Bharat Bahadur KC v Minister for Immigration and Multicultural Affairs - Visa Cancellation Judicial Review Dismissed

Original Word Document (95.5 KB) Federal Court of Australia

KC v Minister for Immigration and Multicultural Affairs [2026] FCA 514

| Review of: | KC and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 358 (8 April 2025) |

| File number: | VID 585 of 2025 |

| Judgment of: | ROFE J |

| Date of judgment: | 24 April 2026 |

| Catchwords: | MIGRATION – application for judicial review of decision of the Administrative Review Tribunal to affirm decision of delegate of the Minister not to revoke cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth) – whether the Tribunal misapplied para 8.3 of Ministerial Direction 110 – whether the Tribunal failed to attribute weight to the applicant’s positive contribution to the community – whether the Tribunal failed to consider the impact on the applicant if removed from his wife and daughter – whether the Tribunal impermissibly speculated about the cause of the applicant’s traffic infringement fines – whether a discernible error was material – held: application dismissed |

| Legislation: | Migration Act 1958 (Cth) |

| Cases cited: | Ali v Minister for Home Affairs [2018] FCA 1895

Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents (2025) 311 FCR 493

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

Bugg v Day (1949) 79 CLR 442

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

CRU18 v Minister for Home Affairs (2020) 277 FCR 493

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21

EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265

Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148

KC and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 358

Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84

Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 426 ALR 587

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

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

YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49 |

| Division: | General Division |

| Registry: | Victoria |

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

| Number of paragraphs: | 64 |

| Date of last submissions: | Applicant: 5 September 2025

First Respondent: 20 September 2025 |

| Date of hearing: | 3 December 2025 |

| Counsel for the Applicant: | G Costello KC with M Kenneally |

| Solicitor for the Applicant: | Northam Lawyers |

| Counsel for the First Respondent: | J Barrington |

| Solicitor for the First Respondent: | HWL Ebsworth Lawyers |

| Counsel for the Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS

| VID 585 of 2025 |

| BETWEEN: | BHARAT BAHADUR KC

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | ROFE J |
| DATE OF ORDER: | 24 APRIL 2026 |
THE COURT ORDERS THAT:

1. The amended originating application for review of a migration decision dated 5 September 2025 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding, to be taxed in absence of an agreement.

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

REASONS FOR JUDGMENT

ROFE J:

1. Introduction

1 By an amended originating application for review of a migration decision dated 5 September 2025, the applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 8 April 2025: KC and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 358 (D). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth).

2 I heard this matter on 3 December 2025 and having had regard to the evidence and submissions before the Court, I consider that the application should be dismissed with costs.

1. Evidence

3 In support of his application, the applicant relies on two affidavits sworn by Mark Edward Northam, a solicitor of Northam Lawyers, which is the firm on record for the applicant, dated 9 May and 5 September 2025.

4 The Minister relies on the affidavit of Tegan Jane Weir, a solicitor of HWL Ebsworth Lawyers, which is the firm on record for the Minister, dated 18 September 2025.

5 The applicant also sought to tender an additional item of evidence, being a 30-second audio extract from the hearing before the Tribunal on 26 March 2025.

1. Background

6 The applicant is a 43-year-old citizen of Nepal, who arrived in Australia on 8 March 2008. Shortly after arriving, he was granted a skilled (subclass 189) visa as a secondary visa holder to his wife: D [2]. The applicant’s wife, who is a mental health nurse in the Australian hospital system, and daughter, are both Australian citizens.

7 In around 2009, the applicant started his own import and export business. By his evidence before the Tribunal, the applicant maintained that he paid his taxes until 2016 and was a productive member of the community: D [113]. He supported newly arrived Nepalese migrants with employment and housing and assisted in organising events for the Nepalese community in Australia and raising funds for charitable causes in Australia to send back to Nepal: D [108]–[110]. Before the Tribunal, the applicant’s wife described his involvement in social work which included sponsoring children at an orphanage in Nepal and supporting newly arrived Nepalese migrants in Australia with employment. She said that the applicant never had any savings because he was always assisting others.

