Lo v Minister for Immigration and Citizenship - Migration Case

Original Word Document (96.1 KB) Federal Court of Australia

Lo v Minister for Immigration and Citizenship [2026] FCA 338

| Review of: | Lo v Minister for Immigration and Citizenship [2025] ART 3425 |
| | |
| File number(s): | VID 1103 of 2025 |
| | |
| Judgment of: | MCELWAINE J |
| | |
| Date of judgment: | 26 March 2026 |
| | |
| Catchwords: | MIGRATION – construction of cl 8.1.1(1)(d) of Direction 110 – whether the clause is confined to identification of the impact of offending on an individual or class of individuals – whether Administrative Review Tribunal erred in considering generalised harm from commercial quantity drug trafficking – held no error – the clause permits consideration of generalised and wide impact of offending – application dismissed. |
| | |
| Legislation: | Migration Act 1958 (Cth) ss 501, 501(3A), 501CA, 501CA(4)

Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA cll 8.1.1, 8.1.1(1)(d) |
| | |
| Cases cited: | Disorganized Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 280 CLR 515

Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516

Plaintiff M1/2021 v Minister for Home Affair s [2022] HCA 17; (2022) 275 CLR 582 |
| | |
| Division: | General Division |
| | |
| Registry: | Victoria |
| | |
| National Practice Area: | Administrative and Constitutional Law and Human Rights |
| | |
| Number of paragraphs: | 34 |
| | |
| Date of hearing: | 18 March 2026 |
| | |
| Counsel for the Applicant: | Mr M Kenneally |
| | |
| Solicitor for the Applicant: | Kindra Migration Lawyers |
| | |
| Counsel for the First Respondent: | Ms J Lucas |
| | |
| Solicitor for the First Respondent: | Sparke Helmore Lawyers |
| | |
| Counsel for the Second Respondent: | The Second Respondent did not appear |
ORDERS

| | | VID 1103 of 2025 |
| | | |
| BETWEEN: | THI KIM LOAN LO

Applicant | |
| AND: | MINISTER FOR IMMIGRATION AND CITZENSHIP

First Respondent | |
| | ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | MCELWAINE J |
| DATE OF ORDER: | 26 MARCH 2026 |
THE COURT ORDERS THAT:

1. The Amended Originating Application is dismissed.

2. The applicant is to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1 The applicant’s Amended Originating Application contends that the Administrative Review Tribunal committed three jurisdictional errors when it determined to affirm a decision of the Minister’s delegate not to revoke the mandatory cancellation of her visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth).

2 The applicant is a citizen of Vietnam. She arrived in Australia on a student visa in 2009. Later she was granted a Class BS (subclass 801) Partner visa. In November 2019, she pleaded guilty to one charge of trafficking in a drug of dependence in a quantity not less than a large commercial quantity, was convicted and sentenced in the County Court of Victoria to 13 years imprisonment, with a non-parole period of 8 years. She remains incarcerated. On 26 June 2020, her visa was mandatorily cancelled: s 501(3A) of the Act. Thereafter, she made representations that the revocation should be cancelled. She failed to convince the Minister’s delegate to do so. In May 2025, she applied for review in the Tribunal.

3 At a hearing before the Tribunal the applicant was legally represented. For extensive reasons published by a General Member on 17 July 2025, the delegate’s decision was affirmed.

4 The first jurisdictional error contention is that the Tribunal misunderstood or misapplied clause 8.1.1(1)(d) of Direction No. 110 - V isa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA. As is well-understood, cl 8 sets out the primary considerations, including for present purposes:

(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:

…

(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.

5 The Tribunal found the applicant’s offending to be very serious when addressing the first part of cl 8.1.1. There is no contention of error in that finding. In fact, the applicant accepted that her offending was at least serious before the Tribunal. In context, the Tribunal placed much reliance on the sentencing remarks of Judge Allen. His Honour found the applicant and her co-accused former partner to be the most serious of the multiple persons who were charged. The Tribunal set out the circumstances of the applicant’s offending in detail, relying heavily on the sentencing remarks: [69]-[85]. The Tribunal at [81] extracted the following from the remarks:

Ms Lo, you know what a terrible crime it was you committed. Drugs destroy people’s lives. They destroy families, they destroy children. In so many ways people frequently die, as a result of drug overdoses, and goals are full of people who are there because they have become drug addicts. You knew people who were drug addicts. Your first husband was one but you did not stop to think about these things when you were engaged in these activities. I know you have thought a lot about them since.

