HSNR v Minister for Immigration - Judicial Review of Protection Visa Refusal

Original Word Document (109.2 KB) Federal Court of Australia

HSNR v Minister for Immigration and Citizenship [2026] FCA 324

| Appeal from: | HSNR and Minister for Immigration and Citizenship (Migration) [2025] ARTA 884 (3 July 2025) |
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| File number(s): | NSD 1370 of 2025 |
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| Judgment of: | MOORE J |
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| Date of judgment: | 25 March 2026 |
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| Catchwords: | MIGRATION – application for judicial review of a decision of the Administrative Review Tribunal (Tribunal) to affirm a refusal to grant a protection visa to the applicant – applicant convicted of offences relating to the cultivation and supply of cannabis – whether the Tribunal, pursuant to Primary Consideration 1 of Direction 110, allowed the seriousness with which the criminal law treats the supply of cannabis to influence its consideration of the risk to the Australian community should the applicant reoffend – whether the Tribunal’s decision was illogical – no error or illogicality established – application dismissed |
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| Legislation: | Migration Act 1958 (Cth) ss 499 and 501

Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA |
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| Cases cited: | Archer v Minister for Immigration and Citizenship [2026] FCAFC 20

ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37 |
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| Division: | General Division |
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| Registry: | New South Wales |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 75 |
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| Date of hearing: | 23 February 2026 |
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| Counsel for the Applicant: | Mr N Poynder |
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| Solicitor for the Applicant: | Stephen John Lawyers |
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| Counsel for the First Respondent: | Ms K Hooper |
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| Solicitor for the First Respondent: | Australian Government Solicitor |
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| Solicitor for the Second Respondent: | The second respondent filed a submitting notice, save as to costs |
ORDERS

| | | NSD 1370 of 2025 |
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| BETWEEN: | HSNR

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | MOORE J |
| DATE OF ORDER: | 25 March 2026 |
THE COURT ORDERS THAT:

1. The application be dismissed, with costs.

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

REASONS FOR JUDGMENT

MOORE J:

Introduction

1 On 10 April 2025, a delegate of the Minister for Immigration and Citizenship (Minister) refused to grant the applicant a Protection (Class XA) (Subclass 866) visa (Protection Visa) under s 501(1) of the Migration Act 1958 (Cth) (Migration Act) on character grounds (Refusal Decision).

2 On 3 July 2025, the Administrative Review Tribunal (Tribunal) affirmed the Refusal Decision (Tribunal Decision).

3 By originating application dated 7 August 2025, the applicant now seeks judicial review of the Tribunal Decision on the sole ground that the Tribunal “acted on an incorrect understanding of the law and arrived at a finding that was illogical.”

4 In summary (and without capturing all aspects of the argument, which is dealt with in more detail below), the applicant contends that the Tribunal allowed its understanding as to the seriousness with which the criminal law treats the cultivation of a commercial quantity of cannabis, including that it treats it as equivalent to harder drugs, to infect its consideration of the likely risk of harm to the Australian community, instead of giving independent consideration of the extent to which cannabis causes harm.

5 The applicant had initially advanced a second ground alleging unreasonableness but indicated in her written submissions that this ground was no longer pressed.

Background

6 At the date of this decision, the applicant is a 36 year old woman who is a citizen of Vietnam. The applicant arrived in Australia on a student visa in 2009 when she was 19 years of age.

7 The applicant married her first husband in Vietnam in 2010, and she shares a son with him who was born in Vietnam in April 2011. It appears that the applicant’s son continues to reside in Vietnam with his maternal grandmother. She divorced her first husband in late 2011.

8 Subsequently, the applicant married her second husband in Australia in 2012. In December 2019, she was granted a Partner (Class BS) (Subclass 801) visa (Partner Visa).

9 In August 2020, the applicant was arrested and charged with offences relating to the cultivation and supply of a commercial quantity of a prohibited drug, being cannabis.

10 On 7 April 2022, the applicant pleaded guilty to and was convicted by Judge Pickering SC of the New South Wales District Court for these offences, namely, knowingly taking part in the cultivation of a large commercial quantity of a prohibited plant (cannabis) and knowingly taking part in the supply of a large commercial quantity of a prohibited drug (cannabis) (2022 Offences). The applicant was sentenced to an aggregate term of imprisonment of 5 years and 6 months commencing on 27 August 2020, and expiring on 26 February 2025 with a non-parole period of 3 years and 2 months. The applicant was granted parole on 26 October 2023.

