Federal Court of Australia

Chen v Minister for Immigration and Citizenship [2026] FCAFC 83

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant, Mr Minghua Chen, is a Chinese National. He first came to Australia in 2005 as the holder of a Class BB Subclass 155 Five Year Resident Return visa issued under the Migration Act 1958 (Cth).

2    On 4 August 2023 Mr Chen was convicted in the District Court of Queensland for 10 offences relating to the unlawful importation of tobacco. As a consequence of that offending and the sentences imposed, Mr Chen has a “substantial criminal record” within the meaning of s 501(7)(c) of the Act, and so cannot pass the character test in s 501(6).

3    A delegate of the then named Minister for Immigration and Multicultural Affairs cancelled Mr Chen’s visa on character grounds in the mandatory exercise of a power conferred under s 501(3A) of the Act (cancellation decision), and a different delegate refused to exercise a power to revoke the cancellation decision under s 501CA(4) of the Act (non-revocation decision). The non-revocation decision was affirmed by the Administrative Review Tribunal in the exercise of its powers of review.

4    Mr Chen commenced an application for judicial review of the Tribunal’s decision. This is Mr Chen’s appeal from orders of the primary judge dismissing that application: Chen v Minister for Immigration and Citizenship [2025] FCA 1301.

5    His single ground of appeal is to the effect that the primary judge erred in failing to find that the Tribunal misconstrued the sentences imposed upon him to such an extent that it constructively failed to exercise the power to revoke the cancellation decision.

6    For the reasons that follow, there is no merit in the ground of appeal. It follows that the appeal must be dismissed.

The sentences imposed upon Mr Chen

7    Mr Chen was sentenced to a term of imprisonment for each of the 10 offences. The sentencing judge ordered that the 10 terms of imprisonment be served concurrently. As correctly stated in Mr Chen’s written submissions, the sentences were as follows:

Count 1 (importing tobacco products): 2 years 6 months imp. concurrent

Count 2 (possessing tobacco products etc): 2 years imp. concurrent

Count 3 (importing tobacco products): 2 years 6 months imp. concurrent

Count 4 (importing tobacco products): 2 years 6 months imp. concurrent

Count 5 (importing tobacco products): 2 years 6 months imp. concurrent

Count 6 (possessing tobacco products etc): 2 years imp. concurrent

Count 7 (dealing in proceeds of crime etc): 3 months imp. concurrent

Count 8 (possessing tobacco products etc): 2 years imp. concurrent

Count 9 (importing tobacco products): 2 years 6 months imp. concurrent

Count 10 (importing tobacco products): 2 years 6 months imp. concurrent

8    The sentencing Judge said that Counts 6, 7 and 8 were aggravated by the fact that they were committed whilst Mr Chen was in the community on conditional liberty, having been charged for the offence forming Count 2. The Judge said that Mr Chen had played an integral part in the importation of tobacco and that the planning and organisation had occurred over a period of time with a significant number of importations occurring over less than two months. Her Honour further found that the offending had involved the use of false identification and multiple post office boxes in different names, indicating a level of sophistication. The Judge described the offending as “objectively serious” such that a sentence other than imprisonment would not be appropriate.

9    The sentencing Judge concluded that the offending constituted a course of conduct and it was therefore appropriate that the terms of imprisonment be served concurrently. The Judge fixed a non-parole period of 15 months. Thus, it is not correct to say that there was a single sentence of two years and six months imprisonment. Rather, the several terms of imprisonment were ordered to be served concurrently, with the consequence that Mr Chen would be released from prison after the expiry of two years and six months, unless he became eligible for release on parole after 15 months.

The Tribunal’s reasons

10    In determining whether to revoke the cancellation decision, the Tribunal was obliged to follow a direction issued by the Minister under s 499 of the Act, titled Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110). It required that the Tribunal have regard to “primary considerations”, the first of which was the protection of the Australian community from criminal or other serious misconduct (Consideration 1). It necessitated that the Tribunal consider both the nature and seriousness of Mr Chen’s conduct and the risk to the Australian community should he commit further offences or engage in other serious conduct: Direction 110, [8.1.1], [8.1.2].

11    The Tribunal set out the terms of imprisonment resulting in Mr Chen’s failure to pass the character test in a table as follows (footnotes excluded, emphasis added):

12    For the purposes of Direction 110, the Tribunal characterised Mr Chen’s offending as being of a very serious nature and so concluded that Consideration 1 weighed against the revocation of the cancellation decision.