It is by reason of this terrible crime that you will now spend more years in gaol, in what are circumstances of unusual hardship. I accept and acknowledge that you are now truly repentant and you want to change your life, and although it will be difficult for you because you will probably have to rebuild your life in Vietnam, I expect that you can and will do this as well…

6 Judge Allen earlier referenced the likelihood of cancellation of the applicant’s visa and deportation.

7 The context for those remarks was identified by the Tribunal in the findings about the circumstances of the applicant’s offending from [70]. In summary, the applicant was arrested as part of a major police operation concerning the negotiation, purchase and transportation of a large quantity of fluoroamphetamine. The applicant was “actively involved and encouraged the participation of others” in the criminal enterprise. The quantity of drugs was 25.88 kg. The applicant was involved in moving the drugs from Sydney to Melbourne. She implicated a Ms Nguyen in doing so who was naïve and vulnerable. Despite the arrest of Ms Nguyen, the applicant continued in her course of criminal activities comprising the negotiation and purchase of precursor chemicals and the formation of the plan to distribute the drugs. At [76] the Tribunal found:

The Tribunal notes that despite the arrest of Ms Nguyen and TD Nguyen, the Applicant made the deliberate decision to continue with her drug trafficking activities. She would have been alert to the fact that Victoria Police were investigating the activities of others closely related to her, but nonetheless persisted in those activities.

8 The finding that is challenged at [82] is:

The Tribunal has considered the impact of the Applicant’s offending. As noted by the sentencing judge drugs destroy lives. The Applicant knew people who were drug addicts including her first husband who was the father to her two daughters. The impact of trafficking drugs cannot be understated, and the sentencing judge was aware of this impact. The Tribunal agrees that the Applicant’s conduct had very grave consequences. The Tribunal has had regard to the impact of the Applicant’s offending when considering the nature and seriousness of her conduct (paragraph 8.1.1 (1) (d)).

9 The applicant contends that the Tribunal committed jurisdictional error in that finding. In short, on a proper construction of the Direction, cl 8.1.1(1)(d) is confined to individual or limited class victim impact and not general social harm from identified offending. The error is that the Tribunal did not identify or make any finding about the impact of the applicant’s offending on individual victims or a limited class of victims by reference to available information where the applicant had been afforded procedural fairness.

10 Mr Kenneally for the applicant developed the argument as follows. The clause is concerned with specific victim and family impact, not to inherent or abstract harm that may be associated with an offence type. That flows from the conditional engagement of this consideration that is “where information in this regard is available” which is relational to the identification of victims of offending or other conduct and their family. The text and structure presuppose the existence of case-specific information. What is required is the identification of a person or persons affected by the offending or the conduct. Without such identification there can be no meaningful assessment of the impact of the offending or other conduct.

11 The submission continued that structurally, the clause is concerned with a more focused inquiry than the inherent seriousness of offending which is addressed pursuant to clause 8.1(1) which requires decision-makers, when considering the protection of the Australian community, to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and, 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. Further, clause 8.1(2) requires that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. And then by clause 8.1.1(1) decision-makers must generally consider the nature and seriousness of the non-citizen’s criminal offending. If cl 8.1.1(1)(d) “merely permitted a restatement of the general harm of drug trafficking, it would add little to those considerations”. Finally, the clause is only engaged where the non-citizen has been afforded procedural fairness. Decisions pursuant to ss 501 and 501CA are subject to procedural fairness and therefore the express requirement to afford procedural fairness in this clause serves no discernible purpose if it is concerned “only with the general harm from the type of offence”.

12 In contrast, Ms Lucas for the Minister submits the clause does not prohibit consideration of generalised harm in appropriate cases, drug offending being one. The applicant’s construction is unduly narrow. The Tribunal identified the information relied on being the extracted part of the sentencing remarks and there is nothing expressly or by necessary implication in the drafting that requires a causal link between offending by a non-citizen and a readily identifiable victim or limited class of victims and with it a requirement for case specific impact information.

