Federal Court of Australia

Xue v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 682

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs of the proceedings.

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 transcript

JACKMAN J:

1    This is an application for judicial review of a decision of the respondent, (the Assistant Minister) made on 21 July 2025 under s 501BA(2) of the Migration Act 1958 (Cth) (the Act). By exercise of that power, the Assistant Minister set aside a decision of the Administrative Appeals Tribunal (the Tribunal) to revoke the cancellation of the applicant’s resident return (class BB) (subclass 155) visa (the Visa), and cancelled the Visa.

2    The applicant is a 58 year old citizen of China. He first arrived in Australia on 3 March 1989, as the holder of a student visa. On 16 June 1998 he was granted the Visa, and has resided in Australia since that time.

3    The applicant has a lengthy criminal history commencing in 1999. On 20 June 2008, the applicant was convicted in the Sydney District Court for his most serious charge, namely Supply prohibited drug >= commercial quantity-SI. The applicant was sentenced to a period of imprisonment of 13 years and six months, with a non-parole period of 10 years. The applicant then continued to offend between 23 April 2020 and 5 August 2024.

4    On 8 February 2017, a delegate of the Minister for Immigration cancelled the applicant’s Visa under s 501(3A) of the Act. On 13 February 2017, the applicant sought revocation of the cancellation. On 26 April 2018, another delegate of the Minister for Immigration decided under s 501CA(4) of the Act, not to revoke the cancellation of the Visa.

5    On 3 May 2018, the applicant applied to the Tribunal for review of the delegate’s decision. On 20 July 2018, the Tribunal set aside the delegate’s decision and the cancellation decision was revoked.

6    On 9 May 2025, the Department wrote to the applicant notifying him of the intention to consider setting aside the Tribunal’s decision and cancelling the Visa under s 501BA(2) of the Act, and invited him to provide any submissions by 17 June 2025. On 25 May 2025, the applicant appointed a representative, and provided a statement and supporting character statement in response.

7    On 21 July 2025, the Assistant Minister decided, using his power under s 501BA of the Act, to set aside the Tribunal’s decision and substitute it with a decision to cancel the applicant’s Visa.

8    The portion of the Assistant Minister’s reasons set out under the subheading “Legal consequences of the decision” is as follows:

78. I am aware that under s198 unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable, and in the meantime are liable to detention under s189 provided that removal is practicable in the reasonably foreseeable future, noting also that s197C(1) provides that, for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.

79. However s197C(3) provides that s198 does not require or authorise removal of a person to a country in relation to which a 'protection finding' has been made in the course of considering a protection visa application by the person, except in the circumstances set out in s197C(3)(c).

80. A 'protection finding', as defined for the purpose of s197C(3) of the Act, made in the course of considering a protection visa application from a non-citizen, means that Australia will not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The Act, in particular the concept of 'protection obligations', reflects Australia's interpretation of its non-refoulement obligations and the scope of such obligations that Australia is committed to implementing.

81. If relevant circumstances change, a reassessment of a protection finding can be made under s197D. A decision that the person was no longer a person in respect of whom a protection finding [sic – is made] would mean that the person no longer engaged Australia's non-refoulement obligations and that s197C(3) no longer operated in respect of the person.

82. I have considered Mr XUE's claims that he would face substantial harm from Chinese authorities if removed to China Attachment AD. Mr XUE claims that there is a real prospect that he will be re-prosecuted by the Chinese authorities for his offending and that he would be subject to a substantial period of imprisonment and the subject of torture, inhumane treatment, degrading punishment and the arbitrary deprivation of his life Attachment AF. Mr XUE claims that he was involved in illegal activities of Sin Wah which sourced drugs from China, and his concerns are further heightened because the drugs he supplied in Australia came from China and that he fears the Chinese authorities will view his criminality as a part of organised international drug activities Attachment AF.

83. I also note that, in Mr XUE's most recent statement, he claims that he is a practising Christian and that he reads the Bible regularly. Mr XUE states that unregistered Christian worship is closely monitored in China, and can attract harassment and harm, and he believes he would face discrimination or worse if returned Attachment AJ and Attachment AK.

84. I note that the AAT found there was insufficient evidence to make a finding regarding nonrefoulement obligations in relation to Mr XUE Attachment D. Nevertheless, I accept that the nature of the claims outlined above indicates a potential for Australia's international non-refoulement obligations to be engaged in relation to Mr XUE.

85. It is open to Mr XUE to make an application for a Protection visa. During the processing of any such application, Mr XUE's claims regarding Australia's non-refoulement obligations would be fully assessed. Pending any future full assessment of relevant claims by Mr XUE, I have not given this consideration weight in my consideration of visa cancellation under s501BA.

