Federal Court of Australia

Le v Minister for Immigration and Citizenship [2026] FCA 774

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time within which the applicant may apply for a remedy to be granted in the exercise of the Court’s original jurisdiction under s 476A(1)(b) of that Act in relation to the applicable migration decision be extended to 19 January 2026.

2.    A writ of certiorari issue quashing the decision of the second respondent made on 8 December 2025 to affirm a decision of the delegate of the first respondent not to revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year visa.

3.    A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review according to law.

4.    The first respondent pay the applicant’s costs of the proceeding in a fixed sum to be determined by a Registrar of this Court if not agreed.

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 an extension of time and for judicial review of a decision of the Administrative Review Tribunal (Tribunal) made on 8 December 2025. The Tribunal affirmed a decision of a delegate of the first respondent (Minister), made on 15 September 2025, not to revoke the mandatory cancellation of the applicant’s Class BB Subclass 155 Five Year Resident Return visa.

2    The applicant, Ms Thi Duyen Le, is a citizen of Vietnam. She first arrived in Australia in December 2003 and was granted the visa the subject of the present proceeding in 2017.

3    In April 2023, the applicant was sentenced in the District Court of Queensland to a term of imprisonment of seven years and six months for trafficking in cannabis over a period of approximately 11 months. As a consequence of the sentence imposed, her visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Act).

4    The applicant thereafter sought revocation of that cancellation pursuant to s 501CA of the Act. A delegate of the Minister determined, in September 2025, not to revoke the cancellation. The applicant sought review of that decision in the Tribunal.

5    There was no dispute before the Tribunal, and there is no dispute before this Court, that the applicant did not pass the character test. The question before the Tribunal was whether there was “another reason”, within the meaning of s 501CA(4)(b)(ii) of the Act, why the cancellation decision should be revoked.

6    The Tribunal correctly identified that task. It also correctly recognised that, by operation of s 499(2A) of the Act, it was required to comply with “Direction No 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 110).

7    The applicant was legally represented before the Tribunal, and a statement of facts, issues and contentions was filed on her behalf. In that document, it was contended that the consideration concerning legal consequences was “not relevant”: respondent’s submissions (RS) (at [10]); applicant’s submissions (AS) (at [12]).

8    The Minister filed a statement of facts, issues and contentions in reply, which identified the legal consequences of a decision affirming the delegate’s decision as including liability to removal from Australia as soon as reasonably practicable, and detention under s 189 of the Act in the meantime. The Minister submitted that it was open to the Tribunal to afford this consideration neutral weight: AS (at [13]); RS (at [10]).

9    For the reasons which follow, and notwithstanding the lack of assistance given to the Tribunal by the legal representative who appeared for the applicant below, I am required to conclude that the Tribunal’s reasoning disclosed jurisdictional error.

B    STATUTORY FRAMEWORK

10    Section 501(3A) of the Act relevantly requires:

501 Refusal or cancellation of visa on character grounds

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

11    Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more and s 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record.

12    Section 501CA(3) requires the Minister, after making a decision under s 501(3A), to give the person written notice of the decision and invite the person to make representations about revocation of the original decision. Section 501CA(4) provides:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

…

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

13    The discretion under s 501CA(4) is enlivened if the person whose visa has been mandatorily cancelled makes representations in accordance with the invitation issued under s 501CA(3), and the Minister is satisfied that the person passes the character test or that there is “another reason” why the decision should be revoked: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (at 594, 598, [14]–[15], [22] per Kiefel CJ, Keane, Gordon and Steward JJ).

14    As the majority explained in Plaintiff M1, the decision-maker must “read, identify, understand and evaluate the representations”, and may then “sift them” and attribute such weight as is thought appropriate: (at 598–599 [24] per Kiefel CJ, Keane, Gordon and Steward JJ). The “requisite level of engagement” must occur within the bounds of rationality and reasonableness: Plaintiff M1 (at 599 [25]).

15    Section 499(1) permits the Minister to give written directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with such a direction. The Tribunal was therefore bound to comply with Direction 110: Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 (at 603 [41]); Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 (at 221 [64] per French CJ, Kiefel, Bell and Keane JJ). Direction 110 required decision-makers exercising power under s 501CA(4) to take account of a number of so-called “primary” (sic) and other considerations, where relevant.

16    Paragraph 9 of Direction 110 provided:

9. Other considerations

…

(1)    In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a)    legal consequences of the decision;…

17    Paragraph 9.1 provided, relevantly, that decision-makers should be mindful that unlawful non-citizens are liable to removal under s 198 “as soon as reasonably practicable” and, in the interim, to detention under s 189.

