Kane v Minister for Immigration and Citizenship - Visa Cancellation Judicial Review, Character Test, Application Dismissed

Original Word Document (105.5 KB) Federal Court of Australia

Kane v Minister for Immigration and Citizenship [2026] FCA 426

| Review of: | Administrative Review Tribunal decision delivered on 1 December 2025 by Senior Member N Burns |
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| File number(s): | NSD 2326 of 2025 |
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| Judgment of: | LEE J |
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| Date of judgment: | 9 April 2026 |
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| Catchwords: | MIGRATION – application for judicial review of decision of second respondent affirming a decision of a delegate of the first respondent not to revoke mandatory cancellation of visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – whether second respondent erred in concluding applicant did not past character test – whether second respondent erred in making a mistake of fact as to the number of the applicant’s convictions – whether second respondent’s decision was legally unreasonable – whether second respondent failed to consider paragraph 5.2(6) of Ministerial Direction 110 – whether second respondent denied applicant procedural fairness – application dismissed

PRACTICE AND PROCEDURE – application for leave to amend originating application – where amended grounds represent attempt by pro bono counsel to articulate all grounds which may provide a basis to allege error – where amendments represent bona fide attempt to give coherent expression to applicant’s case – leave to amend granted |
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| Legislation: | Federal Court of Australia Act 1976 (Cth) s 37M, Pt VB

Migration Act 1958 (Cth) ss 500(6L), 501(3A), 501(7)(c), 501C, 501CA(4), 501CA(4)(b)(ii), 501G(1)

Migration Regulations 1994 (Cth) rr 2.52, 2.52(5), 2.52(6)

Criminal Code 1899 (Qld) s 651

Drugs Misuse Act 1986 (Qld) |
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| Cases cited: | Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113

HLXZ v Minister of Immigration and Citizenship [2026] FCA 52

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 |
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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: | 74 |
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| Date of hearing: | 9 April 2026 |
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| Counsel for the applicant: | Ms A J Merrett |
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| Solicitor for the applicant: | Citation Group |
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| Counsel for the respondents: | Mr A Keevers |
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| Solicitor for the first respondent: | Australian Government Solicitor |
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| Solicitor for the second respondent: | The second respondent entered a submitting notice, save as to costs |

ORDERS

| | | NSD 2326 of 2025 |
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| BETWEEN: | DANA ORMOND TAUNOA TE AM KANE

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

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent | |

| order made by: | LEE J |
| DATE OF ORDER: | 9 APRIL 2026 |
THE COURT ORDERS THAT:

1. Leave is granted to the applicant to amend the originating application.

2. The amended originating application is dismissed with costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

LEE J:

A    INTRODUCTION AND BACKGROUND

1 This is an application for judicial review of a decision of the Administrative Review Tribunal (Tribunal) affirming a decision of the delegate of the first respondent (Minister) not to revoke the mandatory cancellation of her Subclass 444 visa under s 501CA(4) of the Migration Act 1958 (Cth) (Act).

2 The matter comes before the Court in circumstances where, shortly before the hearing, the applicant, having obtained legal representation on a pro bono basis, sought leave to amend her originating application so as to reformulate the grounds upon which the Tribunal’s decision is said to be affected by jurisdictional error.

3 That application for leave to amend was accompanied by an application for an adjournment of the hearing listed for today. I dealt with the adjournment aspect of the interlocutory application on 2 April 2026. There was affidavit evidence before me that the applicant’s present legal advisers spoke to her on 17 March 2026; that detention made giving instructions difficult; that her legal representatives proposed to amend the application subject to her instructions; and that a short adjournment would be requested so an appointment could be made for a psychological assessment to be obtained, together with a report. Discussion also took place about obtaining a full copy of the transcript of the hearing before the Tribunal. The Minister opposed the adjournment and unsuccessfully requested clarification as to how a psychological assessment would be relevant to the judicial review application.