8 There was expert psychological opinion before the Tribunal expressing that the applicant had a gambling addiction at the time of his offending: D [47]. Between 2014 and 2015, the applicant’s gambling addiction is said to have escalated. During this period, he began offering remittance services to members of the Nepalese community. On some occasions, he offered to collect debts, but more commonly he undertook to remit monies on behalf of clients to their families in Nepal: D [28]. Although the applicant admitted to the misuse of funds in 2016, his first deception offences did not occur until February 2018. The applicant subsequently committed a series of fraud offences, through his remittance service, against members of the Nepalese community. The offending for which he was ultimately convicted commenced in or around late 2018 and continued until his incarceration on 30 July 2020.

9 On 21 March 2022, the applicant pled guilty and was convicted of 20 charges of obtaining property by deception in the County Court of Victoria. The applicant was on bail at the time of most of his offending for another charge of obtaining property by deception which was subsequently dealt with summarily: D [3]. The applicant was thereafter sentenced to an aggregate period of 46 months (three years and 10 months’ imprisonment) with a non-parole period of 30 months (two and a half years): D [4].

10 On 12 April 2022, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on account of his substantial criminal record. At that time, the applicant was serving his sentence on a full-time basis in a custodial institution for an offence against the law of the State of Victoria. He subsequently made representations seeking to have that cancellation decision revoked on 2 May 2022.

11 On 14 January 2025, a delegate refused to revoke the cancellation decision. The applicant subsequently applied to the Tribunal for merits review of the delegate’s decision. The Tribunal held a hearing on 26 and 27 March 2025, where the applicant was represented by experienced counsel.

12 On 8 April 2025, the Tribunal affirmed the delegate’s decision, providing written reasons in support of its decision on 10 April 2025.

13 On 12 May 2025, the applicant applied to this Court for judicial review of the Tribunal’s decision.

14 The Tribunal filed a submitting notice in this proceeding on 30 June 2025, reserving its right to be heard on the question of costs.

1. Legal framework

15 The Tribunal set out the applicable legislative framework from D [7]–[15], which I adopt here.

16 Relevantly, s 501(3A) of the Act provides:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

…

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

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

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

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

(b)    the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

17 Section 501(7)(c) of the Act expresses that a person is considered to have a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more, and this applies no differently for a sentence imposed for two or more offences, as provided by s 5AB: D [8].

18 Where a visa has been cancelled pursuant to s 501(3A) of the Act, the Minister is obliged under s 501CA(3) to give that person a written notice inviting them to make representations about revocation of the original decision. Where representations are made pursuant to the invitation, under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked: D [9].

19 Section 499 empowers the Minister with the discretion to give directions in performing their functions and exercising their powers under the Act. The applicable direction at the time of the Tribunal’s decision was Ministerial Direction No. 110 entitled “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (the Direction): D [1], [11].

1. Grounds of review

20 In support of his application, the applicant advanced the following five grounds of review:

Ground 1: The Tribunal’s reasons for rejecting the applicant’s evidence of contributing to the Nepalese community was irrational or unreasonable;

Ground 2: The Tribunal failed to have regard to a mandatory consideration of his ties to his daughter and wife;

Ground 3: The Tribunal erred by reducing the weight given to the applicant’s time spent in contributing positively to the community due to subsequent offending and conduct;

Ground 4: The Tribunal made a finding for which there was no rational and probative basis in relation to traffic fines; and

Ground 5: The Tribunal denied the applicant procedural fairness in relation to the expectation of the Australian community.

21 Ground 5 was abandoned at the hearing. I will deal with the remaining grounds in turn.

5.1 Grounds 1 and 3

22 The applicant’s first and third grounds of review relate to the Tribunal’s application of para 8.3 of the Direction, which addresses the strength, nature, and duration of his ties to Australia, in assessing his contributions to the Australian community, including the Nepalese diaspora within the country.