11 This was the applicant’s first custodial sentence and, prior to this, the applicant did not have any history of criminal conduct.

12 On 26 July 2022, the applicant’s Partner Visa was mandatorily cancelled under s 501(3A) of the Migration Act on the basis that she did not pass the “character test” as she was serving a sentence of imprisonment on a full time basis in a custodial institution. She sought revocation of the mandatory cancellation of her Partner Visa, and on 13 March 2024, a delegate of the Minister decided not to revoke the mandatory cancellation. The applicant sought merits review of that decision before the Tribunal who ultimately on 5 June 2024 affirmed the decision. That Tribunal decision is not the subject of this application for judicial review.

13 Subsequently, on 8 July 2024, the applicant applied for a Protection Visa. On 17 July 2024, a delegate of the Minister refused to grant the Protection Visa. That decision was the subject of merits review by the Tribunal who, on 18 November 2024, found that the applicant was owed protection obligations under s 36(2)(aa) of the Migration Act and set aside that decision and remitted the matter back to the Minister for reconsideration. That decision is not the subject of this application for judicial review.

14 On 11 February 2025, a delegate of the Minister gave notice to the applicant of its intention to consider the refusal of her application for a Protection Visa. The delegate invited the applicant to comment on the materials before the Minister that indicated that she may not pass the character test, and to provide reasons as to why the application should not be refused even if she did not pass the character test.

15 On 10 April 2025, a delegate of the Minister refused the applicant’s application for a Protection Visa because she did not satisfy the character test under s 501(1) of the Migration Act. That decision was affirmed by the Tribunal on 3 July 2025. It is that decision which is the subject of the present application for judicial review.

16 The applicant is currently on a Bridging (Removal Pending) (Subclass 070) visa. If her application for a Protection Visa remains refused, her position thereafter may be affected by the decision of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37.

Legislative Framework

17 Section 501(1) of the Migration Act provides that “the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.” The term “character test” is defined under s 501(6) to include where the person has a “substantial criminal record” which includes when a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).

18 When deciding to refuse to grant a visa under s 501(1) of the Migration Act, the Tribunal was required to comply with “Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 110). Section 499 provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. Importantly, s 499(2A) obligates a decision-maker to comply with such a direction made.

19 Direction 110 commenced on 21 June 2024 and acts to “guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the [Migration] Act.” Direction 110 outlines “primary considerations” and “other considerations” that are factors, to the extent relevant in the particular case, that must be considered by a decision-maker in making a decision under s 501 of the Migration Act. Direction 110 also outlines principles that should inform the task of deciding whether to, inter alia, refuse a non-citizen’s visa.

20 The principles under paragraph 5.2 of Direction 110 include:

(2)    The safety of the Australian Community is the highest priority of the Australian Government.

…

(4)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

…

(7)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

21 The five Primary Considerations listed under paragraph 8 of Direction 110 are:

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

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

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

(d) the best interests of minor children in Australia; and

(e) expectations of the Australian community.

22 Of relevance to this application is the Tribunal’s consideration of the first primary consideration (Primary Consideration 1).

23 Primary Consideration 1 is further elucidated in paragraph 8.1 of Directions 110, in the following relevant terms:

8.1. Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers 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)    Decision-makers should also give consideration to:

a)    the nature and seriousness of the non-citizen’s conduct to date; and

b)    the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

8.1.1. The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:

a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i.    violent and/or sexual crimes;

ii.    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

i.    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

ii.    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

iii.    any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

iv.    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)    the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

e)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

f)    the cumulative effect of repeated offending;

g)    whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

h)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

i)    where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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. 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.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i.    information and evidence on the risk of the non-citizen reoffending; and

ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

24 Thus after stating and explaining that the safety of the Australian community is the highest priority, and that entering and remaining in Australia is a privilege conferred on non-citizens in the expectation that they will be law abiding, it is then stated (at paragraph 8.1(2)) that decision-makers should also give consideration to two limbs, namely (1) the nature and seriousness of the non-citizen’s conduct to date, and (2) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraphs 8.1.1 and 8.1.2 provide an elaboration of what is to be considered under those two limbs.

25 Paragraph 7 of Direction 110 provides that Primary Consideration 1 “is generally to be given greater weight than other primary considerations.” Otherwise, primary considerations should generally be given greater weight than the other considerations, although “[o]ne or more primary considerations may outweigh other primary considerations.”