13    Mr Chen alleges error in the reasoning culminating in that conclusion, specifically the portions emphasised below (italics and underlining in original, emphasis added):

27.    Third, the sentences imposed on this Applicant most certainly speak to the “very serious” nature of his offending. In terms of cumulative head – sentencing time: a period of four years and nine months were imposed on him at his singular sentencing episode on 4 August 2023. But that is not an entirely accurate description of the extent of the sentences imposed on him. This is so because in two of the sentencing entries, the words “on each charge’ appear above each of the head sentences. For his head sentences for the “import tobacco products with the intention of defrauding the revenue” offence, he was convicted of six charges and for each of those six charges the court imposed a custodial period of two years and three months thus giving a total head sentencing term of approximately 15.5 years.

28.    For the “knowingly convey or possess tobacco products imported with the intent to defraud the revenue” conviction, the Applicant was convicted of three charges and for each of those three charges the court imposed a custodial term of two years thus giving a total head sentencing period of six years. To these two periods must be added the term of three months imposed for a conviction on one charge of “dealing in proceeds of crime worth $10,000 or more”. When added together these three figures result in total head custodial time of 21 – 22 years. The extent of these three sentences imposed on the Applicant engage the auspices of paragraph 8.1.1(1)(c) of the Direction which facilitates a finding that the totality of the Applicant’s offending in this country has been of a “very serious” nature.

29.    Fourth, the auspices of paragraph 8.1.1 (1) (e) are engaged because it can be safely found that the Applicant’s conduct has been frequent and could even be said to be demonstrative of an increasing level of seriousness over the course of its duration. The offending for which the Applicant was charged and convicted was committed across a two month period in August and September 2021. During that two month period, the Applicant committed a total of 10 offences. This is plainly frequent offending. Its relatively short duration does not preclude a finding that it betrays a trend of increasing seriousness. This is so because the Applicant initially committed portion of the offences for which he was convicted. Following his detection for committing those initial offences, he was placed on bail and released into the community. While on bail and in the community he proceeded to commit further offences. To my mind, this pattern of unlawful conduct is demonstrative of a trend of increasing seriousness because the Applicant committed his initial offences, was bailed on them and returned to the community. But he nevertheless continued to offend following his initial detection and placement on bail. This frequency of offending and the increasing trend of its seriousness engages paragraph 8.1.1(1)(e) of the Direction to now militate strongly in favour of a finding that the Applicant’s unlawful conduct in this country has been of a “very serious” nature.

14    The Tribunal went on to describe the offending to be “very serious” (at [33]). For the purposes of Direction 110, it concluded that “some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable” (at [34]), further explaining (at [37]):

37.    Were the applicant to reoffend as he has done in the past, the Australian community would again have to bear the not – insignificant impost on its policing, judicial sentencing and custodial resources in the form of either prison or immigration detention. I am therefore satisfied (and I find) that if the Applicant were to re – commit this past offending, the nature of the harm it would represent to either individual victims and/or the Australian community more generally, would range from (1) undue consumption of the community’s law enforcement, judicial sentencing and custodial resources; (2) a denial of essential revenue to Australian governmental entities necessary for the ongoing provision of essential and other services to the Australian community; and (3) actual physical and even fatal harm to the users of those tobacco products. I will also find, pursuant to paragraph 8.1.2 (1) of the Direction, that the harm resulting any [sic] recommission of the offending for which the Applicant was sentenced on 4 August 2023 is so serious that any risk of this recommission would be unacceptable to the Australian community.

15    That finding was one of a number of matters informing the Tribunal’s conclusion that Consideration 1 was to be given “very heavy” weight in favour of affirming the non-revocation decision (at [94]).

NO APPEALABLE ERROR

16    To succeed on his application for judicial review, it was necessary for Mr Chen to demonstrate that the Tribunal’s decision was affected by jurisdictional error: Act, s 474; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

17    Among other things, he alleged that the Tribunal had “misconstrued” his sentence by proceeding from the incorrect premise that he had been sentenced to a term of imprisonment of 21-22 years. As can be seen from the Tribunal’s reasons, that period was described as the “total head custodial time” (at [28]). The Tribunal had earlier described a subset of the sentences as “giving a total head sentencing term of approximately 15.5 years”.

18    Mr Chen also alleged that the Tribunal mischaracterised his conduct as “frequent” and “demonstrative of an increasing level of seriousness over the course of its duration”. He submitted that in making that finding, the Tribunal failed to have regard to the conclusion of the sentencing Judge that there was a single course of conduct over a short period of time such that it was not open to find that there was frequent offending of increasing seriousness.