23 Paragraph 8.3 of the Direction is one of the five primary considerations to be taken into account by a decision-maker when making a decision under ss 501(1), 501(2) or 501CA(4) of the Act. It relevantly provides the following:

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.

24 With respect to the applicant’s first ground of review, the applicant contends that the Tribunal erred in its application of para 8.3 by failing to give appropriate weight to the evidence before it regarding his positive contributions to, and ties with, the Australian community. He says that the error is apparent at D [111], where the Tribunal stated that:

In the absence of corroborating evidence, I am not satisfied that Mr KC provided assistance to newly arrived Nepalese persons in any philanthropic way. It would be inappropriate to accept Mr KC’s evidence in this regard without corroboration given the nature of his offending.

25 The applicant submits that there was extensive evidence before the Tribunal demonstrating his positive engagement with the Australian community, including that:

(a) prior to his offending between 2018 and 2020, and prior to the escalation of his gambling addiction, he operated a business that paid taxes and thereby made a financial contribution to the Australian community;

(b) between 2009 and 2017, he volunteered to assist over 100 newly arrived Nepalese migrants and students with matters such as housing, employment, airport pick-ups and temporary accommodation at no cost;

(c) he sold Nepalese cultural products and handicrafts, including singing bowls, jewellery and traditional costumes; and

(d) he participated in cultural performances that were not connected with his business activities but were undertaken as a contribution to the Nepalese community, including leading cultural items and performing singing bowls at various community festivals.

26 The applicant also relies on the evidence given by his wife before the Tribunal concerning his character, pointing in particular to the following exchange between the Senior Member and his wife:

SENIOR MEMBER: […] You were present when the sentencing judge described your husband’s conduct in that way. What did you make of that in terms of your experience of him earlier in the marriage? How did you reconcile that conduct with what you thought you knew about him?

MS ADHIKARI: As I said, I don’t know on what basis, like just did it. Of course, it’s on the evidence based whatever offence he has done that one. To me as a husband and to my daughter as a father, he has never done that. To me, it was very hard to accept it. He used to do a lot of social work. Back home, when I first met him, there was an orphanage house. I forgot the name. He used to sponsor a few kids in that place. I always used to really tell him, “You focus on yourself and your family, rather than really giving money out to the people.” There was no saving for him. He used to really offer things to people, support the family member.

When he first even came to Australia, he started his job as a cleaner. He made few network, few connection there. He has supported few Nepalese newcomers who came to Australia to find a job. That was out of his character. It was very difficult for me to accept it.

27 On the face of this body of evidence, the applicant submits that the Tribunal’s findings concerning his contributions were “irrational”. He argues that there was corroborative evidence from his wife that he had assisted newly arrived Nepalese persons in a philanthropic manner, and he himself had given candid evidence about his involvement. He further notes that the Minister did not challenge this evidence in cross-examination.

28 In these circumstances, the applicant submits that the Tribunal impermissibly disregarded the corroborating evidence of his wife and instead engaged in an illogical or unwarranted evaluative judgment—one that appeared to reflect a moral value judgment rather than a rational assessment of the evidence. Senior counsel for the applicant further submitted that the Tribunal’s reasoning reflects an arbitrary value judgment, as illustrated by the following passage at D [113]:

Mr KC did not arrive in Australia as a young child, but I accept that it cannot be said that he began offending soon after arriving in Australia. I accept there were a number of years of employment and apparently successful business operation before the offending began. However, as mentioned above, I have limited evidence of positive contribution to the Australian community. What limited evidence there is suggesting a prior contribution to the Nepalese community in Australia is uncorroborated and would, in any event be greatly reduced in weight given the nature of his offending. Similarly, what limited contribution might be identified from Mr KC’s successful operation of a business must be reduced given his failure to comply with taxation obligations resulting in the substantial indebtedness to the Australian Taxation Office he disclosed in his evidence.