4 When the matter came before me on 2 April, it was not evident to me why it would be consistent with the overarching purpose to adjourn the hearing, given that amended grounds had been drafted and were the subject of submissions, and the lack of any articulated utility in obtaining an assessment of her current psychological condition in the Court fairly resolving the applicant’s proposed amended grounds.

5 More generally, it was necessary for the Court to seek to facilitate the quick, inexpensive and efficient disposition of this proceeding (see s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act)). I noted, however, that if anything emerged during the hearing that caused me to revisit that decision, and if I considered there was any utility in an adjournment, the matter could be revisited following any application for an adjournment made during the hearing. As it turned out today, counsel appearing on behalf of the applicant was able to present her arguments without the need to seek an adjournment.

6 I should note that I have been considerably assisted in relation to this matter by those acting for the applicant. As I have already noted, they accepted instructions on a pro bono basis. The Court is grateful for the assistance it has received from the legal representatives of the applicant (together with the submissions made on behalf of the Minister).

B    Relevant background

7 The applicant is a citizen of New Zealand. She was born in 1991 and first arrived in Australia in September 2003. At the time the matter came before the Tribunal, she was 34 years of age, and hence the material before the Tribunal recorded that she had lived in Australia for about 22 years or so, and that her parents, sister and brothers also resided in Australia.

8 The applicant has a very substantial criminal history. The outline of submissions filed on her behalf on 26 March 2026 sought to summarise that criminal record. For reasons to which I will come, it is necessary to have regard to the criminal history as reflected in the Australian Criminal Intelligence Commission records (contained in the Application Book at pp 40–45). Consistently with the history recorded by the Tribunal, it shows a series of offences dating back over some 15 years.

9 Most recently and relevantly, the applicant entered pleas of guilty and was then convicted before a judge of the Supreme Court of Queensland of offences which included:

• Trafficking in dangerous drugs

• Supplying Schedule 1 dangerous drugs (2 charges)

• Supplying Schedule 2 dangerous drugs

• Possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4

• Possess dangerous drug specified in Schedule 1 or 2

• Unlawful use of motor vehicles, aircraft or vessels - use

• Possessing anything used in the commission of crime defined in Part 2 (3 charges)

• Possessing dangerous drugs

• Possess utensils or pipes etc that had been used

• Possess property suspected of having been used in connection with the commission of a drug offence

• Possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act

• Driving without a driver’s licence while disqualified by a court order

10 The above included summary offences which were dealt with under s 651 of the Criminal Code 1899 (Qld). The applicant was sentenced to an aggregate sentence of imprisonment for four years, suspended for a period of five years after the applicant served 335 days in custody.

11 Following these convictions and the sentence imposed, on 24 January 2025, the applicant’s visa was the subject of a mandatory cancellation pursuant to s 501(3A) of the Act. On 12 February 2025, the applicant made a request for revocation of the cancellation of her visa.

12 I will return below to a number of events that occurred after that request, leading up to the Tribunal affirming a decision of a delegate of the Minister on 1 December 2025, being the decision which is the subject of this judicial review application.

C    The Tribunal’s decision

13 The reasons of the Tribunal are structured in an orthodox way. After having set out the factual background, the Tribunal member turned to the issues on review and determined that the applicant did not pass the character test, for reasons that will already be obvious. The Tribunal member then turned to whether there was another reason why the visa cancellation should be revoked in accordance with s 501CA(4)(b)(ii) of the Act.

14 The Tribunal member accurately noted that, in doing so, regard was required to be had to the primary and other considerations contained in Part 2 of Direction No 110 — Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Direction 110). The Tribunal set out paragraph 6 of Direction 110, which provides that decision‑makers be informed by relevant principles (including paragraph 5.2(6), which provides that: “With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal and other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age”).

15 The Tribunal then turned to the “primary” considerations and dealt, in turn, with protection of the Australian community, risk to the Australian community, family violence committed by the non‑citizen, the strength, nature and duration of ties to Australia, the best interests of minor children in Australia, the expectations of the Australian community, and subsequently other considerations, including the legal consequences of the decision and the extent of impediments if removed.

