Federal Court: June 2026

MIGRATION – cancellation of applicant’s visa – failure to take into account known views of affected children – whether cancellation in best interests of each affected child – consideration implicit from reasons as a whole.

In Sumeo v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 563, the Federal Court of Australia allowed an application for judicial review of a decision of the Administrative Review Tribunal affirming the cancellation of the applicant’s Subclass 444 Special Category visa under s 501(2) of the Migration Act 1958 (Cth).

The Court held that the Tribunal committed jurisdictional error by failing to consider a mandatory relevant consideration under Direction No 110, namely the known views of several affected children.

Background

The applicant was a New Zealand citizen who arrived in Australia in 1993 at the age of 15 and was granted a Subclass 444 visa in 1994. He had lived in Australia for decades and had extensive family connections including a wife (‘Ms RS’), biological children, stepchildren, siblings and extended relatives. He also had a long history of criminal offending beginning in 1997. That offending included serious violence and repeated domestic violence against former and current partners. He had been warned in 2009 that further offending might result in visa cancellation. Despite that warning and later notices that cancellation was being considered, he was convicted of a series of domestic violence-related offences between 2014-2025, including those involving Ms RS (at [8]–[14]).

On 12 May 2025, the delegate of the Minister cancelled his visa under s 501(2) on the basis that he did not pass the character test (at [2] and [15]). On 22 July 2025, the Administrative Review Tribunal (‘the ART’) affirmed that decision .

The applicant then sought judicial review in the Federal Court on five grounds (at [4]):

1. The Tribunal failed to take into account a mandatory relevant consideration, namely the known views of children affected by the decision.
2. The Tribunal constructively failed to comply with a statutory condition governing its decision-making by not determining whether cancellation was in the best interests of each affected child.
3. The Tribunal failed to take into account a mandatory relevant consideration, namely the nature of the harm caused by the applicant’s recent family violence and the nature of the harm if that conduct were repeated.
4. The Tribunal constructively failed to comply with a statutory condition governing its decision-making by not properly considering the strength, nature and duration of the applicant’s ties to Australia.
5. The Tribunal constructively failed to make its decision in accordance with Direction 110.

For the reasons that follow, the Court upheld Grounds 1 and 5 and dismissed Grounds 2, 3 and 4.

Ground 1

Shariff J stated that the Tribunal was plainly required to comply with Direction 110. Direction 110 made the best interests of minor children in Australia affected by the decision a primary consideration. Paragraph 8.4(4)(f) expressly required the Tribunal to consider, where relevant, ‘any known views of the child’, giving those views due weight according to age and maturity (at [17]). It was common ground that the applicant and Ms RS have eight children between them.

His Honour observed that the evidence before the Tribunal included a letter from Child A which was in the hearing book and separate handwritten letters from Child B, Child C and Child D tendered as Exhibit 10 in a bundle entitled ‘Applicant’s Additional Evidence (Character References)’. Those letters were supportive of the applicant remaining in Australia. They described his positive impact on the children and family including emotional, financial and practical support. They also expressed concern about the effect of deportation on the children, siblings and household. One child said the family would be ‘devastated’; child D referred to the ‘big toll’ the applicant’s absence would have on a younger sibling (at [21]).

Shariff J held that, although the Tribunal identified the affected children and summarised their circumstances, it expressly referred only to Child A’s letter but did not engage with the letters from Child B, Child C or Child D beyond a general earlier reference to ‘various character references’ in Exhibit 10. While accepting the general principle that a decision-maker need not mention every piece of evidence, his Honour held that paragraph 8.4(4)(f) of Direction 110 made the known views of affected children a mandatory and centrally relevant consideration (at [39]). The letters from Child B, Child C and Child D were not mere character references, they directly addressed the applicant’s role in their lives, his positive influence on the family, and the impact his deportation would have on them. The Tribunal’s discussion of the children was otherwise formulaic and did not address those views (at [40]). In those circumstances, Shariff J inferred that the Tribunal had not considered them at all, describing it as ‘unthinkable’ that such prominent material would not have been mentioned if it had been considered. Ground 1 was therefore made out, and the Minister conceded the error was material (at [43]).