29 To the contrary, the Minister contends that the Tribunal’s approach to the evidence in considering para 8.3 of the Directions was not irrational. A high bar must be met in order for the applicant to satisfy this Court that the Tribunal’s approach was infected by irrationality. In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 426 ALR 587, Steward J explained at [27]:

[…] The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not – in any way – make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

30 The Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 further explained the significant hurdle that the applicant must overcome with the following at 34:

The task in assessing illogicality is not an exercise in logical dialectic. “ Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

(Emphasis added.)

31 Even if it was to be assumed that the Tribunal’s impugned finding was irrational, the Minister submits that the applicant cannot demonstrate that the finding is one which results in a characterisation of the overall decision as illogical. In the Minister’s view, the finding was simply not critical or material to the end result: see CRU18 v Minister for Home Affairs (2020) 277 FCR 493 at [35]–39.

32 As to actual ties with the community, the Minister emphasises that the applicant had conceded that he was “…estranged from the Nepali community”: at D [110]. As such, any such tie that the applicant was attempting to establish was historical, and it is clear beyond doubt to have been severed. Moreover, the Minister maintains that the Tribunal did indeed have regard to the applicant’s evidence and chose to attribute it limited weight, stressing the following phrases within D [113]:

Mr KC did not arrive in Australia as a young child, but I accept that it cannot be said that he began offending soon after arriving in Australia. I accept there were a number of years of employment and apparently successful business operation before the offending began. However, as mentioned above, I have limited evidence of positive contribution to the Australian community. What limited evidence there is suggesting a prior contribution to the Nepalese community in Australia is uncorroborated and would, in any event be greatly reduced in weight given the nature of his offending …

(Emphasis added by the Minister.)

33 The Minister asserts that the sections emphasised above indicate that the Tribunal considered the evidence about the applicant’s contributions to the Australian community was “limited” and would, even if it had been accepted, be “greatly reduced in weight given the nature of his offending”. The Minister properly puts that the Tribunal’s conclusion to accord reduced weight to the limited evidence of his historical contribution to the Nepalese community in light of his later offending against that same community is not illogical or unreasonable. As such, there was no illogicality on the Tribunal’s part as it was open for the Tribunal to not be satisfied that the applicant provided assistance to newly arrived Nepalese persons in any philanthropic way. Here, the Tribunal’s finding was one of non-satisfaction, and the Tribunal was not required to have rebutting evidence before holding that the applicant’s assertion was not accepted: see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 65, citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 (per Heerey J). Moreover, the Minister maintains that the applicant’s prior deception-based convictions were of such a nature as to tend to logically and rationally weaken the Tribunal’s confidence in the applicant’s trustworthiness as a witness.

34 The Minister acknowledges that the Tribunal was not required to uncritically accept the assertion that the applicant was engaged in philanthropic assistance—that is, activities undertaken for benevolent reasons—for over 100 members of the Nepalese community, in circumstances where he was later convicted for fraudulent and deceitful conduct in respect of that same community. It has long been accepted that prior convictions, especially prior convictions for fraudulent or deceitful acts, are probative of a witness’s credibility: see Bugg v Day (1949) 79 CLR 442.

35 Importantly, the Minister submits that this is not a standalone consideration. The Tribunal is not required to give separate consideration and weight to whether at various points in time the applicant performed good deeds or made positive contributions within the community. To that end, the Minister relies on the following observations of O’Bryan J in YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49, where his Honour observed the following at [56] in the context of an earlier Ministerial direction with a cognate provision to para 8.3:

[…] The consideration described in para 8.3(4)(i), the circumstance that a non-citizen has been ordinarily resident in Australia during and since their formative years, only arises as a mandatory consideration as part of the assessment of other ties under para 8.3(4). It is a consideration that bears upon the weight to be given to the other ties. It is not a standalone consideration. In the absence of representations or evidence concerning other ties, the Tribunal was not required to give a separate weighting to that consideration. Further and in any event, the Tribunal’s reasons expressly note that the applicant arrived in Australia when he was 15 years old and has lived in Australia ever since. It cannot be said that that fact was overlooked by the Tribunal in its assessment.