86. I have also noted that, before the AAT, Mr XUE's claimed intention was to apply for a protection visa if his visa is cancelled and that he will be detained in immigration detention pending the outcome of any such application Attachment AF. I note that submissions were made on behalf of Mr XUE before the AAT that, if he were required to make an application for a protection visa, he may be indefinitely detained in immigration detention pending the outcome of the protection visa application, which may take a notable period of time, which should be drawn to account. In any event, any decision by Mr XUE to make an application for a protection visa, and any period of immigration detention he may face whilst that application is pending, is not a direct legal consequence of my decision. I have therefore not given this submission any weight in my consideration.

87. As I have set out above, if Mr XUE does not hold a visa, he is liable to be removed as [sic – soon as] reasonably practicable, and detained in the meantime. I acknowledge that there will necessarily be some interference with Mr XUE's liberty should he be detained. Given Mr XUE is not the subject of any protection finding, I do not consider that my decision will lead to his ongoing or indefinite detention, especially in light of the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37. I note that if it became apparent that there was no real prospect of Mr XUE being removed to China in the reasonably foreseeable future, one possible outcome would be the grant of a Bridging (Removal Pending) visa to him, which would come with visa conditions different to those his current visa is subject to. However, given Mr XUE is not the subject of any protection finding, whether he would or would not be granted a Bridging (Removal Pending) visa does not need to be decided as part of this decision.

88. Pending any future full assessment of relevant claims by Mr XUE, I have not given this consideration weight in my consideration of visa cancellation under s501BA.

9    In addition, the Assistant Minister stated at [2] that the applicant does not hold and has no outstanding application for a protection visa or any other visa prescribed by the Migration Regulations 1994 (Cth).

10    In his originating application, the applicant advances two grounds by which he contends the Assistant Minister’s decision is affected by jurisdictional error and should be set aside.

11    The first ground is that the Assistant Minister’s decision is vitiated by jurisdictional error by acting on a misunderstanding of the law, on the basis that the Assistant Minister (at [86] of his reasons) “appears to have treated Mr Xue’s prospective protection visa application, and any detention pending that application, as legally irrelevant on the basis that they were ‘not a direct legal consequence’ of the s 501BA cancellation decision”. He submits that this is “too narrow a conception of the legal consequences of cancellation”.

12    The applicant submits that the Assistant Minister’s reasons misunderstand the practical and legal position created by the cancellation itself, which was to place Mr Xue in the position of being liable to removal from Australia, notwithstanding his asserted fear of harm in China, or applying for a protection visa and remaining in immigration detention while that process was determined. He submits that it was the cancellation decision that created the statutory predicament, and that the application would be a foreseeable and legally conditioned response to the loss of his Visa, not an unrelated voluntary act. He submits that the Assistant Minister was required to consider the real and reasonably foreseeable legal consequences of cancellation, and that prolonged or indeterminate detention pending the determination of protection claims was such a consequence. He draws attention to his claims for potentially engaging Australia’s non-refoulement obligations, as referred to at [82]–[84] of the Assistant Minister’s reasons. In oral submissions, the position was put more strongly to the effect that Mr Xue’s potential application for a protection visa was an inevitable consequence of the Assistant Minister’s decision. I reject that submission. The evidence and the circumstances generally do not rise to the level of inevitability.

13    The applicant also submits that there is an inconsistency between the Assistant Minister, on the one hand, not giving any weight to detention pending a protection visa application because it was said not to be a direct legal consequence (at [86]), and on the other hand:

(a)    accepting that if Mr Xue became an unlawful non-citizen, he would be liable to removal and detention (at [78]); and

(b)    accepting that there would necessarily be some interference with Mr Xue’s liberty while detained, and referring to the possibility that if removal had no real prospect in the reasonably foreseeable future, a Bridging (Removal Pending) visa might be granted.

14    The applicant submits that the error was material, because the potential visa pathway, if he wished to advance his protection claims, was a relevant legal consequence which was capable of weighing against cancellation.

15    I reject the first ground for the following reasons.

16    I accept that the Assistant Minister was required in the exercise of the discretion under s 501BA(2) to take into account the legal consequences of his decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (Allsop CJ, Buchanan and Katzmann JJ). However, as the Assistant Minister submits, there are recognised limitations to that requirement. The Full Court has stated by reference to a related statutory power (s 501(3)) that the Minister is required to have regard to the legal consequences of the decision that include the “direct and immediate statutorily prescribed consequences” the Act attributes to the decision: Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84] (Kenny, Flick and Griffiths JJ). In other cases, courts have expressed the obligation as being to consider the “practical consequences” or “practical realities”, rather than merely the legal consequences of the decision: Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [107] (North J), [129] (Kenny and Perry JJ); Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 (Rano) (Feutrill J) at [4]–[6]. The Full Court has also said (in a case concerning a national interest decision under s 501A(2)) that the obligation is to consider legal consequences that are “inevitable or certain” and not those that are “merely probable or arguable”: BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; (2023) 298 FCR 609 at [101] (Perry J, Bromwich and Kennett JJ agreeing).