13 I reject the applicant’s construction of the clause. The principles applicable to the construction of the Direction are well-understood. It is a type of subordinate legislative instrument, such that the general principles applicable to primary legislation apply: Disorgani zed Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 280 CLR 515 at 14. One commences with the text read in context with the purpose of the provision. Context is considered at the first stage. See generally Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362 at [4] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ.

14 Reading the Direction as a whole in context, the requirement to have regard to the impact of the offending on any victims of offending or other conduct is not logically confined to the identification of an individual victim or a limited class of victims. Clause 5.2 sets the Principles framework “within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation” and the factors that must be considered in making that decision. From there, relevantly the Principles speak to the safety of the Australian Community as “the highest priority” (2); non-citizens who engage in criminal conduct should expect to forfeit the privilege of staying in Australia (3); and Australia has a low tolerance of any criminal or other serious conduct by those holding a limited visa (5). Principles (7) and (8) each speak to the “nature” of the conduct which may be so serious that even strong countervailing considerations do not justify revoking a mandatory cancellation. The Principles do not require a narrow impact assessment.

15 Turning next to the primary considerations at cl 8, one sees reinforcement of the point that the safety of the community is the highest priority of the Australian Government. From there when considering the nature and seriousness of the offending a decision-maker must have regard to the matters at (a)-(i). The categories are not mutually exclusive. The only limitation is the carve out at (c) for some of the specified types of crime at (a) and (b) and where the sentence imposed is not to be considered.

16 Each of the sub-clauses at cl 8.1.1 are matters to be considered directed to the nature and seriousness of the conduct in the context of the protection of the community. The community includes the subset of identifiable victims, or a class of victims, of offending by a non-citizen where the impact can be considered at a granular scale if the information relevant thereto is available and the non-citizen has been afforded procedural fairness. But this is no reason to limit the impact on victims’ consideration to either class. The purpose the clause serves is victim impact across all types of offending: that is the nature and seriousness of all types of offending or other conduct by a non-citizen considered to assess the primary consideration of protection of the Australian community from harm.

17 Addressing next the text, there is no textual or contextual reason to narrow this consideration as submitted for the applicant. The purpose is broad; it applies to all types of offending and other conduct which includes offending that has no immediate or direct victim impact. The present case is the paradigm. The applicant was convicted of trafficking a large commercial quantity of a drug of dependence. Judge Allen made the obvious point, that the Tribunal adopted at [81], to the effect that trafficking a commercial quantity of drugs involves no victim. The harm that follows is when the drugs are supplied to the end user. Within cl 8.1.1(1)(d) the impact of the applicant’s offending was on many victims, not simply “a” victim. The clause speaks to “any victims”, not an identifiable individual or class of individuals.

18 The potential reach of the text is limited only by the availability of information about the impact and the procedural fairness requirement. Information can be specific, such as in the case of victim impact statements submitted as part of the sentencing process. But there is no reason to so confine it. There is no contextual reason why the noun does not have the ordinary and natural meaning. The Macquarie Dictionary (3 rd ed) gives as the first meaning of information: knowledge communicated or received concerning some fact or circumstance. Thus, the design of the Direction is to require a decision-maker to have regard to any relevant information about the impact of the offending by a non-citizen. An impact may be direct or indirect. The clause is concerned with all identifiable impacts and is not constrained by a narrow cause and individual effect analysis. A reading of the clause as the applicant submits has the effect of excluding a large range of broad scale offences that do not have identifiable impacts on any victim or class of victims. There is no apparent contextual or purpose justification for confining the clause in that way. Apart from drug trafficking offences, there is the example of taxation fraud that I raised with counsel during submissions and where the victims are all taxpayers who end up paying more for those who defraud the system. On the applicant’s argument that type of impact could not be considered under cl 8.1.1(1)(d). There is no logical reason for such an outcome.

19 In answer to the last point, Mr Kenneally submitted that broad scale impacts are to be considered more generally under cl 8.1.1, or when considering the harm that would be caused by re-offending (cl 8.1.2(1)) or the cumulative effect (cl 8.1.1(1)(f)). I do not agree. Just because the impact of offending or other conduct may be considered under one or more clauses of the Direction is no basis to isolate and limit the victim impact consideration to identifiable victims or a class of victim under cl 8.1.1(1)(d): “The same facts may be relevant to multiple different considerations”: Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at [42], the Court.