(Emphasis added.)

36 In EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155, Hill J summarised at [35]–[36] the relevant authorities concerning what is required in terms of the importance of the fact in order for it to ground jurisdictional error. His Honour explained at [36] that “… jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result”. A “critical step” required where a ground of illogicality or irrationality is advanced is one of materiality.

37 With respect to Ground 3, the Minister submits that no error arises from D [113]. The Tribunal’s approach is rational and entirely consistent with its evaluative task. In assessing the strength, nature, and duration of the applicant’s ties to the Australian community, it was legitimate for the Tribunal to consider relevant later conduct that may diminish the practical or moral weight of earlier contributions. In other words, the Minister advances that the Tribunal is required to take a holistic view of the ties: Ali v Minister for Home Affairs [2018] FCA 1895 at 23. The Minister aptly notes that this approach is neither a misconstruction of the Direction nor an impermissible double-counting for the Tribunal; while the applicant had previously contributed positively to the community, subsequent offending against that same community detracts from the strength or character of those ties. In particular, the Tribunal was considering the applicant’s ties to the Nepalese community. In this context, the Minister maintains that it was rational for the Tribunal to conclude that, although the applicant may have made positive historical contributions, later offending against that same community or in relation to tax obligations reduces the weight that can be attributed to those ties: BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at 39.

38 This approach does not replicate the type of impermissible double-counting identified by the Full Court in Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148, but reflects the proper evaluative exercise of assessing the applicant’s ties in a holistic and proportionate manner.

39 As such, I consider that Grounds 1 and 3 do not disclose any error.

5.2 Ground 2

40 By his second ground of review, the applicant contends that the Tribunal erred by failing to have proper regard to his ties with his wife and daughter. The alleged error concerns the Tribunal’s treatment of para 8.3(2)(a) (“the residency sub-consideration ”) and para 8.3(2)(b) of the Direction, both of which are mandatory considerations.

41 In advancing this ground, the applicant relies on the observations in Siale v Minister for Immigration and Citizenship [2025] FCA 608, where SC Derrington J held at [61] that consideration of para 8.3(2)(b) “…requires an assessment of the strength, duration and nature of any family or social links from the perspective of a non-citizen”. The applicant submits that the Tribunal was required to evaluate the significance of his family relationships to him: that is, the emotional, practical and relational importance of his role as a husband and father.

42 The applicant argues that the Tribunal instead considered only the impact of his removal on his wife and daughter, without assessing what those relationships meant to him personally. This, the applicant submits, constituted a failure to consider a mandatory relevant consideration and a misconstruction of para 8.3(2)(b), which may have materially affected the weight given to the primary consideration and thus the outcome.

43 Further, the applicant accepts that the Tribunal demonstrated an awareness of the importance of these relationships and the underlying factual circumstances. However, he argues that para 8.3 required the Tribunal to apply those facts to the mandatory evaluative task—namely, to assess the strength, nature and duration of those ties from his perspective—and then determine the weight they should be given. In the applicant’s view, that task was not performed, and mere awareness of the facts on the face of the decision record alone cannot support an inference that the required evaluative step was undertaken.

44 The applicant maintains that the concept of a “tie” necessarily involves understanding the relationship from both sides. On that basis, the strength, nature and duration of a family relationship cannot be properly assessed without considering its significance to the non-citizen. The statutory task is said to require a separate look at the strength, nature and duration of those ties and giving them weight in and of themselves, independent of any impact on the person’s best interests.

45 The applicant submits that the Tribunal’s improper weighting exercise is apparent at D [77] where the Tribunal stated the following:

I recognise also that there are potentially important protective factors to drive Mr KC’s motivation to avoid further offending. Mr KC’s motivation to re-join his wife and daughter cannot be understated, and indeed it is a clear theme of his interactions with prison counsellors and representations to the Department and the Tribunal. It was a defining feature of his oral evidence to the Tribunal.

