premise of the appellant’s argument that the best interests of the child cannot be treated as a primary consideration unless given at least equal weight with any other consideration, including any other primary considerations. In other words, the appellant submits that, by potentially subjugating the best interests of minor children to the protection of the Australian community, Direction No 110 no longer treats the former as a primary consideration. In support of that submission, the appellant relied on Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at [32]–33 for the propositions that, in order to treat the best interests of relevant children as a primary consideration, it was not permissible to “treat any other consideration as inherently more significant” (emphasis added) than the best interests of those children, and that procedural fairness required the Tribunal to act on the basis that the best interests of minor children “were a consideration of equal significance (ie also a primary consideration)”. The appellant nevertheless accepted that the best interests of minor children can be outweighed by the strength or the cumulative effect of other considerations in the circumstances of the particular case.

48 As was noted by the primary judge (PJ [20]), it was not contended in Wan that the Tribunal had taken any step to give notice that it proposed to make a decision which did not accord with the principle that the best interests of minor children were a primary consideration in its decision-making process: see Wan at [15]. Further, there was no Ministerial direction in the form of Direction No 110: cf. Wan at [18]–[19]. Accordingly, the decision in Wan turned exclusively on whether the Tribunal had in fact treated the best interests of minor children as a primary consideration. The present case raises a different question.

49 For present purposes, it is unnecessary to address, let alone resolve, any question concerning the proper construction of Art 3 of the Convention. It suffices to say that any reasonable expectation based on the Convention is that the best interests of the child shall be a primary consideration in all actions concerning children, but not necessarily the only primary consideration: PJ [29], referring to Nweke v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 136 ALD 235; [2013] FCAFC 79 at 21. In other words, while the concept of a primary consideration contemplates that some priority will be given to the best interests of the child, it does not require those interests to be treated as paramount over all other considerations: see, e.g., Teoh at 289 (Mason CJ and Deane J).

50 In the present case, the exercise of the power under s 501CA of the Migration Act attracted the requirements of procedural fairness on the basis that it affected the appellant’s rights and interests: see generally Disorganized Developments Pty Ltd v South Australia (2023) 280 CLR 515 at 536–537 33; Badari v Minister for Territory Families and Urban Housing (2025) 100 ALJR 30; [2025] HCA 47 at 17. Section 501CA(3) expressly provides a person whose visa has been cancelled under s 501(3A) with an opportunity to be heard about revocation of the cancellation decision, and s 500(1)(ba) provides an entitlement to seek review by the Tribunal of a decision made by a delegate not to revoke the cancellation decision.

51 Aspects of the reasoning in Teoh have since been questioned. In particular, the concept of “legitimate expectation” has been abandoned both as a touchstone of a requirement to accord procedural fairness and as a basis for determining the content of procedural fairness requirements: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [28]–30, 61. Rather, the real question is “what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”: WZARH at [30]; see also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [33]–[34], 37, [48], [81]–[83], 105, [120]–122.

52 Nevertheless, the decision in Teoh remains authority for the following proposition: see Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 89 at [45]–48. Absent statutory or executive indications to the contrary, if an administrative decision-maker proposes to make a decision otherwise than in accordance with the principle that the best interests of the child are a primary consideration in all actions concerning children, the decision-maker must give notice to the persons affected and an opportunity to be heard against the taking of such a course: Teoh at 291–292 (Mason CJ and Deane J), 301–302 (Toohey J), 304–305 (Gaudron J); cf. at 310–319 (McHugh J); see also Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at 28.

53 The principle in Teoh is subject to the manifestation of a contrary intention by or under the relevant statute, as well as a contrary indication by executive action. Accordingly, in the present context, the terms of a written direction given by the Minister under s 499 of the Migration Act to persons or bodies having functions or powers under the Act are capable of qualifying or displacing the Teoh principle.