20 Nor do I accept Mr Kenneally’s submission that, because decisions under ss 501 and 501CA are already subject to a procedural fairness obligation, the separate procedural fairness requirement in the clause serves no discernible purpose if applicable to a general harm offence. The error in that submission is the premise that the explicit reference to procedural fairness has the effect of carving out the impact consideration by confining it to individual victims or a limited class of victims. To the extent that this part of the clause has work to do (Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116; (2023) 298 FCR 516 at [120], the Court) it only serves to reinforce the general obligation. It is not a tool of discrimination which operates to separate out offending and other conduct where the harm may be more widespread or indirect.

21 For these reasons, the Tribunal did not err at [82] when consideration was given to the general impact of drug trafficking, by reference to the sentencing remarks of Judge Allen. Ground 1 fails.

22 Ground 2 contends that the Tribunal failed to consider, gave an unduly narrow construction to or otherwise misconstrued cl 9.2 of the Direction regarding the extent of impediments the applicant may face if removed to Vietnam. The argument that is put is the applicant claimed she may be owed non-refoulement obligations:

Discrimination arising from her drug conviction would prevent her from subsisting in Vietnam. The applicant also made a clearly articulated argument that – stigma, shame and adverse treatment due to her conviction, and her long absence from Vietnam – were impediments to her establishing and maintaining basic living standards under para 9.2 of the Direction.

23 Ms Lucas in her written submissions correctly summarises how this was put in the representations, statement of contentions and submissions, which I adopt:

In her lengthy Statement of Facts Issues and Contentions dated 11 June 2025 (AB 432-433), the applicant under the heading “Other Considerations” raised both representations under “legal consequences” for the purpose of Paragraph 9.1 and “Extent of Impediments If Removed” under Paragraph 9.2. In particular, in addressing Paragraph 9.2, the applicant claimed that if sent back to Vietnam “ she will most likely face significant economic hardship that threatens her capacity to subsist.” (S ubmissions at [173]) and further that, “ Due to her offending, [the applicant] has expressed concerns of bringing shame to her family and being an embarrassment to the wider community. If returned to Vietnam, [the applicant] may be subject to adverse treatment for her conviction and crimes of drug trafficking committed in Australia.” (S [175]).

In the applicant’s reply submissions dated 2 July 2025, the applicant’s representatives stated (AB 535):

If removed from Vietnam, Ms Lo would face significant impediments. She has no viable support network there, no employment prospects, and has not lived in Vietnam for over 15 years (since she was 19 years old). She suffers from underlying psychological conditions stemming from years of abuse, which would be exacerbated by forced removal and family separation.

The separation from her children would not only harm the children but would also severely impact her mental health, likely triggering a relapse of depression and anxiety. There is no suggestion that adequate mental health services or familial supports exist in Vietnam for her integration.

24 The Tribunal at [191], when addressing the legal consequences of the decision under cl 9.1 of the Direction, recorded that the applicant’s position was that she may seek asylum under the complementary protection criteria and that it had been argued in her favour that she:

may face discrimination and/or shame by the wider community in Vietnam as a convicted drug offender and that she may encounter significant hardship which may threaten her capacity to subsist. It is submitted that there may be a ‘potential’ for a non-refoulement obligations to be engaged and as a consequence this other consideration weighs moderately in favour of revocation.

25 The Tribunal noted at [193] that the applicant had raised potential non-refoulement issues “on the basis that she may face discrimination which would threaten her capacity to subsist because she has a conviction for drug offending”. The Tribunal continued:

The Applicant has also raised further [non-refoulement] obligations under the extent of impediments other consideration. The Applicant has submitted that she will likely face severe economic hardship that will threaten her capacity to subsist. The Respondent submits that the Applicant’s claims in this regard are general in nature, lack detail and are not supported by corroborating evidence.

26 The Tribunal then found at [195]:

The Tribunal has considered the potential [non-refoulement] obligations raised by the Applicant in her written submissions. The Tribunal has decided that consideration of these obligations should be deferred until a protection visa application is made and the non-refoulement obligations can be considered under that process. The Tribunal otherwise acknowledges and has had regard to the Applicant’s concerns with regards to potential discrimination and economic hardship she alleges she may face upon return to Vietnam. The Tribunal has also had regard to the intended legal consequences that a non-revocation decision would have on the Applicant. Considering these matters, the Tribunal has decided to attribute this other consideration moderate weight in the Applicant’s favour.