46 Here, the impugned error identified is the Tribunal’s acknowledgement of the applicant’s relationship with his wife and child in relation to how he is likely to cope in the future, the consequences, but not for the purpose of giving this matter weight as something that tied the applicant to Australia.

47 In Okoh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84, Derrington J at [31] explored the idea of the residency sub-consideration as a counterweight that was “… not to be held against the applicant by the decision-maker and proffered as an independent ground weighing against the ascertainment of there being another reason why the cancellation should be revoked”. The applicant relies on his Honour’s observations to argue that this reading is consistent with the tolerance principle, such that residency alone can be considered a tie.

48 The Minister rejects the contention that the Tribunal failed to have regard to the applicant’s family ties. The Minister refers to a number of passages in the reasons where the Tribunal expressly acknowledged the impact on the applicant of separation from his wife and daughter, including:

(a) at D [77], where the Tribunal recorded that the “defining feature” of the applicant’s oral evidence was his “…motivation to re-join his wife and daughter”;

(b) at D [184], where the Tribunal observed that the applicant “…will endure extreme hardship if removed from Australia” and “will not have access to critical familial support…”; and

(c) at D [192], where the Tribunal recognised that removal “…will serve as a psycho-emotional shock…”, and that separation from his family would impact his mental health. The Tribunal expressly stated that this was taken into account in its “overall evaluative task”.

49 The Minister submits that these findings demonstrate that the Tribunal was conscious of, and took into account, the consequences for the applicant of his removal from Australia. The Minister relies on Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 280 CLR 265, where the High Court observed at 50 that the sequential structure of written reasons does not justify an inference that a decision-maker has compartmentalised considerations or ignored earlier or later findings. The Minister submits that, similarly here, the Tribunal’s structured reasons do not establish the error alleged.

50 As to the applicant’s reliance on Siale for the construction of para 8.3(2)(b) of the Direction, the Minister respectfully submits that this reading of the consideration is “plainly wrong”, in the sense discussed by the Full Court in Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents (2025) 311 FCR 493 at [113]–114, and thus should not be followed by the Court here.

51 The Minister accepts that para 8.3(1) 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. However, the Minister goes on to say that para 8.3(2) then concerns “any other ties” that the non-citizen has to Australia: YNPX at [56]. Even if para 8.3(2) allowed for a consideration of the impact on removal on the non-citizen, the Minister submits that it would necessarily be confined to the impact on the loss of the non-citizen of ties other than his immediate family members. The Minister contends that in having regard to para 8.3(2)(b), the decision needs to be read in the chapeau of para 8.3(2) where the decision-maker is directed to have regard to “the strength, nature and duration of any other ties that the non-citizen has to the Australian community” (emphasis added). In the Minister’s submission, “other tie” could include any family or social tie, and read in context, any other tie other than immediate family. The reference to “family” here should not be construed as otiose. Any apparent incongruency in that interpretation, however, rather suggests that para 8.3(2) is not concerned with the impact on the non-citizen at all.

52 The applicant maintains that he does not suggest any departure from Ismail. Rather, as noted at [49] of Ismail, the issue is the proper assessment of weight to a mandatory primary consideration. The applicant’s complaint is that the Tribunal did not correctly undertake the evaluative task required by para 8.3(2)(b). This was not a discretionary “other consideration” but a mandatory primary consideration that had to be assessed according to the terms of the Direction.

53 I do not consider that the paragraph of Siale on which the applicant relies supports his proposition. At [62], SC Derrington J stated:

Had the Tribunal considered separately the impact of the applicant’s removal on his minor siblings, being immediate family members with a right to remain in Australia indefinitely, as required by paragraph 8.3(1), a different decision could realistically have resulted. Likewise: LPDT at [16]. Similarly, had the Tribunal considered the strength, nature and duration of the applicant’s ties with “the other relevant minor children”, as required by paragraph 8.3(2), a different decision could realistically have resulted.