16 The Tribunal then weighed these considerations and made a decision not to revoke the cancellation. More particularly, when considering the protection of the Australian community, the Tribunal noted it was required to consider the nature and seriousness of the applicant’s conduct to date and the risk to the community if she were to re‑offend.

17 In relation to the applicant’s offending, the Tribunal had regard to the remarks of the sentencing judge in the Supreme Court of Queensland and noted that the applicant had engaged in street‑level trafficking of methamphetamine and cannabis in 2023, and that, in addition, had offered to supply MDMA and GHB on isolated occasions during this period, and had spent time on remand during the trafficking period. The Tribunal recorded the applicant’s concession at the sentencing hearing that she was a drug dealer, and her evidence that although she offered to supply MDMA and GHB, that “did not mean that she went through with it”.

18 It will be necessary to return below to aspects of how the Tribunal dealt with this primary consideration. In addressing risk, the Tribunal observed that the tolerance for risk of future harm becomes lower as the seriousness of potential harm increases, and that, having regard to the applicant’s criminal history, there would be a substantial risk of harm to members of the Australian community if she were to re‑offend. Findings were made about the likelihood of re‑offending which I will return to below. In the end, the Tribunal concluded the consequences to the community if the applicant were to re‑offend would potentially be very serious and that, notwithstanding attempts at rehabilitation, which had not been tested in the community, there remained a “moderate risk” of re‑offending.

19 Turning to family violence, the Tribunal was satisfied the applicant had been convicted of offences constituting family violence and had breached domestic violence orders several times. It characterised that conduct as in the mid‑range, but nevertheless very serious, and notwithstanding rehabilitation efforts not yet tested in the community, it gave this consideration significant weight against revocation.

20 In turning to the strength, nature and duration of ties to Australia, the Tribunal correctly observed the applicant had resided in Australia since 2003 and considered various family relationships. In summary, it accepted she had strong familial ties, particularly with her mother and stepdaughter, and this weighed strongly in favour of revocation. The Tribunal also considered the interests of minor children affected by the decision, and although accepting it would be in their interests for the applicant to remain in Australia, it gave this consideration moderate weight.

21 The Tribunal then considered the expectations of the Australian community by reference to paragraph  8.5 of Direction 110. The Tribunal found the Australian community would expect the visa to remain cancelled and gave this consideration substantial weight against revocation. Other considerations were addressed, which are unnecessary to detail, before the Tribunal weighed all matters.

22 The Tribunal observed that the applicant’s ties to Australia and the best interests of the children weighed in favour of revocation, as did the legal consequences and extent of impediments (given limited weight). Against this, it gave substantial weight to protection of the community, family violence, and community expectations, and was not satisfied there was another reason to revoke the cancellation. Hence the decision was affirmed.

D    Leave to amend

23 The initial originating application for review of a migration decision was filed in December 2025. As I have already noted, after obtaining lawyers, a decision was made to seek leave to amend the originating application, and a draft amended originating application for review of a migration decision was before me at the hearing.

24 As the primary objection made to the application for leave to amend was that none of the proposed grounds disclosed an argument of sufficient merit to justify the exercise of discretion in favour of granting leave, the application for leave to amend fell to be determined in circumstances where the matter had already progressed to hearing, and where, as I have noted, an earlier application for an adjournment had been refused.

25 It is well established that leave to amend is not to be granted as of course. Where a proposed amendment does not disclose an arguable case, or where it would serve only to prolong proceedings without utility, the Court would ordinarily refuse leave. That is because the Court’s processes are not to be engaged in the determination of claims which cannot realistically succeed.

26 That said, in cases of this type, the application of those principles is not mechanical. They are directed to the attainment of justice in the particular case, and the Court must have regard to the circumstances in which the amendment is sought, notwithstanding that the discretion falls ultimately to be exercised by reference to the requirements of Pt VB of the FCA Act.