C    THE TRIBUNAL’S REASONS

18    The Tribunal’s reasons reveal a detailed consideration of the matters identified in Direction 110 by reference to the headings in that Direction. They are a highly structured set of reasons.

19    The Tribunal found that the applicant’s offending was very serious. It emphasised the nature of the offending, her direct participation in drug trafficking over an extended period, and the substantial sentence imposed. It concluded that the protection of the Australian community weighed against revocation: RS (at [14]–[15]).

20    The Tribunal further concluded that the expectations of the Australian community weighed very heavily against revocation: RS (at [19]).

21    Against those matters, the Tribunal gave extensive consideration to the applicant’s family circumstances and ties to Australia. It accepted evidence concerning the effect that removal would have upon her husband, daughter and other members of her family. It accepted that the consequence of removal would be profound. It ultimately concluded that the applicant’s ties to Australia weighed heavily in favour of revocation: RS (at [16]–[17]).

22    The present proceeding concerns one aspect only of the Tribunal’s reasons: its treatment of the “legal consequences of the decision” identified in para 9.1 of Direction 110.

23    The critical part of the reasons appears under the heading “Other consideration 1 – legal consequences of the decision”: AS (at [14]). The Tribunal said:

155.    Paragraph 9.1 of Direction 110 requires me to take into account the legal consequences of the decision, relevantly in relation to this matter, as regards revocation of the mandatory cancellation of the Applicant’s visa.

156.    The Applicant’s written submissions include that this consideration is not relevant. The Respondent’s written submissions include that, having regard to the Applicant’s submissions, that it is open to afford this consideration neutral weight.

157.    I acknowledge the Applicant’s submissions in relation to this consideration. I nonetheless recognise the legal consequences for the Applicant of a decision not to revoke the mandatory cancellation of her visa as including detention of indeterminate length, limited opportunity to apply for another visa while in Australia and permanent exclusion from Australia as being significant and real consequences for the Applicant. This is particularly in circumstances where her husband, son, daughter and stepson are Australian citizens. Nonetheless, given these are intended legal consequences, and given the Applicant’s submissions, I conclude that Other consideration 1 is neutral in terms of revocation of the original decision to mandatorily cancel the Applicant’s visa.

(Emphasis in original)

24    The Tribunal then considered the remaining other considerations. It found that impediments if removed weighed minimally in favour of revocation and that the impact on Australian business interests was neutral: RS (at [22]).

25    In its conclusion, the Tribunal identified the competing considerations. Primary consideration 1, being protection of the Australian community, weighed against revocation. Primary consideration 3, being the strength, nature and duration of the applicant’s ties to Australia, weighed heavily in favour of revocation. Primary consideration 5, being the expectations of the Australian community, weighed very heavily against revocation. Other consideration 1, being legal consequences, was neutral.

D    EXTENSION OF TIME

26    The applicant seeks an extension of time pursuant to s 477A of the Act. The Minister does not oppose the making of an order extending time.

27    I am satisfied that it is necessary in the interests of the administration of justice to extend time.

E    THE PARTIES’ SUBMISSIONS

28    The applicant advances two related arguments.

29    First, the applicant submits that the Tribunal acted irrationally or illogically by taking into account her own erroneous submission that legal consequences were irrelevant. The submission was erroneous because Direction 110 expressly required legal consequences to be taken into account where relevant.

30    Secondly, and more substantially, the applicant submits that the Tribunal misconstrued the task imposed by s 501CA(4) and Direction 110 by treating the legal consequences of non-revocation as neutral because they were “intended legal consequences”. In support of that submission, the applicant relies upon Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273 (at [14], [16]–[21], [25]–[35], [42]); Doan v Minister for Immigration and Multicultural Affairs [2025] FCA 1411 (at [22]–[41]); and Williams v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 341 (at [65]–[69]).

31    As to the first argument, the Minister submits that: (a) the Tribunal’s reasons must be read fairly and as a whole, not with an eye keenly attuned to error; (b) the Tribunal understood the consequences of non-revocation and dealt with their practical human impact elsewhere in the reasons, including in its consideration of the applicant’s family ties; and (c) there was no irrationality or illogicality in the Tribunal taking into account the way in which the case was advanced before it, including the absence of positive submissions by the applicant that legal consequences weighed in favour of revocation.