54 The “other relevant minor children” to which her Honour referred were the applicant’s nieces and nephews. They were not included in the immediate family consideration required by para 8.3(1) and, particularly in the last sentence of [62], her Honour was considering the impact of the removal of the applicant on those non-immediate family members—the nieces and nephews. It is apparent that her Honour was not suggesting that the relevant consideration required by para 8.3(2) was the impact on the applicant of his removal from his family.

55 Having regard to the parties’ submissions and the Tribunal’s reasons, it is clear that the Tribunal was conscious of the applicant’s family circumstances and the hardship to the applicant that removal would entail. By way of illustration, the alleged error identified by the applicant at D [77] relates to the Tribunal’s treatment of his relationship with his wife and child, specifically that the Tribunal acknowledged the consequences of separation and the likely impact on the applicant but did not expressly quantify this as a factor which tied him to Australia. While the applicant contends that the Tribunal failed to give proper weight to these familial ties, it is not necessary for a decision record to explicitly recite “consideration” terminology to demonstrate that a primary consideration has been addressed. The Tribunal’s reasoning, read in context, shows that the applicant’s family relationships were fully recognised and formed part of the overall evaluative task. Accordingly, the Tribunal’s approach cannot be characterised as an error.

56 On the material before the Court, there is no basis to conclude that the Tribunal failed to perform the evaluative step required by para 8.3(2)(b). While the applicant contends that the Tribunal did not assess the significance of the relationships from his perspective, the references throughout the decision indicate that the Tribunal was cognisant of, and gave weight to, the applicant’s ties to his immediate family. The Tribunal’s reasons, read as a whole, show that the primary consideration mandated by para 8.3 was properly addressed. Accordingly, Ground 2 does not disclose any error.

5.3 Ground 4

57 By his fourth ground of review, the applicant contends that the Tribunal reasoned irrationally or unreasonably when weighing his traffic fines. At D [39], the Tribunal found:

Finally, in the course of his oral evidence, Mr KC referred in passing to approximately $9000 in traffic fines being waived by Victorian authorities when he was imprisoned. Mr KC said that these fines had been incurred largely through his use of mobile telephones while driving. Also, Mr KC mentioned that he had accrued approximately $80,000 in unpaid taxation liabilities and penalties since approximately 2016. Although this evidence is before me through Mr KC’s oral evidence, and I take it into account, it is not the subject of documentary evidence, other than correspondence confirming the waiving of an unspecified amount of outstanding fines, and the particulars are no more detailed than Mr KC’s oral evidence. The information Mr KC provided in terms of his other conduct in Australia in accruing substantial fines over what must be incorrigible poor and dangerous traffic conduct given the amount he says was waived, and disregard for his obligations to the community to pay his taxes reflects very poorly on Mr KC.

(Emphasis added.)

58 The applicant submits that the Tribunal’s inference, that the fines must have reflected “incorrigible poor and dangerous traffic conduct” was merely speculative. He argues that the Tribunal impermissibly inferred that the quantum of fines necessarily implied dangerous driving. Fines of that magnitude, he speculates, may result from cumulative minor infringements or the accrual of penalties for non- or late payment, rather than from inherently dangerous conduct. In those circumstances, the applicant contends that the Tribunal’s conclusion was unsupported by probative material and was legally unreasonable or irrational.

59 The applicant argues that, in the absence of any evidence identifying the underlying infringements, the Tribunal’s selection of the more adverse inference was not a rational exercise but an arbitrary one, given that the only material before it was the quantum of the fines and the applicant’s limited oral explanation. Relevantly, the applicant’s oral explanation before the Tribunal regarding his traffic fines was confined to the following exchange between himself and the Minister’s solicitor, Ms Weir, during cross-examination on the first day of the Tribunal hearing:

MS. WEIR: “Also, when I got sentenced, I also contacted Victoria Fines myself regarding some of the fines, and these were waived.” What fines did you have with--

MR KC: When my charges is finalized with the Heidelberg Court, I got $2,000 fine for that one. Then I, had another, I think, $9,000 something fines. That's my driving fines, my license, issuing fines, all those. All those, the Victoria Fines, they waived.