27 The present case is not entirely typical. As I have already indicated, it was only approximately a month ago that the applicant obtained legal representation, and that representation has been provided on a pro bono basis. It is evident that the amended grounds represent an attempt by counsel to articulate all grounds which might reasonably be thought to provide a basis to allege error on the part of the Tribunal.

28 Although some of the grounds, viewed in isolation, might be thought to have little or no merit, there is a risk that refusal of leave would have the practical consequence that the applicant’s case would be determined on the basis of grounds not formulated with the benefit of legal assistance, and which may not accurately reflect the arguments she now seeks to advance. That consideration carries real weight, although it is not determinative.

29 If all proposed grounds were plainly untenable, that would tell strongly against the grant of leave. But where, as here, the amendment represents a bona fide attempt to give coherent expression to the applicant’s case, on balance, I am satisfied it is appropriate to grant leave to amend. This is a pragmatic decision which ensures the applicant’s case is determined on grounds articulated with the assistance of counsel, rather than on formulations that did not fully capture the arguments now advanced.

E    Consideration

30 There are seven grounds articulated in the amended originating application. Ground Three is no longer pressed. Accordingly, the six grounds requiring consideration are Grounds One, Two, Four, Five, Six and Seven. Grounds Six and Seven can conveniently be dealt with together. Otherwise, I will consider each ground in turn.

E.1    Ground One

31 Ground One was (understandably) only faintly pressed. It contends the Tribunal erred in concluding that the applicant did not satisfy the character test in s 501(7)(c) of the Act. The basis of the contention is that, although the applicant was sentenced on 12 November 2024 to a term of imprisonment of four years, that sentence was suspended. It was submitted that, as a result, the applicant had not been sentenced to imprisonment for 12 months or more, such as to have a “substantial criminal record” within the meaning of s 501(7)(c).

32 The difficulty with that contention is that it is inconsistent with a long line of authority in this Court, including Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113. In that case, Rares J referred to the superficial attraction of the argument that it is odd a person sentenced to periodic detention (or something other than full‑time incarceration where they may spend little or no time in detention) is treated as if they had been incarcerated. Notwithstanding that attraction, his Honour, having regard to the text and structure of s 501 read as a whole, rejected the argument that a person was not sentenced to a term of imprisonment of 12 months or more merely because execution of the sentence was suspended. Nicholas J (at [53]–[114]) dealt with the same argument, and reached the same conclusion. Moore J agreed.

33 The present contention advanced by the applicant is relatively indistinguishable and must be rejected.

E.2    Ground Two

34 Ground Two has several components.

35 The first is that the Tribunal fell into error by making a mistake of fact as to the number of the applicant’s convictions. A summary said to illustrate that alleged error was prepared in the applicant’s submissions. However, that summary appears to have overlooked multiple entries of charges arising out of the same offending episodes.

36 It is clear that the Tribunal understood the nature and extent of the applicant’s criminal history, and no material error existed in the way in which the applicant’s criminal record was considered and evaluated. Insofar as it was contended that the Tribunal erred by finding that the applicant had been convicted “around 10 times” for breach of a particular order, it is apparent that that finding was derived from the applicant’s own evidence given under cross‑examination.

37 The second aspect of Ground Two (which was not developed in oral submissions but was not expressly abandoned) concerns a finding that the applicant’s former partner would have felt fearful as a result of the applicant’s conduct. The Tribunal arrived at this finding having accepted that the applicant had engaged in physical violence, destroyed property, and exhibited aggressive behaviour, including sending abusive text messages. There is nothing unorthodox in the Tribunal drawing an inference that a person subjected to such conduct would have experienced fear. The drawing of reasonable inferences is part of the Tribunal’s fact‑finding function. Evidence in support of an inference need not be direct. A decision‑maker may draw reasonable inferences from material properly before it, provided there is a logical connexion between that material and the inference drawn. No error arises in this respect.