17    There is some debate over the extent to which the proximity of a certain event occurring with the exercise of the statutory power affects the decision-maker’s obligation to consider certain legal consequences: see DLJ18 v Minister for Home Affairs [2019] FCAFC 236; (2019) 273 FCR 66 at [15] (Flick J), [25]–[26] (Bromberg J), [85] (Snaden J). As the Assistant Minister submits, that debate will be resolved by reference both to the particular statutory power in question (and the need to have regard to the subject matter, scope and purpose of the power) and the practical realities of the case at hand: see Rano at [6].

18    In the present case, the applicant’s argument is that the Assistant Minister erred in failing to take into account consequences that were contingent on the applicant taking certain steps in applying for a protection visa, which the applicant had not decided he wished to take or advance. The Assistant Minister submits, and I accept, that those steps were separate from the Assistant Minister’s decision to cancel the Visa.

19    Similar reasoning was employed by the High Court on review of a delegate’s decision under s 501CA(4): Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378. In that case, the plaintiff had argued that the delegate had failed to consider the legal consequences of the decision in foregoing consideration of the consequences of the plaintiff (who was affected by the judgment of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137) being granted a Bridging Visa R. The High Court (constituted by Gageler CJ, Edelman and Jagot JJ) inferred that the delegate was aware of how the statute operated in respect of a person such as the plaintiff and held at [19] that:

... the statutory scheme provided for the performance of the delegate’s functions and exercise of the delegate’s powers under s 501CA(4) of the Migration Act, (the power of the Minister to revoke the cancellation decision) separately from the performance of other functions and exercise of other powers of the Minister to grant the BVR in accordance with reg 2.25AB(2) of the Migration Regulations, subject to conditions including the mandatory conditions.

20    In related circumstances concerning a s 501BA(2) decision, Wheatley J held that a necessary legal consequence will not need to be considered where it depends on “speculation as to whether or not an application for a particular kind of visa might be made” by way of an additional step which is a step for an applicant to undertake: Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2025] FCA 1342 at [88].

21    The applicant submits that “cancellation would expose Mr Xue to detention by operation of the Migration Act, and any protection visa application would be a foreseeable statutory consequence of that cancellation in circumstances where he had advanced protection-related claims”. The Assistant Minister in this case, in fact, did take into account that if the applicant “does not hold a visa, he is liable to be removed as reasonably practicable, and detained in the meantime”: [87]. The Assistant Minister submits, and I accept, that that was as far as the Assistant Minister needed to go in taking into account the prospect of the applicant’s ongoing detention as a consequence of a cancellation decision.

22    The Assistant Minister did not need to take into account whether a protection visa application would be a foreseeable statutory consequence. As the Assistant Minister submits, a protection visa application was a possible future step the applicant might have taken, but it was not a step he was compelled to take, as the applicant’s written submissions acknowledge (see, for example, paragraph 28). The Assistant Minister could only have speculated about such things, and it will rarely be possible to discern from the subject matter, purpose, and scope of the relevant statute that matters of speculation are mandatorily to be taken into account: Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216 at [18] (Perram J). Such consequences pertaining to a future visa application, which it was entirely within the discretion of the applicant to make or not make as he might see fit, were not consequences that were required to be taken into account in this case as a jurisdictional requirement under s 501BA(2).

23    Accordingly, the first ground should be rejected.

24    As to the second ground, the applicant contends that the Minister’s power under s 501BA(2) was spent because the power is subject to an implied temporal limitation requiring that it be exercised within a reasonable time after the Tribunal’s decision. The applicant properly concedes that he cannot succeed on this ground in light of the Full Court’s judgment in Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19 (XMBQ). However, he maintains the ground and asks the court to make a finding of fact that the Assistant Minister’s decision was not made within a reasonable period of time, on the basis that the Full Court’s judgment in XMBQ is the subject of an application for special leave to appeal to the High Court.

25    I reject the applicant’s proposed approach to the second ground. It would, in effect, require the Assistant Minister now to adduce evidence to explain the time taken since the Tribunal’s decision for the Assistant Minister to make his decision, in circumstances where the state of the law binding on me is that s 501BA(2) is not subject to a temporal limitation. Whatever the position of the relevant Minister may have been in other cases, in light of the evidence which had been served in those other cases, this matter was held in abeyance in order for the Full Court to deliver judgment in XMBQ, and that has now occurred. The Assistant Minister submits, and I accept, that he should not be expected to mount an evidential case to address a legal argument that is presently not available to the applicant, and which depends on the prospect that the High Court might grant special leave to appeal in XMBQ and in due course allow the appeal.

26    Accordingly, I make the above orders.

Associate:

Dated:    28 May 2026