19    At first instance (as on this appeal), it was common ground that (subject to considerations of materiality) a decision-maker exercising the power conferred by s 501CA(4) of the Act may commit jurisdictional error by acting upon a materially inaccurate understanding of the sentence imposed on a non-citizen.

20    The primary judge rejected the contention that the Tribunal had proceeded on a misunderstanding of the offences actually imposed. Her Honour also rejected the contention that the Tribunal had erred in characterising the offending as demonstrating an increasing level of seriousness. Contrary to Mr Chen’s submissions on this appeal, neither conclusion is affected by appealable error.

21    It is convenient to deal with the two submissions separately.

Alleged misunderstanding of the actual sentence

22    In Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 (Black CJ, Sackville and Sundberg JJ), the Minister had before him an erroneous statement that a non-citizen had been sentenced to a term of imprisonment for nine months when the actual sentence was a term of imprisonment for three months (at [15]-[16], [59]). Chief Justice Black confirmed that the failure to give the requisite consideration to the non-citizen’s true criminal record amounted to a jurisdictional error (at [7]), then added (at [8]):

… the conclusion that there may be jurisdictional error if the Minister fails to take into account an accurate statement of a person’s criminal record is perhaps reinforced by the circumstance that for the purposes of the character test defined in s 501(6) and (7) of the Act, and applicable to s 501A, the concept of “substantial criminal record” is defined, primarily, by reference to the sentence or sentences imposed upon a person. The situation provided for in para (e) of the definition in s 501(7) relates to acquittal on the grounds of unsoundness of mind or insanity but, otherwise, sentences are at the heart of the definition.

23    His Honour went on to characterise the error as material because there existed a rational possibility that the non-citizen’s risk of recidivism may have been assessed differently and hence a possibility that the Minister’s discretion may have been exercised in favour of revocation (at [29]).

24    In Clark v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1039 at [52], Needham J held that the Minister committed jurisdictional error by having regard to a sentence of imprisonment imposed upon a non-citizen without regard to the outcome of an appeal from that sentence (at [46]-[48]). The outcome of the appeal was that the sentence was set aside and the non-citizen had been resentenced to three years’ probation. Accordingly, the Tribunal had erred in concluding that the most recent of the non-citizen’s offences had resulted in the most significant custodial sentence. Her Honour concluded that the established error was material in accordance with the principles discussed by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ) and hence a jurisdictional error:

55     It lies on the Applicant to satisfy the Court, on the balance of probabilities, that the error in fact occurred (which as noted above I am satisfied on that ground) and that the error was material (LPDT at [12]). The threshold of materiality is not demanding or onerous (LPDT at [14]). Unless I am affirmatively persuaded that the outcome would inevitably have been the same had the error not been made, then the materiality threshold has been met.

56    There is a deal of strength in the First Respondent’s argument. It is entirely possible that the Tribunal may, even with the benefit of the correct criminal record in front of it, come to the same decision as to cancellation. However, there is a realistic possibility that the Tribunal may, having regard to the correct criminal record of the Applicant, have arrived at a different outcome. This is so because of the express reliance on the seriousness of the sentences in addition to the underlying criminal conduct before the Tribunal, and the Tribunal at [26] noting that it had regard to the custodial sentences as being a “reflection of the objective seriousness” of the conduct. Without a custodial sentence, the Tribunal may have regarded the criminal conduct of the Applicant in a different light. It seems to me that the error in this case – determining the cancellation of a visa without taking into account the correct criminal record – is such that the outcome is consistent with the error having affected the decision (see LPDT at [15]). It is not for this Court to enter into a process of merits review and to determine what the alternative outcome may have been had the Tribunal taken into account the correct criminal record of the Applicant (see LPDT at [36]). It is enough, as the Applicant has done, to demonstrate that the discretion under s 501CA(4)(b)(ii) could have been exercised differently. The Applicant has met the threshold of materiality in this case.

25    Mr Chen argued that the Tribunal in the present case inaccurately stated that he had been sentenced to a “total head custodial time of 21-22 years”, and that the inaccuracy must have materially contributed to its characterisation of his offending as “very serious”. He submitted that the Tribunal had erroneously ignored the circumstance that the sentencing Judge had concluded that concurrent sentences should be imposed, so as to reflect the circumstance that the offences constituted a single course of conduct. He submitted that the overall criminality was reflected in his actual custodial time of two years and six months, comprised of the concurrent sentences, and not the total sum of those sentences. He further submitted that in accordance with the principles discussed in Lu and Clark, that misunderstanding necessarily involved jurisdictional error and that the primary judge was wrong to conclude otherwise.