26 Direction 110 also includes “Other Considerations” that are outlined at paragraph 9. The “Other Considerations” are not relevant to this application.

The Tribunal’s Decision

27 As this application primarily concerns Primary Consideration 1, I will focus on aspects of the Reasons as they pertain to that consideration.

28 Under the sub-heading “Nature and seriousness of the Applicant’s conduct to date”, which appears to be a reference to the first limb of paragraph 8.1(2) of Direction 110, the Tribunal observed that the applicant was sentenced to imprisonment for 5 years and 6 months, with a non-parole period of 3 years and 2 months, for the 2022 Offences: Reasons [36].

29 In the Reasons at [42], the Tribunal recorded the submission by the applicant that the approach of Australian courts to sentencing was to disregard the relative harm caused by the particular drug in question and focus on the act of production and supply. At Reasons [43], the Tribunal observed that this was reflected in the remarks of the sentencing judge, who noted that whilst there were a range of views in society about cannabis and whether it should be legalised, that debate had no role to play in the sentencing exercise under laws which regard cannabis as serious for that purpose. At Reasons [44], the Tribunal recorded the submission of the applicant that the crimes of cultivation and supply of cannabis are very serious offences because parliament says so, not because they are likely to cause serious harm to the community.

30 At Reasons [47], the Tribunal observed the significant involvement and seniority of the applicant in relation to the crimes, such that her criminal conduct was serious. The Tribunal then stated at Reasons [48]:

The seriousness of the Applicant’s offending was reflected in the imposition of a custodial sentence of five years and six months. Although well below the maximum penalty for the offenses, the Tribunal considers the sentence significant. The representative argues that such a ‘hefty’ sentence for cultivation and supply of cannabis is because such offences are considered by parliament to be very serious offences, not because they are likely to cause serious harm to the community. It is not up to the Tribunal to question the intention of parliament, nor to go behind the sentencing and/or impugn the decision on which the conviction was based, including making its own assessment as to harms cannabis may cause relative to other drugs (and alcohol and tobacco, as submitted by the Applicant’s representative) in considering the nature and seriousness of the Applicant’s conduct to date.

31 At the hearing before this Court, the applicant’s counsel (who also appeared for the applicant before the Tribunal) said that paragraph [48] of the Reasons summarised submissions he had made, including by reference to the decision in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (Bromberg J) at [41] – [95], which is footnoted in the Reasons at [48].

32 In the Reasons at [50], the following passage appears:

The offense [sic] in terms of cultivation and supply of a commercial quantity of a prohibited drug – in this case cannabis – had the potential to lead to harm to members of the Australian community (discussed in more detail below). The Applicant in her evidence acknowledges as such [sic].

33 At Reasons [51], the Tribunal observed that it was satisfied that the applicant’s conduct was “serious” pursuant to paragraph 8.1.1(b) of Direction 110. However, the Tribunal also acknowledged that this was the applicant’s first custodial sentence, there was no trend of increasing seriousness in relation to the applicant’s offending, and she had not offended since her release into the community on 10 April 2025: Reasons [54].

34 The Tribunal next considered the second limb of Primary Consideration 1, under the sub-heading “Risk to the Australian community”. The Tribunal referred to the final sentence of paragraph 8.1.2(1) of Direction 110 (which elaborated on the second limb to Primary Consideration 1), noting that “some conduct and the harm that would be caused, if repeated, is so serious that any risk that [it] may be repeated is unacceptable”: Reasons [56].

35 The Tribunal observed that consideration of the second limb required the Tribunal “to have regard – on a cumulative basis – to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct, and the likelihood of her doing so”: Reasons [58].

36 The Tribunal then summarised the submissions made by the Minister and the applicant in their respective Statements of Facts, Issues and Contentions before the Tribunal in relation to the second limb.

37 At Reasons [60] and [61], the Tribunal recorded the Minister’s submission that:

(a) the nature of harm to individuals and the Australian community should the applicant commit similar crimes to the 2022 Offences include serious physical and psychological harm, including possible death; and

(b) even if the applicant presented a low risk of reoffending, “the great harm that could come to countless members of the community if she returns to large scale illicit drug production” weighed strongly against granting the visa.