Even from the Anglicare.

MS. WEIR: Just going back, Mr KC. You had $9,000 worth of driving fines. Were they for traffic infringements?

MR KC: Yes. Trafficking and phone. Yes. Must have been phone, I think.

MS. WEIR: What do you mean by “must have been phone?”

MR KC: Phone when you’re driving--

MS. WEIR: You just said $9,000-- Okay. There were also traffic infringements for driving whilst you had a phone in your hand. Is that right?

MR KC: Yes. Yes.

MS. WEIR: Phone, and when I say “traffic,” is it your understanding that it’s for speeding?

MR KC: I don't think there’s a speeding one, but I'm not sure. Most of the time, police catch me. I was driving and my phone was in another hand, in here. In my--

[crosstalk]

MS. WEIR: Did you lose your license?

MR KC: In Sydney, I lose two points, but when I came to Victoria, no, I didn’t lose the license. I didn’t lose the license.

MS. WEIR: You didn’t renew?

MR KC: No. I won't lose my license. I lose I think couple points, but I haven't lose [sic] my license.

60 At 4.40 pm on 2 December 2025, a day prior to the hearing before this Court, the applicant’s solicitor emailed my chambers seeking, with the Minister’s consent, to tender a 30-second audio extract of the exchange outlined above. The cover email explained that the audio concerned the phrase “I lose two points”, and that the recording was unclear. It was said that, as the accuracy of that word might be relevant to Ground 4, it was preferable for the Court to listen to the audio. During oral submissions, junior counsel for the applicant addressed the audio. Mr Kenneally noted that the word recorded as “two” on the transcript could not be clearly heard. He stated that while the applicant’s legal team had initially believed the word to be “two”, the Minister’s representatives may have understood it to be “12”. He submitted that the applicant’s case on Ground 4 did not turn on the precise word, but that the matter was disclosed to the Court in fairness. The Minister did not specifically address the recording. Having listened to the extract, I consider that the word is “two”.

61 In response to Ground 4, the Minister submits that the Tribunal was entitled to conclude that the sheer size of the fines reflected “incorrigible poor and dangerous traffic conduct” given the significant quantum and the absence of evidence from the applicant suggesting that the amount had resulted primarily from penalties for unpaid fines rather than from the offending itself.

62 The Minister further submits that it was rational to characterise driving while using a mobile phone as dangerous conduct, and repeated conduct particularly in circumstances where the applicant accepted that police “most of the time” caught him engaging in that behaviour—suggesting that there were times when he was not caught. The Minister contends that the Tribunal’s task was evaluative, and that significant latitude is afforded to decision-makers undertaking such assessments.

63 I consider that the applicant’s Ground 4 arguments stray into merits review. The fact that multiple other inferences might have been drawn—for example, as the applicant contends, that the fines might have resulted from “cumulative minor fines”—does not make the Tribunal’s conclusion irrational in the relevant sense. The evidence before the Tribunal, given by the applicant, provided a rational basis for the Tribunal’s conclusion. It was open to the Tribunal to describe the applicant’s conduct as incorrigible, in the sense of incapable of being corrected. Further, it is not irrational for the Tribunal to describe driving while using a phone as “poor and dangerous traffic conduct”. If the applicant had wanted to give evidence that the quantum of the fines was because of a failure to pay, he had the opportunity to do so at the Tribunal hearing. Accordingly, Ground 4 does not disclose any error.

1. Conclusion

64 For the reasons above, the application is dismissed with costs.

| I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. |
Associate:

Dated: 24 April 2026