26    The primary judge disposed of this argument as follows:

39    The applicant does cavil with the third reason the Tribunal gave for being satisfied that his conduct was very serious, and that is the finding at [27]-[28] of the Reasons, where the Tribunal added together each of the sentences imposed on each count and said “When added together these three figures result in total head custodial time of 21-22 years”. Clearly the Tribunal misunderstood the technical meaning of the term “head sentence” as it is used in the criminal law, being the “total period of imprisonment imposed” on a person. Nevertheless, it is tolerably clear that the Tribunal was entirely cognizant of the fact that the applicant was to serve all terms of imprisonment concurrently. Read fairly, the Reasons convey the incontrovertible fact that the sentencing judge determined that six counts required a sentence of two years and six months on each count; three counts required a sentence of two years on each count; and one count required a sentence of three months only. The applicant drew the Court’s attention to the sentencing principles set out in R v Nagy [2004] 1 Qd R 63, to which the sentencing judge had been referred, and which in turn relied on the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610. In the latter case, the High Court was concerned with two counts arising from a single episode when the appellant broke into the victim’s home and beat him. In addressing the principles of concurrent sentencing, McHugh, Hayne and Callinan JJ said at [43]-[45]:

The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.

Does that matter if, as was the case here, an order was made that the sentences be served concurrently?

To an offender, the only relevant question may be “how long”, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

(Footnotes omitted. Emphasis added.)

40     The applicant placed emphasis on the sentence in bold. It is not disputed that the sentencing judge did fix an appropriate sentence for each offence. It is also not disputed that in the present case, unlike in Pearce v The Queen, there was not a single episode. For example, each count involving importation related to a separate and distinct quantity of tobacco. In any event, principles of sentencing are concerned with penology, not with migration law. As the Minister submitted, the learned sentencing judge was concerned with the “totality principle”. This principle enables a court to mitigate “strict justice” in sentencing and focusses on considerations such as the totality of criminality involved, notions of justice, and ensuring an offender is not subject to a “crushing” sentence not in keeping with his or her record or prospects: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 304 per Dawson and Gaudron JJ. Unlike the sentencing judge, the Tribunal was not concerned with these types of considerations. For the purposes of the Migration Act and the Direction made thereunder, the Tribunal was entitled to look at the applicant’s offending as a whole and determine for itself whether or not it considered the applicant’s conduct to be very serious.

27    The primary judge went on to say that it was not to the point that the Tribunal might have misunderstood the technical meaning of the phrase “head sentence”, emphasising that the reasons of a decision-maker were not to be scrutinised with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

28    The primary judge was correct to identify that the Tribunal had used the phrase “head sentence” in a way that did not accord with the terminology of the criminal law. We accept that in a criminal law context, the phrase “head sentence” can refer to the period which an offender is in fact to serve in prison (whether on a single term or multiple terms served concurrently), and in that usage it may distinguish that period from a lesser period after which a person may be eligible for release on parole. In the criminal law context, the phrase is not typically used to refer to the total sum of sentences before the application of principles guiding the discretion to order that multiple terms of imprisonment be served concurrently.

29    However, the task of the Tribunal was not to apply the criminal law. Rather it was to make an assessment of the seriousness of Mr Chen’s offending for the purpose of the exercise of a statutory power governed by administrative law principles. As the primary judge correctly observed, when the Tribunal’s reasons are fairly read as a whole, it is abundantly clear that the Tribunal understood that the sentences were to be served concurrently. By the phrase “total head sentencing term” and “total head custodial time” the Tribunal may be understood to have made an observation of the total of the terms of imprisonment imposed for each discrete offence, not to have proceeded on the wrong footing that Mr Chen was in fact committed to prison for a term of more than 21 years.

30    We otherwise do not consider the Tribunal’s approach to involve jurisdictional error for four reasons.

31    First, the Tribunal was not bound to proceed on an assumption that a single sentence had been imposed upon Mr Chen for the 10 offences, as that is not in fact what had occurred. There were 10 sentences of imprisonment, each sentence reflecting the gravity of each offence. Whether those sentences were to be served cumulatively or concurrently involved different considerations: Pearce v The Queen (1998) 194 CLR 610 at [45] (McHugh, Gummow, Kirby, Hayne and Callinan JJ).