38 At Reasons [62] – [67], the Tribunal records the applicant’s submissions, including:

(a) references to various reports which indicated that the risk of cannabis use was minimal and falls within the lowest category of drug harm, including that it was less harmful than alcohol;

(b) references to evidence that cannabis was widely available and that almost a quarter of the population considered that personal use was acceptable;

(c) the importance of distinguishing between the seriousness given to cannabis offences by courts for the purpose of sentencing, and the actual risk of harm to the community.

39 After addressing those submissions, the Tribunal stated at Reasons [69] – [73] as follows (italics in original):

69.    Given the Tribunal has found, for reasons set out earlier, that the offences of cultivation and supply of a large commercial quantity of an illicit drug (including cannabis) to be serious, it is satisfied the nature of the potential harm to the Australian community if the Applicant commits further offenses [sic] or engages in other serious conduct would be serious. If this eventuated, such conduct could involve physical and psychological harm to members of the community.

70.    In GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 250 the Member noted the ‘well recognised’ harm which flows from the circulation and use of cannabis in the community including short term and long-term effects was set out [sic], including physical dependence and mental health conditions including depression.

71.    In the section on cannabis in Australia’s National Drug Strategy 2017 – 2026 it states:

As the most widely used of the illicit drugs in Australia, cannabis carries a significant burden or [sic: of] disease. The use of cannabis can result in various health impacts, including mental illness, respiratory illness, and cognitive defects. In particular, cannabis dependence among young adults is correlated with, and probably contributes to, mental disorders such as psychosis.

72.    The Tribunal considers the potential harm to the Australian community as a result of the cultivation and supply of a large commercial quantity of illicit drugs - including cannabis - is serious, even if less so than …some other illicit drugs, tobacco and alcohol in terms of overall health burdens. At the time of the Tribunal’s decision the cultivation and supply of commercial quantity of cannabis remains prohibited.

73.    For these reasons the Tribunal finds the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal conduct or other serious conduct is likely to be considerable.

40 The Tribunal then proceeded to consider, in a considerable level of detail, the likelihood of the applicant further reoffending by reference to risk assessments conducted on the applicant, antecedent risks such as financial pressures, the applicant’s prison behaviour and rehabilitation efforts, and the applicant’s “pro social factors”.

41 For example, the Tribunal considered two risk assessments conducted on the applicant suggesting that she was at a low risk of reoffending: Reasons [75] – [76]. One of those assessments found that while the applicant was still somewhat vulnerable to financial pressure due to a debt of around AUD $137,000 that her mother in Vietnam had incurred to pay the applicant’s legal fees, there was evidence that suggested that the applicant was far less psychologically vulnerable than when she was involved in the criminal conduct that gave rise to the 2022 Offences: Reasons [88].

42 The Tribunal considered the applicant’s prison behaviour and rehabilitation efforts. The Tribunal noted that while in prison, the applicant was given positions of authority, and there was no evidence that she was involved in prison incidents. The Tribunal noted that after the applicant was released to the community, the applicant’s parole officer reported that she demonstrated a consistent and commendable commitment to rehabilitation and community integration.

43 The Tribunal also referred to the sentencing remarks of Judge Pickering SC who expressed confidence in the applicant’s prospect of rehabilitation and found that her risk of reoffending was lower: Reasons [99].

44 At Reasons [108], the Tribunal said the following:

If the Applicant reoffends in a similar way, the Tribunal considers that the nature of the harm to individuals or the Australian community would be serious. As noted, drugs can be very harmful to members of the Australian community, including cannabis which remains prohibited.

45 The Tribunal accepted that the risk of the applicant engaging in further criminal or serious conduct was low (at Reasons [111]) and accepted that the applicant had taken steps to improve her psychological vulnerability (at Reasons [113]). The Tribunal also acknowledged that the applicant’s offending took place in the context of the applicant being under financial stress and undiagnosed mental health issues, but that she had undertaken programs to address those issues: Reasons [115]. The Tribunal noted that she was still under significant financial stress, in large part due to the debts her mother had incurred in Vietnam: Reasons [115].

46 However, the Tribunal’s ultimate conclusion was that Primary Consideration 1 weighed moderately in favour of refusing the grant of the applicant’s visa:

116.    …overall, the Tribunal considers the offences involving the cultivation and supply of a large commercial quantity of the illicit drug, cannabis, for which the Applicant was convicted and received a significant custodial sentence, to be serious. The Tribunal considers the Applicant is at low risk of reoffending, however continuing.

