Background
Mark David Frank Keyte, a New Zealand citizen, arrived in Australia in December 1988 at the age of four and had lived there continuously for 36 years. In June 2014 he was convicted in the County Court of Victoria of attempting to pervert the course of justice — arising from his prevailing upon a former partner to retract a complaint of assault — and sentenced to 16 months’ imprisonment. His criminal history also included convictions for domestic violence against two partners, persistent contravention of family violence safety notices, and drug trafficking. As a result, his visa was mandatorily cancelled on 9 August 2024 under s 501(3A) of the Migration Act 1958 (Cth).
Keyte made representations to the Minister seeking revocation of the cancellation. Those representations, prepared by solicitors, invoked cl 5.2(6) of Ministerial Direction 110, which provides that Australia may afford a higher level of tolerance of criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age. The delegate declined to revoke on 7 August 2025. Keyte applied to the Administrative Review Tribunal (ART), which affirmed the delegate’s decision on 30 October 2025, finding that the applicant’s offending constituted family violence offences and serious crimes against women under cl 8.5(2), and that the expectations of the Australian community weighed strongly against revocation, notwithstanding that his ties to Australia weighed strongly in his favour.
Keyte then sought judicial review in the Federal Court under s 476A of the Migration Act, pressing two grounds: first, that the Tribunal failed to genuinely engage with his tolerance submission under cl 5.2(6); and second, that the Tribunal erred in not applying cl 5.2(6) to reduce or discount the weight given to the community-expectations consideration at cl 8.5 of the Direction.
The Court’s Holding
McElwaine J dismissed the application and ordered Keyte to pay the Minister’s costs. On the first ground, his Honour found that the Tribunal had in fact evaluated the tolerance representation. The Tribunal recorded Keyte’s arrival in Australia at age four, his 36 years of residence, his employment and voluntary work, and expressly stated at TD [115] that those matters had been taken into account. The Tribunal also noted at TD [48] that it had considered all the cl 5.2 principles and repeated that statement at TD [146] when addressing the community-expectations primary consideration. The argument that the Tribunal failed to engage with the representation was therefore not made out; the tolerance submission as formulated in the representations was not “clearly articulated” as requiring any particular structural treatment of cl 8.5, so no higher obligation arose under Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582.
On the second ground, his Honour applied the reasoning of Horan J in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 and the Full Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 and Reid v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 273. Those authorities establish that cl 5.2(6) tolerance is a framework principle that informs the overall balancing exercise; it does not mandate that a decision-maker reduce the weight assigned to the deemed community expectations under cl 8.5 as a discrete, prior step. The weight to be given to the tolerance principle in any given case is a matter for the Tribunal, and there is no structural rigidity requiring the Tribunal to revisit or expressly discount the cl 8.5 consideration in light of cl 5.2(6).
His Honour concluded that the Tribunal had, reading the reasons as a whole, taken the tolerance submission into account when assessing the strength of Keyte’s ties to Australia (which it found weighed strongly in his favour), before finding at TD [178] that those ties did not displace the heavy weight accorded to community expectations given the serious and recidivist nature of the family violence offending.
Key Takeaways
- A tolerance submission under cl 5.2(6) of Ministerial Direction 110 does not oblige the Tribunal to reduce the weight it gives to the community-expectations primary consideration under cl 8.5 as a standalone step; it is one factor in the overall balancing exercise.
- A Tribunal satisfies its obligation to “read, identify, understand and evaluate” representations (per Plaintiff M1) when it records the relevant facts and states that the cl 5.2 principles have been considered, even without explicitly revisiting those principles at every stage of its reasoning.
- A long Australian residence from a very young age is a favourable consideration that can weigh strongly for an applicant, but it does not automatically override the heavy weight that attaches to community expectations where the offending involves family violence or serious crimes against women under cl 8.5(2).
- Courts will not impose structural rigidity on the Direction’s weighing process: the Tribunal retains discretion as to how and where in its reasons it takes framework principles into account, provided the overall reasons disclose genuine engagement.
Why It Matters
This decision clarifies the interaction between the tolerance principle in cl 5.2(6) of Ministerial Direction 110 and the community-expectations primary consideration in cl 8.5, confirming the approach taken in RCLN and FYBR. Practitioners advising long-term New Zealand residents facing mandatory visa cancellation should understand that invoking cl 5.2(6) does not create a freestanding obligation on the Tribunal to discount community expectations — the tolerance factor feeds into the holistic balancing exercise, and where offending involves family violence or serious crimes against women, the Direction’s deemed community expectation is likely to carry decisive weight regardless of length of residence.
The judgment also reinforces that judicial review challenges based on alleged failure to engage with representations will face a high threshold: provided the Tribunal’s reasons, read as a whole, reflect awareness and consideration of the key facts and principles raised, courts will not characterise the reasoning as formulaic or inadequate merely because it does not explicitly trace each submission through every stage of the analysis.