38 The third aspect of Ground Two requires closer consideration. It concerns the Tribunal’s statement in its reasons [at [27]), which suggested that the applicant had been subjected to the maximum penalty under the Drugs Misuse Act 1986 (Qld). The statement of the Tribunal was incorrect. The maximum penalty under that Act is life imprisonment.

39 It was submitted that, by reason of this factual error, the Tribunal fell into jurisdictional error by viewing the applicant’s offending through an “incorrect lens” as involving the imposition of the maximum penalty.

40 The origin of the error appears to have been a sentence in the Minister’s Statement of Facts, Issues and Contentions filed before the Tribunal on 3 November 2025, which incorrectly stated that the maximum penalty had been imposed.

41 When the Tribunal’s reasons are read in context, however, it does not appear that the Tribunal proceeded under a misapprehension as to the sentence actually imposed. The Tribunal had specific regard, in more than one place, to the sentencing remarks. Those remarks explain that the applicable maximum penalty had increased by reason of legislative amendment, and it was that increase which informed the Crown’s submission that a sentence at the higher end of the agreed appropriate range was warranted. An accurate statement of the position was that notwithstanding the applicant had spent 335 days on remand, and had also undertaken some steps relevant to rehabilitation, these facts did not deter the sentencing judge from imposing a sentence at the higher end of the range.

42 Of course, the consideration of the applicant’s trafficking offences was part of the Tribunal’s assessment of the first “primary” consideration, namely, protection of the Australian community. It was clearly open to the Tribunal to characterise the applicant’s offending as very serious. The applicant went so far at the hearing before this Court as to contend that the applicant’s offending should (or must) properly have been characterised by the Tribunal as being “not very serious”. That contention is devoid of merit and must be rejected.

43 Although there was an infelicity in the Tribunal’s remarks, an error will, of course, only be jurisdictional if the error was material to the decision that was made in fact: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (at 327 [7], 329 [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). Not only was the error not material to the ultimate decision made, it was not, in my view, even material to the adjectival finding also reached by the Tribunal as to the proper characterisation of the applicant’s past criminal offending.

44 No aspect of Ground Two demonstrates any error.

E.3    Ground Four

45 By Ground Four, the applicant contends that the Tribunal’s decision was legally unreasonable in the manner in which it considered various aspects of paragraph 8 of Direction 110. This ground was not developed at great length in oral submissions. From the written submissions, it appears to involve an attack on the Tribunal’s conclusion (at [80]) that there remained a moderate risk to the Australian community should the applicant re‑offend, notwithstanding the findings (at [117] and [152]) concerning the strength of the applicant’s family ties in Australia.

46 Properly analysed, the applicant’s submission is, in substance, that the weight given to the findings as to strength, nature and duration of the applicant’s ties to Australia ought to have resulted in a different outcome, and that the decision was therefore manifestly unreasonable.

47 This amounts to an attack on the way the Tribunal weighed competing considerations in the exercise of its discretion. It slips impermissibly into a merits review. There is no error in the Tribunal’s treatment of paragraphs 8.1, 8.2 or 8.3 of Direction 110. The decision was not legally unreasonable in the sense explained in the authorities. Indeed, it was entirely rational, orthodox and predictable in the circumstances revealed in the material before the Tribunal and given the terms of Direction 110. Ground Four is not made out.

E.4    Ground Five

48 I have already indicated above that, as part of its decision-making, the Tribunal made reference to paragraph 6 of Direction 110, which provides that decision-makers be informed by principles in paragraph 5.2 of Direction 110. It will be recalled that paragraph 5.2(6) provides, among other things, that “Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens if they have lived in the Australian community for most of their life, or from a very young age”.

49 The applicant’s counsel noted that the Tribunal’s decision (at [49]–[52]), when considering the nature and seriousness of the conduct to date, did not reveal any express reference to paragraph 5.2(6) of Direction 110. That submission is correct so far as it goes, but this is not to say the paragraph, referred to earlier in the reasons, was somehow discarded thus revealing error. It is also clear, from the terms of paragraph 5.2(6) of Direction 110, that this factor is not elevated to some sort of status as a mandatory consideration.