117.    Given the seriousness of the potential harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and taking into account the Government’s view that the Australian community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increases and noting the harm that would be caused by the distribution of large amounts of drugs if repeated (even cannabis), the Tribunal considers even an appreciable risk is unacceptable. It notes in this regard even a low risk of offending is unacceptable if the gravity of the harm that might eventuate is sufficiently serious: Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [30].

118.    Having had regard to the nature and seriousness of the Applicant’s conduct (which the Tribunal has assessed as serious) and the risk of her reoffending (which the Tribunal has assessed as low however unacceptable), the Tribunal concludes this consideration weighs moderately in favour of refusing to grant the Applicant’s visa.

Application for judicial review

47 The applicant advances a single ground of jurisdictional error, namely, that the Tribunal misconstrued the application of Primary Consideration 1 and arrived at a finding that was illogical. The applicant’s originating application dated 7 August 2025 expressed that ground in the following way:

1. In deciding to affirm a decision of the first respondent to refuse to revoke the cancellation of the applicant’s visa, the second respondent (Tribunal) acted on an incorrect understanding of the law and arrived at a finding that was illogical.

Particulars

(a)    When considering the first primary consideration in par. 8.1 of Ministerial Direction 110 (Direction 110), being “ The Protection of the Australian community ” the Tribunal conflated the seriousness of the applicant’s criminal conduct with the nature of the potential harm to the Australian community should the applicant reoffend.

(b)    In the present case the seriousness of the applicant’s criminal conduct – involving the cultivation of large commercial quantity of cannabis – ought to have been assessed separately to the relative harm that the drug might cause, so that any such charge would be serious, regardless of the evidence of harm which the conduct might cause to the community.

(c)    The Tribunal at [51] found that the applicant’s criminal conduct was “serious”, then at [69] found that, as a consequence of this finding, the nature of the potential harm to the Australian community if the applicant committed further offenses [sic] would also be “serious”. This finding misconstrued the question to be asked when assessing par. 8.1 of Direction 110 and, in so doing, made a finding that was illogical

48 Expressed simply, the applicant contends that, having regard to the two limbs in Primary Consideration 1, the Tribunal impermissibly imported considerations of the seriousness of the applicant’s criminal conduct (i.e. the first limb) into its consideration of the risk to the Australian community if the applicant re-offended (i.e. the second limb).

49 The applicant does not seek to challenge the Tribunal’s acceptance of Parliament’s view that the offences the applicant committed were very serious offences for the purpose of the first limb. Rather, the applicant contends that the consideration of harm and risk to the Australian community under the second limb was a separate enquiry, which the Tribunal did not keep separate.

50 The applicant also characterised the error as one where the Tribunal permitted the seriousness of the offences for the purposes of criminal sentencing to “bleed into” its assessment under the second limb. When asked in the course of the hearing to identify the passages in the Reasons that demonstrated that impermissible “bleeding”, the applicant identified paragraphs [69] and [72] of the Reasons.

51 As extracted above, the Tribunal stated at Reasons [69]:

Given the Tribunal has found, for reasons set out earlier, that the offences of cultivation and supply of a large commercial quantity of an illicit drug (including cannabis) to be serious, it is satisfied the nature of the potential harm to the Australian community if the Applicant commits further offenses or engages in other serious conduct would be serious. If this eventuated, such conduct could involve physical and psychological harm to members of the community

52 At Reasons [72], the Tribunal stated:

The Tribunal considers the potential harm to the Australian community as a result of the cultivation and supply of a large commercial quantity of illicit drugs - including cannabis - is serious, even if less so than other some other [sic] illicit drugs, tobacco and alcohol in terms of overall health burdens. At the time of the Tribunal’s decision the cultivation and supply of commercial quantity of cannabis remains prohibited.

53 The applicant submits in its written submissions that it is apparent from these paragraphs that “the Tribunal said, in effect, given that the Tribunal had found (in the first leg) that the offences were serious, it followed that the harm to the community would also be serious” (emphasis in original).

54 In response, the Minister makes a number of points. First, the Minister submits that paragraph [69] of the Reasons “cannot be read divorced from the context in which it appears.” The Minister points to other passages in the Reasons that the Minister says indicate that the Tribunal was undertaking a proper consideration of the second limb: i.e. the risk to the Australian community: Reasons [70] – [73], [108], [116] and [117].