Ground 2

The applicant argued that the Tribunal had constructively failed to determine whether cancellation was in the best interests of each affected child, as required by paragraphs 8.4(1) and 8.4(3) (at [44]). Shariff J held that the required determination may be implicit rather than express, referring to authorities including Stamenkovic v Minister for Immigration and Citizenship [2025] FCAFC 157, Minister for Immigration, Citizenship and Multicultural Affairs v RGKY [2022] FCAFC 177 at [181], Minister for Home Affairs v NBCM [2019] FCAFC 199 at [25], Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 610 and Titoa v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 163 (at [47]). Although the Tribunal erred in failing to address the known views of three children, it had nevertheless identified the affected children, considered their individual circumstances, dealt with the practical consequences of removal, and assessed whether the applicant was likely to have a positive or negative impact on them (at [48]). From the reasons as a whole, it was implicit that the Tribunal considered it would be in each child’s interests for the applicant to remain, but that this consideration only moderately weighed against cancellation because of countervailing concerns about his conduct and risk of reoffending. That was sufficient to defeat Ground 2 (at [50]).

Ground 3

The applicant submitted that the Tribunal had not properly considered the nature of the harm caused by his family violence and the nature of the harm likely to result if it were repeated, contrary to paragraphs 8.1(2)(a), 8.1.1(1)(d) and 8.1.2(2)(a) (at [51]). He contended that the Tribunal treated the offending as serious simply because it was family violence and failed to examine the actual seriousness of the more recent conduct or its concrete effects on Ms RS and the children (at [53]–[54]).

Shariff J rejected that submission. His Honour considered that the Tribunal’s reasons, read fairly and as a whole, disclosed a detailed and methodical assessment of the applicant’s offending, its seriousness, its impact on victims and family members, and the future risk to the community (at [56]). The Tribunal had considered his lengthy offending history, repeated violence against two successive partners, the fact that some offending occurred in the presence of children, the cumulative seriousness of the conduct, his repeated offending despite warnings, AVOs, bonds, community orders and the prospect of migration consequences, and his continuing anger management issues (at [57]–[63]). It also considered the recent 30 June 2025 property damage incident and the distress it caused. His Honour held that the Tribunal plainly did consider the nature and seriousness of the harm suffered by Ms RS and the children and did not merely assume seriousness because the conduct was labelled family violence (at [68]). The Tribunal’s reference to ‘physical’ damage was not erroneous when read in context, given the common assault offences and the incidents involving violence in the presence of children (at [69]). Therefore, Ground 3 was not established.

Ground 4

This ground concerned paragraph 8.3 of Direction 110, requiring consideration of the strength, nature and duration of the applicant’s ties to Australia. The applicant argued that the Tribunal failed to consider an important aspect of his ties from his own perspective: namely, his limited literacy and dependence on Ms RS for assistance with forms and daily administration. He relied on decisions such as Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [52] and [61] and Brown v Minister for Immigration and Citizenship [2026] FCA 323, which distinguished between the impact of removal on family members under paragraph 8.3(1) and the non-citizen’s own ties to Australia under paragraph 8.3(2) (at [74]–[76]).

Shariff J accepted that paragraph 8.3(2) focuses on the applicant’s ties to the Australian community from his perspective. But his Honour held that the Tribunal had adequately considered those ties (at [77]). The Tribunal found that he had numerous close family members in Australia, including Ms RS, children, stepchildren and extended family, and expressly concluded that he ‘undoubtedly has many strong connections to the Australian community’. It also considered evidence that he had spent lengthy periods away from the family for work, which reduced the weight to be given to those ties, but still found that the consideration weighed in his favour, albeit diminished by his negative impact on the Australian community over more than two decades (at [79]).

As to literacy, the Tribunal had not ignored the issue. It considered his poor literacy skills and claimed intellectual disability under the separate heading dealing with impediments if removed to New Zealand under paragraph 9.2 (at [81]). It accepted that those matters would add to the difficulty of readjustment, but found that support services, including literacy support, would be available to him in New Zealand. Shariff J held that, read fairly and as a whole, the reasons showed that the Tribunal had considered the applicant’s ties to Australia from his perspective at a level of generality that necessarily encompassed his reliance on family support, including from Ms RS. There was, therefore, no jurisdictional error on this ground (at [84]).

Ground 5

The applicant accepted that it succeeded only if another ground was made out. Because Ground 1 succeeded, Ground 5 was upheld to the extent that by failing to consider the known views of affected children as required by Direction 110, the Tribunal failed to make its decision in accordance with that Direction (at [85]).