50 The Tribunal referred to the principle, and after having carefully considered the applicant’s period of residence and ties to the community (in weighing the strength, nature and duration of the applicant’s ties to Australia), proceeded, in an orthodox fashion, to evaluate the community’s apprehended level of tolerance as part of making an overall evaluative assessment. There is no reasonable basis to reach the conclusion that the Tribunal ignored this factor in making findings, particularly in circumstances where there is no evidence to suggest that any submission was made on the point: see HLX Z v Minister of Immigration and Citizenship [2026] FCA 52 (at [46]–[48] per Moore J). It would only be an eye finely attuned to error that would see any difficulty in the way in which the Tribunal member dealt with the relevance of this principle in making the decision under review.

51 Ground Five fails.

E.5    Grounds Six and Seven

52 Finally, one comes to the component of the applicant’s argument that received most focus in oral submissions.

53 The applicant contends that the Tribunal denied the then unrepresented applicant procedural fairness in relying upon a Queensland Corrective Services Risk of Re-Offending Assessment dated 19 December 2023 (2023 report) and, in particular, by denying the applicant the opportunity to obtain current evidence as to her risk of re-offending and rehabilitation.

54 It is worth noting from the outset that, in considering these related grounds, it is evident the Tribunal had regard to the 2023 report, among other evidence, in the context of assessing risk of the applicant re-offending in the future. In this regard, the Tribunal considered various risk factors that had been identified in 2023, and the extent to which the applicant had addressed those risks.

55 In assessing the merit of these grounds which, after all, go to procedural fairness, it is next important to have close regard to the chronology of what occurred prior to the Tribunal hearing and to the statutory regime relevant to the disposition of the applicant’s review before the Tribunal.

56 The history commences on 24 January 2025 with a letter dated the same date and delivered by hand to the applicant, which was the notice of visa cancellation. That document, in its usual form, identified the reasons for the cancellation decision, and set out details as to how the applicant could make representations about revocation of the original decision. The letter included the following:

Further, in accordance with regulation 2.52(5), any document accompanying your representations must be:

(a)    the original document; or

(b)    a copy of the original document that is certified in writing to be a true copy by:

(i)    a Justice of the Peace; or

(ii)    a Commissioner for Declarations; or

(iii)    a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959; or

(iv)    if the copy is certified in a place outside Australia:

(A)    a person who is the equivalent of a Justice of the Peace or a Commissioner for Declarations in that place; or

(B)    a Notary Public.

Under regulation 2.52(6), if a document accompanying the representations is in a language other than English, the document must be accompanied by an accurate English translation.

To help ensure your representations contain all the information and documentation required by regulation 2.52 as specified above (‘the Required Information’), it is recommended that you make your representations by completing the attached Request for revocation of a mandatory visa cancellation under s501(3A) form and sending the completed form to the Department.

57 In accordance with that process, a request for revocation of mandatory visa cancellation form was completed and signed by the applicant (although it was undated). The request was accompanied by a handwritten document which, among other things, said as follows:

Since spending this significant time in prison, I have taken that time to rehabilitate myself and strengthen my mental wellbeing and it is why I can confidently say that revoking the cancellation of my visa would not go to waste or be a decision the Minister would regret.

58 Following those representations, the delegate made the decision and provided a statement of reasons for the decision under section 501C of the Act. Part of that decision dealt with the issue of remorse and rehabilitation, and said as follows:

(b) Remorse and rehabilitation

38.    I accept that Ms KANE has demonstrated a level of responsibility for her conduct, evidenced by her guilty pleas Attachments B, C, D and E. During sentencing, His Honour acknowledged Ms KANE’s guilty pleas, and cooperation with the criminal justice system, which ultimately negated the need for a trial Attachment B.