54 Further, the principle in Teoh extends only to the procedural protection of any expectation that an administrative decision-maker will act in accordance with the principle that the best interests of the child are a primary consideration, in that the affected person is entitled to an opportunity to be heard before the decision-maker departs from that principle.

55 Each of those qualifications is fatal to the appellant’s case. First, Direction No 110 provided clear notice of the approach that was adopted both by the delegate and by the Tribunal in exercising the power conferred by s 501CA of the Migration Act. Secondly, the Department of Home Affairs had written to the appellant on 28 June 2024, prior to the delegate’s decision, informing him of the commencement of Direction No 110 and drawing his attention to the “clarification and renewed emphasis” in relation to the following matters:

1.     the safety of the Australian Community is the highest priority of the Australian Government,

2.     the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; and

3.     the primary consideration of the protection of the Australian Community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

The appellant was advised to “read the whole of Direction No. 110 carefully as it may be relevant to any response you provide”.

56 It may be open to debate whether or to what extent the terms of Direction No 110 involve a departure from the expectation recognised in Teoh. Under ss 8(4) and 8.4 of the Direction, the best interests of minor children in Australia remain one of the “primary considerations” in making a decision under s 501CA. The “primacy” of such considerations is effectuated by s 7(2) of the Direction, which provides that “primary considerations should generally be given greater weight than the other considerations”. While this is directed to the relative weight that is “generally” to be given to primary and other (non-primary) considerations, it does not follow that the characterisation of a consideration as “primary” dictates the weight that should be given to that consideration in the circumstances of a particular case. A primary consideration might still be given moderate or low weight or significance, and a non-primary consideration might be given strong weight or significance: cf. Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545; [2018] FCA 594 at [23]–28. Within the parameters of Direction No 110, the weighing process engaged in by the decision-maker will usually involve an “instinctive” synthesis of all relevant considerations: Demir v Minister for Immigration, Citizenship and M u lticultural Affairs [2023] FCA 870 at [21]–22.

57 Section 7(3) of Direction No 110 recognises that “[o]ne or more primary considerations may outweigh other primary considerations”. Of itself, this does not envisage that the best interests of minor children in Australia would be treated as “inherently” less significant than any of the other primary considerations (cf. Wan at [32]–[33]), or would not be given “first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight” (cf. Teoh at 289).

58 However, s 7(2) of Direction No 110 expressly requires that the primary consideration of the protection of the Australian community from criminal or other serious conduct “is generally to be given greater weight than other primary considerations”, including the best interests of minor children in Australia. This is the same language that is used to give primacy to the primary considerations over other considerations. Accordingly, s 7(2) appears to establish three levels or tiers of relevant considerations, under which the protection of the Australian community has the foremost primacy, followed by the primary considerations in s 8(2) to (5), and then the other (non-primary) considerations including those addressed in s 9. As discussed above, this general direction remains subject to the particular facts and circumstances in each case.

59 In any event, to the extent that s 7(2) of Direction No 110 involves any departure from the Teoh principle, the appellant was given clear notice of the approach that was adopted by the Tribunal. As the primary judge found (PJ [41]–[47]), the Tribunal complied with Direction No 110 in reaching its decision. It was not argued that the Tribunal misunderstood or misapplied the Direction. The appellant was given an opportunity to be heard on the critical issues in the Tribunal’s decision in the light of Direction No 110. This included an opportunity to be heard as to whether, in the particular circumstances of the present case, the protection of the Australian community should be given greater weight than the best interests of minor children in Australia.

60 More generally, the Tribunal is bound to comply with written directions given by the Minister under s 499 of the Migration Act: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at 72; Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 at 65; Suleiman at 6. Accordingly, there was no scope or need for the Tribunal to give the appellant an opportunity to be heard against the application of Direction No 110.

61 In such circumstances, the Tribunal did not fail to afford procedural fairness to the appellant, and the appeal must be dismissed with costs.

| I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. |
Associate:

Dated:    24 April 2026