The Court granted relief and made the following orders:

1. a writ of certiorari issue quashing the Tribunal’s decision of 22 July 2025;
2. a writ of mandamus issue remitting the review application to a different Tribunal member for determination according to law; and
3. the Minister pay the applicant’s costs.

PRACTICE AND PROCEDURE – application for non-publication order under s 37AF Federal Court of Australia Act 1976 (Cth) – applicant sought non-publication order to operate until further order – whether Court has power to make final non-publication order until further order.

Practitioners who practise in areas where suppression or non-publication orders (‘SNPO’s) are regularly made will be familiar with the requirement for the Court to be satisfied that such orders are ‘necessary’ on one or more of the grounds set out in s 37AG of the Federal Court of Australia Act 1976 (Cth). Those grounds include: to prevent prejudice to the administration of justice, to prevent prejudice to Commonwealth or State or Territory interests in the areas of national or international security, to protect the safety of any person, or to avoid causing undue stress or embarrassment to certain persons in criminal proceedings involving sexual offences.

Practitioners will also be aware that, consistently with the primary objective of safeguarding the public interest in open justice (s 37AE), the Court is to ensure that a SNPO operates for a duration that is no longer than is reasonably necessary to achieve the purpose for which it is made (s 37AJ(2)).

The Act provides some flexibility in how the Court may set the duration of a SNPO in s 37AJ(3), which provides that the period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

Although it is common for the Court to express the duration of SNPOs as lasting ‘until further order’, the case of Nicolson v Naizmand (duration of non-publication order) [2026] FCA 635 appears to be the first occasion on which the question of whether the Court in fact has the power to make a final SNPO in those terms was fully argued. (It should be noted that the Court has an express power under s 37AI to make interim SNPOs pending determination of an application for a final suppression order. The making of interim orders ‘until further order’ is uncontroversial.)

In giving reasons, Bromwich J concluded that the Court does not have the power to make a SNPO in those terms when the practical effect is that the order would remain in effect on a permanent basis.

Background to the proceeding

In September 2022, the Court made an interim control order (‘ICO’) under s 104.4 of the Criminal Code (Cth) (‘the Code’) in respect of the respondent (Nicolson v Naizmand [2022] FCA 1108). The control order regime in Division 104 of the Code enables the Court to make orders imposing conditions on persons for the purpose of protecting the public from a terrorist act and other related purposes.

The ICO imposed a condition preventing the respondent from associating with certain people identified in the order.

At the same time as making the ICO in 2022, the Court made a SNPO directed to preventing the disclosure of the identity of one such person who had committed offences while a minor, and to avoiding the frustration of equivalent orders made in other proceedings concerning that person (at [6]). The September 2022 SNPO continued until 30 April 2026 (at [9]).

Power to make a final SNPO ‘until further order’

On 23 April 2026, the applicant (who is an officer of the Australian Federal Police) filed an interlocutory application seeking to extend the September 2022 SNPO ‘until further order’ (at [2], [11]).

At an ex parte hearing of the application, Bromwich J expressed the view that the terms of s 37AJ(3) precluded the Court from making a SNPO which is not of a finite duration (at [14]). Having received his Honour’s view, the applicant proposed in the alternative a replacement SNPO which was confined to a fixed period of 10 years, but nonetheless pressed their position that the Court had the power to make the SNPO ‘until further order’ as originally sought (at [15]).

In pressing their argument, the applicant (among other things) referred his Honour to a significant number of decisions in which SNPOs have been made ‘until further order’, in particular the decision of Anastassiou J in Clime Capital Limited v UGL Pty Limited (No 2) [2020] FCA 257 in which his Honour identified 22 such cases (at [28]). In examining all of those cases, Bromwich J found none of them supported the argument that the Court had the power to make SNPOs ‘until further order’ as they did not contain any discussion about the duration of the orders made, nor any consideration of the power to make a SNPO of infinite duration (at [21], [23]).

In accounting for the existence of so many such cases despite the absence of any analysis of power, his Honour inferred that:

‘… busy judges have evidently been in situations in which the need for a suppression order or NPO in terms of breadth or coverage is clear, but the question of the power to make the order being confined to a finite duration has not been considered. It has been a question of practice and procedure, rather than power’ (at [23]).

In Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651, the High Court considered the construction of s 50 of the Act, the predecessor to Pt VAA (which now contains ss 37AF and 37AG), repealed in 2012. The applicant relied on the passage in which French CJ, Gummow, Hayne, Heydon and Kiefel JJ said:

‘It has been assumed, no doubt correctly, that an order made under s 50 of the Federal Court Act may be made until further order and, in any event, may be vacated if the continuation of the order no longer appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. As a general proposition, a court remains in control of its interlocutory orders and a further order will be appropriate, for example, where new facts and circumstances appear or are discovered, which render unjust the enforcement of the existing order’ (at [29]).

Bromwich J found that while s 50 provided some historical assistance in interpreting Part VAA in general, it is of no real assistance in relation to s 37AJ because that was not a feature of s 50 (at [33]). In examining the text of s 37AJ, Bromwich J observed that:

• the title to s 37AJ of ‘Duration of orders’ uses the language of limitation by reference to the passage of time, and that in ordinary parlance the word ‘duration’ is used to indicate the length of time for which something continues;
• because s 37AJ(1) provides that a SNPO only operates for the period decided by the Court and specified in the order that is made, a SNPO cannot operate unless the Court specifies its duration. This requirement was inconsistent with the applicant’s contention that an order could be made ‘until further order’, as the operative period in that form of order was at least indefinite, if not practically speaking infinite, which would undermine the operation of sub-s (1);
• although sub-s (3) allows for an order to be made for something other than a fixed period including by reference to ‘the occurrence of a specified future event’, the specified future event must be one that can reasonably be expected to occur, and not something that is unlikely to ever occur. If a SNPO is made ‘until further order’ at the conclusion of a proceeding, such as by court approval of a class action settlement, it is difficult, if not impossible, to envisage that any further order would, in the ordinary course, ever be made (at [37]).

Looking to the context and purpose of s 37AJ, Bromwich J rejected the applicant’s argument that Parliament could be taken to be aware of the High Court’s statement that a SNPO could be made ‘until further order’ because it referred to the above passage from Hogan (at [29]) in the explanatory memorandum to the Bill which introduced Part VAA. First, the replacement of s 50 with a more comprehensive and demanding regime meant that the only aspect of Hogan retaining real continuing significance was the meaning attributed to ‘necessary’ in Part VAA. Secondly, because the orders in Hogan were interlocutory in nature, the High Court’s reasons could not be understood as endorsing indefinite orders (at [43]).

Finally, his Honour agreed with the applicant’s submission that all SNPOs are interlocutory in nature and it is always open to a party or other interested person to apply for them to be vacated if circumstances change. However, his Honour also observed that it is not uncommon for SPNOs to be made at or near the conclusion of proceedings, after the substantive issues have been determined or resolved. In those circumstances, it is highly unlikely that such a SNPO would ever be revisited by a party to the proceeding, let alone any further order made, with the practical effect that a SNPO made without a finite end point is permanent, which s 37AJ does not permit (at [44]).

Bromwich J concluded that was effectively what would occur if the order sought in the proceedings was made in the terms sought. No further substantive issues remained outstanding, and no future procedural steps were contemplated. His Honour also noted that while a third party could later seek access to information covered by such a SNPO, they would be prevented from doing so unless they incurred the time and expense of applying to have the otherwise indefinite order set aside. That would place the burden of displacing the order on the third party, rather than the person who sought and obtained the order. The practical effect of such a SNPO is that it would likely operate indefinitely, an outcome which his Honour described as ‘the antithesis of the principle of open justice’ (at [45]).

In limiting the duration of the order sought to 10 years, his Honour concluded that:

‘[section] 37AF of the Act does not bestow a power to make an indefinite final NPO, such as an NPO which applies “until further order”. A final NPO must apply for a finite duration, in the sense of having an express date upon which it expires, an express or otherwise ascertainable duration for which it applies, or a point in time referable to a particular specified event which can reasonably be expected to occur, such that it can be known, at the time it is made, that the NPO will expire. The language of “until further order” does not meet that description, because that does not entail any basis for concluding, at the time the NPO is made, that any such order will ever be made’ (at [46]).

Takeaway for practitioners

With the Court’s position on the duration of SNPOs now undoubtedly clear, practitioners seeking SNPOs will need to be ready to propose a finite, ascertainable duration for which the orders will apply, while bearing in mind that any departure from the principle of open justice must endure only for so long as is genuinely necessary.

Paris Hart is a barrister in Chalfont Chambers.  Tim Maybury is a barrister in 6 St James Hall Chambers