39.    In her personal representations, Ms KANE demonstrates insight and awareness into her actions and acknowledges the drivers of her offending as being her drug addiction and mental health issues Attachment K. I also acknowledge Ms KANE’s expression of regret and remorse for her actions, and any influence she may have had on others Attachment K. Ms KANE acknowledges the impact her criminality has had on her family and the people in the community, stating that she is ‘well aware drugs ruin lives’ and that she does not want to partake in the ‘destruction’ of people’s lives Attachments J and K.

40.    I acknowledge Ms KANE’s personal representations in which she purports to have spent the time she has been in prison to rehabilitate herself and strengthen her mental wellbeing, undertaking rehabilitation courses and counselling while in custody, with the aim of remaining drug free when released Attachment B and J. I note that whilst in custody, Ms KANE purports to have undergone drug counselling and completed a number of courses aimed at rehabilitation including ‘Turning Point’ and a domestic violence workshop, stating these courses gave her ‘great insight’ Attachments B and K. However, I note with concern that no evidence of undertaking any such courses has been provided to support her claims of rehabilitation; nor has any evidence of receiving treatment for her mental health conditions of depression or anxiety been provided by Ms KANE.

(Emphasis added).

59 On 8 September 2025 and, again, by hand, the applicant was given notification of a decision not to revoke the visa cancellation decision, being a document that provided the statement of reasons and other material, including an information sheet, “How to Apply for Merits Review by the Administrative Review Tribunal”.

60 As I have previously noted, on 3 November 2025, the Minister filed with the Tribunal a Statement of Facts, Issues and Contentions. That document dealt expressly with the likelihood of reoffending, and the statement of reasons stated the following:

Conclusion on risk to community

44.    I have found that Ms KANE’s conduct is very serious and that this type of conduct has the potential to cause physical and/or psychological injury and/or financial harm to members of the Australian community.

45.    I accept that a number of factors, including Ms KANE’s mental health and substance abuse issues, have contributed in part to Ms KANE’s offending behaviour. I acknowledge that Ms KANE has demonstrated remorse and insight into her criminal conduct, identifying her substance abuse and mental health issues as a significant driving factor in her criminal conduct.

46.    Whilst I acknowledge Ms KANE’s claims that she has engaged in rehabilitative measures while in custody, as well as her willingness to continue to engage in further rehabilitative measures if she is released into the community, I note that no evidence of Ms KANE’s participation in rehabilitation courses has been provided. As such, I hold concerns regarding the true extent of Ms KANE’s efforts towards rehabilitation, given the absence of any evidence to support her claims. I remain concerned that Ms KANE’s rehabilitation is in its infancy and has not yet been tested in the community. I remain concerned that in the absence of a continued and sustained effort by Ms KANE towards her rehabilitation including the ongoing treatment of her mental health and substance abuse issues, there remains an ongoing risk to the Australian community that she will reoffend. I remain concerned that should Ms KANE return to substance abuse, she will likely return to criminal offending. I have found that on balance there remains a likelihood that Ms KANE will reoffend.

47.    Further, whilst I acknowledge the support Ms KANE has from her family and consider that the protective factors of family support, stable housing and employment, available to her may serve as motivating factors to reduce the likelihood of further offending, I note with concern, that these protective factors existed before and did not prevent her from repeatedly offending.

48.    I have considered Ms KANE’s history of repeated and persistent offending, breach of judicial orders and escalating criminal conduct. Ms KANE has continued to re-offend in the community despite numerous opportunities afforded to her including probation orders and, community service orders. I am concerned that the judicial imposition of penalties including terms of imprisonment have failed to deter Ms KANE from offending. Taking into consideration the persistent nature of Ms KANE’s offending, and her blatant disregard of judicial orders I have found that on balance, there remains a likelihood that Ms KANE will reoffend.

(Emphasis added).

61 It was against this background that on 14 November 2025, material produced via summons from the Queensland Corrective Services was provided to the Tribunal and the applicant (as recorded in the Tribunal’s reasons) by way of a supplementary hearing book prepared by the respondent. The belated provision of this material to the Tribunal and the applicant was said to have arisen by an “administrative oversight” resulting in the material from Queensland Corrective Services being placed on “a different case file” until shortly before the hearing.