55 Secondly, the Minister submits that in considering the second limb, one cannot divorce that consideration from a consideration of the seriousness of the criminal offending, because it is the potential for reoffending in the same manner that creates the relevant risk: i.e. that it is a large scale operation, that the applicant had a very significant role, and other matters going to objective seriousness. It follows, so the Minister submits, that there must necessarily be an interrelationship between the seriousness of the conduct and a consideration of the risk to the community. On that approach, some form of “bleeding” is in fact required for the purposes of proper analysis.

Principles

56 It is well settled that the reasons of the Tribunal must be read as a whole and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In assessing whether the reasons of the Tribunal are vitiated by illogicality, this Court must be cautious to ensure it does not impermissibly engage in an assessment of the merits of the decision.

57 In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [135], Crennan and Bell JJ stated that a decision will be illogical or irrational if:

only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

58 Conversely, “a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker”: SZMDS at [135].

59 This encapsulation by Crennan and Bell JJ of the “illogicality” ground has been endorsed by this Court, including the Full Court, on numerous occasions: see e.g. King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at 55.

60 In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at 61, the Full Court cited SZMDS at [124] and noted that “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality.”

61 In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (Griffiths, Perry and Bromwich JJ) at [47], the Full Court, quoting Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148], stated:

for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”

62 The Full Court in Archer v Minister for Immigration and Citizenship [2026] FCAFC 20 at 24 noted that the High Court’s position is that “not every arguable logical weakness amounts to jurisdictional error – the question is whether the impugned step leads to a conclusion at which no rational or logical decision-maker could arrive on the same material.”

Consideration

63 When the Reasons are read as a whole, it is tolerably clear that the Tribunal gave separate consideration to the seriousness of the conduct (including as reflected by the treatment of that conduct by the criminal law) and the risk to the community from the possibility of the applicant reoffending.

64 It is clear that the Tribunal was cognisant of the applicant’s contention that the risk of harm to the Australian community from cultivating cannabis had to be assessed separately from any consideration of the seriousness with which the criminal law treats that conduct for the purposes of sentencing. The Tribunal recorded this submission, and the relevant distinction, in the Reasons at [42], [43], [44] and [48].

65 The Tribunal then proceeded to give separate consideration of the risk which a re-occurrence of the cultivation and supply of cannabis would pose for the Australian community. Thus:

(a) at [50], the Tribunal observed that the cultivation and supply of a commercial quantity of cannabis had the potential to lead to harm to members of the Australian community;

(b) at [70], the Tribunal referred to the observations in GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 250 as to the “well recognised” harm which flows from the circulation and use of cannabis in the community, including physical dependence and mental health conditions;

(c) at [71], the Tribunal quoted from Australia’s National Drug Strategy 2017 – 2026, which states that cannabis carries a significant burden of disease, in that it can result in various health impacts including mental illness, respiratory illness, and cognitive defects, and that is has particular implications for young adults because it is correlated with, and probably contributes to, mental disorders such as psychosis;

(d) at [72], the Tribunal drew a distinction between the impact of cannabis and other illicit drugs, as well as tobacco and alcohol, in terms of overall health burdens, but stated that the potential harm to the Australian community as a result of the cultivation and supply of a large commercial quantity of cannabis “is serious”;

(e) at [73], the Tribunal concluded that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct “is likely to be considerable”;

(f) at [108], the Tribunal observed that drugs, including cannabis, “can be very harmful to members of the Australian community”; and

(g) at [117], the Tribunal referred to the seriousness of the potential harm to individuals or the Australian community should the applicant engage in further criminal conduct, noting the harm that would be caused by the distribution of large amounts of drugs if repeated, “even cannabis”.

66 None of these passages could be interpreted as the Tribunal concluding that the cultivation and supply of cannabis was a risk to the Australian community merely because the criminal law treated it as a serious matter. Further, by distinguishing cannabis from other drugs and treating cannabis separately, the Tribunal was acting consistently with the applicant’s submissions to the Tribunal that there was a need to distinguish between criminal sentencing (which treated cannabis the same as other drugs) and the risk to the Australian community (where the impact of cannabis might be different from, and less than, other drugs).

67 The applicant’s argument does not depend upon a construction of the Reasons whereby the Tribunal did not give any separate consideration to the risk of harm presented by a recurrence of the criminal offending to the Australian community. Rather, the applicant submits that the Tribunal allowed the seriousness of the conduct recognised by the criminal law to bleed into the second limb.