32    As to the second limb of the argument, the Minister submits that Singh, Doan, Williams, Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 and Da Costa Junior v Minister for Immigration and Multicultural Affairs [2025] FCA 1423 are all fact-specific decisions and do not establish that jurisdictional error is disclosed merely because a decision-maker refers to consequences as “intended” or affords legal consequences neutral weight.

F    Consideration

33    The applicant’s first argument may be dealt with relatively shortly. I do not consider that the Tribunal’s reference to the applicant’s submissions independently discloses jurisdictional error.

34    The Tribunal plainly did not accept the applicant’s submission that the legal consequences were irrelevant. To the contrary, at [155] the Tribunal expressly identified that para 9.1 of Direction 110 required it to take into account the legal consequences of the decision. At [157], it said that it “nonetheless” recognised the legal consequences for the applicant of a decision not to revoke the mandatory cancellation of her visa.

35    Read fairly, the Tribunal’s reference to the applicant’s submissions is no more than an acknowledgement of the manner in which the case had been advanced before it. The Tribunal was entitled to note that the applicant had submitted that the consideration was not relevant, and that the Minister had submitted that it was open to afford the consideration neutral weight.

36    The Tribunal, understandably, did not accept the misconceived contention that the consideration was irrelevant. It proceeded to address it.

37    The critical issue lies elsewhere. It concerns the Tribunal’s conclusion that the legal consequences consideration should be treated as neutral because the consequences identified were “intended legal consequences”.

38    In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, Allsop CJ and Katzmann J explained that the decision-maker must take into account the Act and its operation, including the statutory consequences of the decision. Their Honours said (at 4–5 [9]):

The Minister must take into account the Act and its operation in making a decision; to make a decision without taking into account what Parliament has prescribed by way of legal consequence is to fail to take into account the legal framework of the decision. At a functional level this is reinforced if the legal consequences of the decision are important in human terms: indefinite detention pending removal.

39    As Rangiah J observed in Singh (at [21]), the obligation is not merely to consider the legal consequences of a decision, but to do so reasonably, rationally and logically and on a correct understanding of the law, citing Plaintiff M1 (at 599 [25]).

40    In Singh, his Honour was concerned that the Tribunal’s reasoning revealed an assumption that Parliament intended the adverse legal consequences and thereby, in substance, intended the adverse outcome. His Honour concluded that such reasoning involved a misconstruction of s 501CA(4), because the legal consequences only follow if the Tribunal decides not to revoke the cancellation decision: (at [33]–[35]).

41    The Minister correctly points out that the present case is not identical to Singh. The Tribunal here demonstrated, throughout its reasons, an appreciation that removal was contingent upon the exercise of the discretion conferred by s 501CA(4). It also referred elsewhere to the practical consequences of removal and gave substantial weight to those matters in considering the applicant’s ties to Australia.

42    Those matters are not irrelevant. They are part of the reason why it is necessary to read the Tribunal’s reasons as a whole and not to isolate one phrase from its context. But they do not, in my view, answer the core of the applicant’s complaint.

43    Importantly, the Tribunal expressly described the legal consequences of the decision as regards revocation of the mandatory cancellation of the Applicant’s visa as having “significant and real consequences for the Applicant”. The question is what the Tribunal then did with its evaluative assessment or conclusion that those consequences were “significant and real”.

44    The Tribunal concluded that the legal consequences consideration was “neutral” because the consequences were “intended legal consequences” and because of the applicant’s submissions. In my view, that reasoning discloses an error.

45    The vice in the reasoning is not a failure to appreciate the consequences flowing from a non-revocation decision. Rather, the vice lies in the explanation given by the Tribunal for why consequences acknowledged to be “significant and real” ultimately counted for nothing in the evaluative exercise required by s 501CA(4).

46    Paragraph 9.1 of Direction 110 required the Tribunal to consider the legal consequences of the decision. The evident purpose of that consideration is to require decision-makers to confront and evaluate the legal consequences to the applicant flowing from a refusal to revoke the cancellation decision.

47    The fact that such consequences arise under the statutory scheme cannot, of itself, explain why they should be treated as neutral. If the circumstance that the consequences are contemplated by the legislation were sufficient to deprive them of operative significance, the consideration would largely be emptied of substantive content.

48    The legal consequences identified in para 9.1 are necessarily consequences created by statute. To treat that characteristic as the reason why they should attract no weight is circular. It substantially undermines the purpose of the consideration itself.

49    That is, in substance, what occurred here. The Tribunal accepted that the consequences were significant and real. It then neutralised those consequences because they were consequences contemplated by the statutory framework.