62 The Tribunal (at [10]) recorded that at the start of the hearing on 17 November 2025, both parties confirmed they had received the Queensland Corrective Services’ material. The Tribunal went on to say:

However, to ensure the applicant had sufficient (sic) the applicant give (sic) her evidence to the Tribunal on the second day of the hearing, to which the applicant agreed. By around midday on 17 November 2025 the respondent had provided an electronic copy of a further supplementary hearing book containing relevant material from Queensland Corrective Services to the Tribunal and the applicant. A hard copy was delivered to the applicant and Tribunal that afternoon.

63 Further, at the start of the hearing on 18 November 2025, the applicant confirmed she had received an electronic copy of the further supplementary hearing book and then, at the start of her evidence, said she had written something and asked if she could use it.

64 As I understand it, the submission is that given that the applicant was unrepresented, there should have been some adjournment of the hearing in order to allow the applicant the opportunity of obtaining material that she could place before the Tribunal on the question of rehabilitation.

65 The content of an obligation to provide procedural fairness is, of course, to be assessed by reference to the relevant circumstances. Leaving aside the chronology which demonstrates beyond peradventure that the prospects of rehabilitation were always a highly relevant factor and had earlier been addressed by the applicant, what must not be forgotten is the effect of s 500(6L) of the Act. This provision provides that if the application was made for a review not to revoke a decision to cancel a visa, as in the present case, and the Tribunal has not made a decision within a period of 84 days after the day on which the person was notified of the decision under review in accordance with s 501G(1), the Tribunal is taken to have affirmed the decision under review.

66 It was common ground that this provision required the Tribunal to make a decision by 1 December, if the deeming provision was not to become operative. As it happened, this was the date upon which the relevant Tribunal decision was made (with the hearing having occurred less than a fortnight before).

67 When that consideration is put together with the direct relevance of issues concerning rehabilitation and reoffending that had been evident in communications with the applicant well before the hearing, I am not satisfied that there was any relevant denial of procedural fairness.

68 The initial contention made in written submissions that the applicant was “not given the opportunity to adduce evidence of her current risk of reoffending/rehabilitation and not invited by the [Tribunal] to comment on the [2023 report]” cannot be accepted. It was open to the applicant to say anything she wanted to say about the 2023 report or rehabilitation generally prior to the hearing concluding, and the notion the applicant has somehow lost the opportunity of obtaining updated expert evidence of the applicant’s risk of reoffending and rehabilitation is unrealistic given applicable time constraints and the likely immateriality of any such material given the other findings of the Tribunal.

69 There was no error, of course, in the Tribunal having regard to the risk of reoffending. Further, it is notable that in doing so, the Tribunal did not simply adopt, without any qualification, the 2023 report from Queensland Corrective Services.

70 At [79], the Tribunal noted that there was a “moderate risk” of further reoffending, notwithstanding that the applicant has a lengthy criminal history for a range of offences, and that she scored 19 out of 22 (with 22 being the highest risk of reoffending) in the relevant risk assessment contained in the 2023 report.

71 The Tribunal expressly accepted the fact the applicant had undertaken some programmes in prison, including with respect to drug use and domestic violence, and appears to have remained largely abstinent from drugs since her last return from custody and has made efforts to do better (albeit qualifying this by saying that this had not been tested in the community).

72 It was notwithstanding these efforts of the applicant that the Tribunal came to the conclusion that the applicant’s risk remained elevated and her progress was precarious, given that it was highly contingent on her remaining substance-free and being stable in terms of her mental health and relationship stressors.

73 None of these conclusions were findings that were not well open to the Tribunal on the material, and no jurisdictional error is evident as alleged.

F    Conclusion and orders

74 It follows from the above that none of the amended grounds demonstrate jurisdictional error. The amended originating application for review of the migration decision must, for the reasons I have explained, be dismissed with costs.

| I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. |
Associate:

Dated: 13 April 2026

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