68 It may be recognised that there are certain passages in the Reasons which, if read in isolation, could provide some support for the applicant’s contention. For example, Reasons 69 states that given that Tribunal has found “for reasons set out earlier” that the relevant offences are serious, “it is satisfied [of] the nature of the potential harm to the Australian community if the Applicants commits further offenses … would be serious.” If that is merely a reference to its finding that the criminal law treats the offences as serious, then that could be problematic as the applicant suggests. Likewise, the last sentence of Reasons [72] refers to the cultivation and supply of cannabis remaining prohibited, when the balance of the paragraph is speaking of the potential harm to the Australian community. As the applicant submits, the prohibition of cannabis does not of itself address the question of risk of harm.

69 However, the reference in paragraph [69] to the reasons “set out earlier” includes paragraph [50] of the Reasons, which contains a statement about the potential for cannabis to lead to harm to members of the Australian community, and a note that this is “discussed in more detail below”, which would include a reference to the Reasons at [70] – [73], [108] and [117]. In any event, it is not appropriate to read Reasons [69] in isolation, and there are other paragraphs that make the Tribunal’s position plain on the risk that may arise from the commercial cultivation and supply of cannabis. Further, the reference to the offences being “serious” has a dual meaning, as the Minister submitted and as discussed below.

70 In relation to Reasons [72], the relevant reference is not the basis on which the Tribunal has reached a conclusion about the potential harm of the conduct in question, in light of other paragraphs, including adjacent paragraphs, that discuss that harm in a manner unconnected with the criminal law. Further, the continued illegality of cultivating cannabis could reflect, to some extent, an assessment by relevant authorities as to its potential for harm. It cannot be said to be irrelevant to the Tribunal’s consideration, and it certainly does not appear to have been considered by the Tribunal to be determinative. As the Minister submits, this sentence appears, at least in part, to be a response to the applicant’s submission before the Tribunal that cannabis had been decriminalised in the Australian Capital Territory.

71 Further, as the Minister submits, the first and second limbs of paragraph 8.1(2) of Direction 110 cannot be considered in isolation from each other. Under the second limb, the Tribunal is required to consider the risk to the Australian community “should the non-citizen commit further offences.” The second limb of Primary Consideration 1 expressly notes (at paragraph 8.1.2(1)) that “[s]ome 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.” The second limb required the Tribunal to consider, cumulatively, the following considerations that are relevant to assessing the risk that may be posed by the applicant to the Australian community:

(a) the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and

(b) the likelihood of the applicant engaging in further criminal or other serious conduct.

72 The second limb thus requires consideration of the seriousness of the offences which the applicant committed, including objective matters as to the degree of culpability, because the risk which the Tribunal is considering includes, inter alia, the risk of these offences (or offences of a similar type) being committed again. References in the Reasons to the “seriousness” of the offences cannot sensibly be construed as limited to the seriousness with which the criminal law treats cannabis, but include references to the quantity of cannabis, the applicant’s role, and other objective matters pertaining to culpability. The offences were considered by the Tribunal to be “serious” not just because the criminal law treats the commercial cultivation and supply of cannabis as serious, but also because (inter alia):

(a) the applicant’s offending “involved the cultivation and supply of a large commercial quantity of a prohibited drug, cannabis”: Reasons at [47];

(b) the applicant’s involvement was significant as “she negotiated the price of the land, purchased the land, was involved in the purchase of the greenhouse and equipment” and “clearly played a very significant role in its operation”: Reasons at [47];

(c) the applicant “was at a high echelon” and “very close to the top” of the operation: Reasons at [47]; and

(d) the applicant’s criminality was in the mid-range of objective seriousness for an offence of this nature: Reasons at [49].

73 References by the Tribunal to “seriousness”, when referring to the second limb, must be understood as including a reference to these matters, which are appropriate matters for the Tribunal to take into account in connection with the second limb.

Conclusion

74 Read as a whole, the Reasons do not involve any impermissible bleeding of the treatment of the relevant offences by the criminal law into the Tribunal’s consideration of the second limb. Nor do the Reasons involve any illogicality. The Reasons do not contain the errors alleged by the applicant.

75 The application should be dismissed, with costs.

| I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moore. |
Associate:

Dated: 25 March 2026

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