32    Second, as we have said, the Tribunal was aware of the fact that the 10 terms of imprisonment were to be served concurrently. Its use of the phrase “head sentence” or like terminology does not indicate ignorance of that fact.

33    Third, the Act does not require the decision-maker to apply sentencing law principles relating to concurrent sentences when evaluating Consideration 1 in Direction 110. Nothing in the Act or Direction 110 prevents the decision-maker from having regard to each sentence imposed for each offence, notwithstanding an order that those sentences be served concurrently. To the contrary, for the purpose of applying the character test in s 501(6) of the Act, s 501(7A) of the Act requires the decision-maker to ignore any order that multiple sentences be served concurrently. It is as follows:

Concurrent sentences

(7A)     For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example:    A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

34    Fourth, the primary judge was correct to observe that the weight to be attributed to Consideration 1 is a matter solely for the decision-maker and that to review such an evaluation would amount to an impermissible merits review: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J). In determining that weight, the Tribunal was entitled to have regard to the undisputed fact that separate sentences were imposed for each of the 10 offences, and to have regard to their total sum. Expressed another way, the total sum of the sentences was not an irrelevant consideration when applying Direction 110 to the facts and circumstances of Mr Chen’s case.

Frequency and increasing seriousness

35    At first instance, Mr Chen submitted that the Tribunal committed jurisdictional error by characterising his offending as “frequent and could even be said to be demonstrative of an increasing level of seriousness over the course of its duration”. It was submitted that the characterisation involved a misstatement of the facts upon which he had been sentenced.

36    Rejecting that submission, the primary judge said:

41     The applicant also cavils with the fourth reason for the Tribunal’s finding that the conduct was very serious, being the finding at [29] of the Reasons that it was frequent and demonstrative of a trend of increasing seriousness. The applicant submits that there was no trend of seriousness or frequency, given the finding by the sentencing judge that the offending was a single course of conduct committed over 52 days.

42     The Tribunal acknowledged that the offending took place over a period of two months in August and September 2021. During that period, the applicant committed 10 offences. That the Tribunal considered the offending as frequent was an evaluation solely within the purview of the Tribunal. The fact that the sentencing judge sentenced the applicant for a single course of conduct does not affect the Tribunal’s evaluation.

43     Similarly, the Tribunal was entitled to characterise the offences as showing a trend of increasing seriousness. Although counts 6, 7 and 8 were on their face less serious than counts 1 and 2, they occurred whilst the applicant was on bail for the initial counts. As the sentencing judge said, that is a circumstance of aggravation which necessarily makes the later offending more serious. It was entirely within the Tribunal’s purview to conclude that the applicant’s continuing to offend whilst on bail was “demonstrative of a trend of increasing seriousness”.

37    On this appeal, Mr Chen’s argument merely repeated what had been submitted before the primary judge. The submissions did not demonstrate any basis (whether founded in the Act or otherwise) for a conclusion that it was not open to the Tribunal to describe the offending as frequent and as involving an increasing level of seriousness. That description was supported at the very least by the circumstance that three of the offences had been committed at a time when Mr Chen was at liberty in the community having been released on bail for the commission of the offence constituting Count 2. The primary judge was correct to find that the Tribunal had not misunderstood the factual basis for the sentences. We respectfully agree with her Honour’s analysis.

Additional argument

38    Counsel for Mr Chen advanced oral submissions alleging a further jurisdictional error on the part of the Tribunal that had not been advanced at first instance, not been the subject of consideration by the primary judge and not been articulated on the notice of appeal. It was to the effect that by concluding that any risk of future harm to the Australian community was unacceptable, the Tribunal had erected a standard of conduct that could not be reached in any case. We decline to entertain that argument for three reasons: there was no application for leave to raise the argument for the first time on this appeal, there was no explanation for the failure to raise such a contention at first instance and the argument on its face is devoid of merit in any event. In the exercise of the power conferred by s 501CA(4) of the Act, the task of evaluating the risk to the Australian community is specifically dedicated to the decision-maker. It is open to the decision-maker to exercise the power on the basis that any risk of harm to the Australian community that may be caused by any repetition of the non-citizen’s criminal conduct is unacceptable. That is especially so where (as here) the decision-maker has correctly characterised the harm caused by the offending that warranted the cancellation of the visa under s 501(3A) of the Act. Mr Chen’s submissions did not establish that the standard imposed by the Tribunal in the present case would be impossible for any non-citizen to achieve.

39    There will be orders dismissing the appeal with costs.

Associate:

Dated:    12 June 2026