A recent Federal Court decision has set aside a visa cancellation character test ruling because the Tribunal failed to engage with handwritten letters from three children. A reminder that decision-makers cannot treat children’s voices as mere character references.
The Case at a Glance
In Sumeo v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 563, the Federal Court allowed a judicial review application challenging the Administrative Review Tribunal’s decision to uphold the cancellation of a New Zealand citizen’s Subclass 444 Special Category visa.
The Applicant had lived in Australia since 1993, arriving as a teenager, and had deep family roots here. A wife, biological children, stepchildren, siblings, and extended family. He also had a long history of criminal offending, including serious family violence. In May 2025, a delegate of the Minister cancelled his visa under s 501(2) of the Migration Act 1958 (Cth). It was found that he did not pass the character test. The Tribunal affirmed that decision in July 2025.
The Federal Court found the Tribunal had made a critical error and sent the case back to be decided again.
Key result: The Court issued certiorari quashing the Tribunal’s decision and remitted the matter for redetermination by a differently constituted Tribunal. The Minister was ordered to pay the applicant’s costs.
The Critical Mistake: Failing to Consider Three Children’s Handwritten Letters
What Were the Letters?
The Tribunal had evidence before it including letters from four children. It acknowledged a letter from Child A. Handwritten letters were also submitted from Child B, Child C, and Child D. These were part of the Applicant’s additional evidence
These were not generic character references. The children wrote about:
- The applicant’s role in their day-to-day lives
- The emotional, financial and practical support he provided
- The impact his removal from Australia would have on them and younger siblings
- One child describing the family would be ‘devastated’
- Another referring to the ‘big toll’ his absence would take on a younger sibling
What Did the Tribunal Do?
The Tribunal referred to Exhibit 10 as containing ‘various character references.’ It said nothing further about the letters from Child B, Child C, or Child D. The Tribunal identified the affected children and summarised their circumstances. However, it did so in a formulaic way. It did not engage with what those three children had actually written.
The Court’s finding: Justice Shariff described it as ‘unthinkable’ that such prominent material would not have been mentioned if it had genuinely been considered.
Why Did That Matter Legally?
Direction No 110 – the Ministerial Direction governing how the Tribunal must approach visa cancellation decisions – requires the best interests of minor children in Australia to be treated as a primary consideration. Paragraph 8.4(4)(f) specifically requires decision-makers to consider, where relevant, ‘any known views of the child’, giving those views due weight according to the child’s age and maturity.
That obligation is mandatory, not discretionary. The letters from the three children were directly relevant to that consideration. By failing to engage with them, the Tribunal committed jurisdictional error.
The Other Arguments: What Succeeded and What Did Not
Ground 2: Did the Tribunal Fail to Assess Each Child’s Best Interests? — Dismissed
The Applicant argued the Tribunal had not properly determined whether cancellation was in the best interests of each individual child. The Court rejected this ground, holding that such a determination can be implicit from the reasons as a whole. Despite the error regarding the letters, the Tribunal had still identified and assessed each child’s circumstances, and it was implicit from its reasons that it considered remaining in Australia would serve each child’s interests — though only moderately, given the applicant’s conduct.
Ground 3: Did the Tribunal Mishandle the Family Violence? — Dismissed
The applicant argued the Tribunal had not properly examined the actual seriousness of his recent offending and its concrete effects on victims. The Court disagreed. Reading the Tribunal’s reasons fairly and as a whole, the Court found a detailed and methodical assessment of the offending: its history, the impact on victims, the fact that some incidents occurred in children’s presence, repeated reoffending despite warnings, AVOs and bonds, and ongoing anger management issues. The Tribunal had not simply labelled the conduct as ‘serious’ because it was family violence — it had genuinely examined it.
Ground 4: Did the Tribunal Overlook the Applicant’s Personal Ties? — Dismissed
The applicant submitted that the Tribunal failed to consider his limited literacy and dependence on his wife for everyday tasks as part of his own ties to Australia. The Court accepted that Direction 110 requires this assessment from the applicant’s perspective, not only in terms of impact on family members. However, reading the reasons as a whole, the Court found the Tribunal had adequately addressed this. It expressly found he had ‘many strong connections to the Australian community’ and also addressed his literacy and intellectual disability separately under the heading dealing with difficulties he might face if required to return to New Zealand.
Ground 5: Overall Non-Compliance with Direction 110 — Upheld
This ground succeeded because Ground 1 succeeded. By failing to consider the known views of the affected children as required by Direction 110, the Tribunal necessarily failed to make its decision in accordance with that Direction.
What This Decision Means for Visa Holders and Their Families
This case carries important lessons for anyone facing visa cancellation proceedings – and for the family members affected by them.
Children’s Letters Are Not ‘Character References’
There is a meaningful legal difference between a character reference and a statement from an affected child about their own circumstances and views. Such letters may contain both character material and evidence relevant to the children’s own interests and views. Decision-makers must consider any known views of the child, where relevant, as part of assessing the child’s best interests under Direction No 110 – not simply note it as background material. Those views must be considered and given appropriate weight according to the child’s age and maturity.
The Tribunal Must Do More Than Tick Boxes
A formulaic treatment of children’s best interests will not suffice. Identifying the children and listing their ages is not enough if the Tribunal fails to engage with material evidence of their known views. The obligation under paragraph 8.4(4)(f) requires meaningful engagement with what the children have actually said.
Implicit Reasoning Can Sometimes Be Sufficient
Not every aspect of a decision needs to be stated expressly. The Court confirmed that a finding about each child’s best interests can be implicit from the reasons as a whole, provided the substance of the assessment is genuinely present. This gives some flexibility to decision-makers while maintaining the requirement that primary considerations are actually addressed.
A Strong Offending History Does Not Automatically Determine the Outcome
Even where an applicant has a long and serious criminal record, as this Applicant did, the mandatory considerations under Direction 110 must still be properly applied. The existence of significant protection concerns does not excuse a failure to consider children’s views. That said, serious offending may still lawfully outweigh other considerations where Direction No 110 is properly applied and all mandatory factors have been weighed. The remittal means the Tribunal must now re-decide the matter with those letters properly before it.
Key Takeaways
If you or a family member is facing visa cancellation, the way evidence is prepared and presented can be decisive. Children’s letters and statutory declarations may be significant evidence relevant to the primary consideration concerning the best interests of minor children.
For Visa Holders
- Prepare early. If children will be affected by your visa outcome, their views should be documented clearly and separately from general character references.
- Be specific. Letters from children should address their own circumstances, the impact of removal on them directly, and the applicant’s role in their lives — not just express general support.
- Know the Direction. Direction No 110 sets out the framework the Tribunal must follow. Understanding what the Tribunal is required to consider helps you frame your evidence effectively.
- Challenge errors. If the Tribunal fails to engage with mandatory considerations, judicial review may be available. The grounds are technical but real — as this case demonstrates.
For Family Members
- Your voice counts. The best interests of minor children in Australia are a primary consideration under Direction No 110. Where children have expressed their own views about the likely impact of a parent’s removal, those views must be considered and given appropriate weight according to the child’s age and maturity. Courts take seriously whether the Tribunal has genuinely engaged with what children have said.
- Get legal advice early. Migration decisions involving character cancellation are complex and time-sensitive. Early advice about rights and obligations under Direction 110 can make a material difference.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Seb Hain, PLT