27 Next the Tribunal moved to consider the extent of impediments if removed pursuant to cl 9.2 of the Direction. At [199] the Tribunal again recorded the applicant’s argument that if returned to Vietnam “she will likely face significant economic hardship that threatens her capacity to subsist”, explaining the applicant’s submission that she would not be able to rely on her parents and brothers for financial assistance and she did not wish to continue to be a burden on her family. Then there is the finding that the applicant submits is redolent of error at [201]:

The Tribunal has had regard to the impediments raised by the Applicant. The Tribunal has considered that any claims of economic hardship (as raised in regard to any potential [non-refoulement] obligations) can be properly deferred until the Applicant makes a valid protection visa application. To the extent they are raised [as an] impediment under this other consideration, the Tribunal notes that there is no evidence that the Applicant won’t have access to the same social, medical and economic support that is generally available to citizens of Vietnam even if she does have a prior conviction.

28 This finding must not be considered in isolation from [202], that there is no evidence that the applicant suffers from any physical or mental health conditions and [203] that considering the applicant’s

age, absence of any reported physical or mental health conditions, and the fact she is unlikely to encounter any substantial language or cultural barriers, the Tribunal considers that the extent of impediments she is likely to face would be minimal. There is no evidence to suggest that she would not be able to access the same social, medical and/or economic support that is available to citizens of that country.

29 The error that the applicant submits should be found is that the Tribunal misdirected itself by considering the applicant’s claims of economic hardship could be deferred or alternatively misconceived the content of the clause 9.2 inquiry because it requires an assessment of the practical effect of identified impediments, not merely the parity of formal access to services.

30 I do not accept the submission. The Tribunal was entitled to defer the non-refoulement obligations assessment: Plaintiff M1/2021 v Minister for Home Affair s [2022] HCA 17; (2022) 275 CLR 582 at [28]-[30]. The Tribunal did not defer the applicant’s claims of economic hardship which is clear from the finding at [201] when considering the extent of impediments if removed, which stands separately and apart from the deferment when considering the legal consequences of the decision at [195].

31 The Tribunal at [201] found, contrary to the applicant’s representations and submissions, that there was no evidence to support the claim that she would not have access to the same economic support that is generally available to citizens of Vietnam “even if she does have a prior conviction”. There was no deferral of the economic hardship issue, nor any misunderstanding of the applicant’s claim that she would likely suffer economic hardship due to the stigma of her drug conviction. The Tribunal dealt with the claim and the applicant’s complaint rises no higher than disagreement with the outcome.

32 Ground 3 contends error in how the Tribunal engaged the evaluative weighing process of each consideration. It was faintly pressed in oral submissions. In the written submissions the argument is:

The Tribunal recorded its reasons for its conclusion at [207] – [212] of the reasons. The Tribunal attributed “very heavy weight” to primary considerations one and five, concluded that they outweighed primary considerations three and four, and then separately stated that they outweighed the other considerations. The reasons do not disclose that the countervailing considerations – primary and other considerations - were brought together in combination forming the required state of satisfaction.

33 The submission lacks merit. The Tribunal in these paragraphs stated the overall conclusions. Each flow from the detailed preceding assessments. The Tribunal was careful and meticulous when considering each matter required by the Direction to state the relative weight attached. There are too many paragraphs to mention individually. The ground and the submissions fail at the first hurdle to reveal where the error is to be found. The generalised submission does not mention that the Tribunal, on reading the reasons in their entirety, did address the countervailing considerations and weighed them: strength and nature of ties to Australia ([144]), the best interests of minor children affected by the decision ([181]), the legal consequences of the decision ([196]) and the extent of impediments if removed ([204]). The weighing and balancing exercise that the Tribunal undertook is explained in detail at [207] – [211]. There is no utility in this decision, which on this ground is only of interest to the parties, in setting out the paragraphs. What the Tribunal did was orthodox. This ground fails.

34 The application must be dismissed with costs.

| I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. |
Associate:

Dated:    26 March 2026

Top