50    I do not accept that this was merely a permissible attribution of weight. Of course, the weight to be given to a consideration is for the administrative decision-maker. But this was not simply a case in which the Tribunal, having evaluated the legal consequences in the applicant’s circumstances, gave them little or no weight. The problem is that the Tribunal explained its conclusion by reference to a consideration which could not rationally perform the work assigned to it. The consequences were treated as neutral because they were statutory consequences. That is the circularity.

51    As I have noted, the reasons were carefully structured. It is to the Tribunal’s credit that it is possible to discern from the reasons what is being considered, and where it is being considered. The present assertion of error is not answered by saying that the Tribunal addressed family hardship elsewhere. The hardship to family members was addressed under the separate consideration concerned with the strength, nature and duration of ties to Australia. The legal consequences identified at [157] were consequences for the applicant herself: detention of indeterminate length, limited opportunity to apply for another visa while in Australia, and permanent exclusion from Australia.

52    I accept, of course, that the Tribunal was not required to repeat itself; nor was it required to give legal consequences determinative weight. But having identified those consequences as “significant and real”, the Tribunal could not lawfully render them neutral merely because they were consequences contemplated by the statutory scheme.

53    The Minister relied heavily on Stoneley and Da Costa Junior. Those cases demonstrate that a Tribunal does not necessarily err merely because it recognises that the relevant consequences are consequences contemplated by the statutory scheme; however, neither case establishes that a tribunal may treat consequences which it has identified as “significant and real” as neutral for that reason alone.

54    That explanation is what gives rise to the error. It is not a matter of searching for error with undue vigilance. It is a matter of taking the Tribunal’s reasons as they are expressed.

55    I should also add that Williams is consistent with this analysis. Longbottom J there accepted that the legal consequences required by the Direction must be considered in a way that involves a real evaluative engagement with those consequences in the context of the statutory task: (at [65]–[69]). The point is not that legal consequences must always favour revocation. The point is that they cannot be neutralised simply by reference to their statutory origin.

56    I should emphasise, however, that the Tribunal’s reasons were otherwise careful and detailed. I have considered whether the present challenge involves little more than close textual analysis of a single paragraph in reasons which, read as a whole, demonstrate a thorough engagement with the applicant’s circumstances. However, the difficulty is that the legal consequences consideration was expressly addressed and expressly treated as neutral for the reason given. Once the Tribunal accepted that the consequences were significant and real, the circumstance that they were consequences contemplated by the statutory scheme did not logically explain why they should be treated as carrying no weight. In those circumstances, notwithstanding the evident care with which the Tribunal approached its task, the error is established.

57    Further, and not unrelated to the last point, I note that the Tribunal was not assisted by the way the case was advanced on behalf of the applicant. The Tribunal recorded that the applicant’s position was that the legal consequences consideration was not relevant. That submission was plainly incorrect. Direction 110 required the Tribunal to consider the matter, and it was not open to the parties, by concession or otherwise, to relieve the Tribunal of that obligation. The Tribunal was required to perform its statutory task according to law irrespective of the way in which the case was presented. The fact that the Tribunal received suboptimal assistance on the point does not alter the correctness of the legal analysis.

G    Materiality

58    It remains necessary to address materiality. An error will be jurisdictional only if it is material, in the sense that there is a realistic possibility that the decision could have been different had the error not occurred: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 (at 524 [38]); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (at 327, 329, 332–333, 335, [7], [15], [29], [38]).

59    The Tribunal itself identified the legal consequences for the applicant as including detention of indeterminate length, limited opportunity to apply for another visa while in Australia, and permanent exclusion from Australia. It described those consequences as “significant and real”. Those words matter.

60    Although one might speculate it would not have mattered to the ultimate outcome if the error had not occurred, this was not a case in which I can be satisfied the legal consequences were incapable of affecting the evaluative balance. The Tribunal’s conclusion involved a weighing of considerations: some weighed against revocation; some weighed heavily in favour of revocation. The legal consequences were treated as neutral only because of the impugned reasoning.

61    The submission as to a lack of materiality was only faintly pressed. No doubt this is because of the present state of the authorities, including AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103; (2024) 304 FCR 586 (at 597 [51]). In that case, the Full Court observed that where an error infects part of such an evaluative process, a reviewing court should be cautious about reconstructing the decision-making process and concluding that the result would necessarily have been the same. The point is not that the applicant was bound to succeed before the Tribunal; it is that, had the identified legal consequences not been neutralised for an impermissible reason, there was a realistic possibility of a different outcome.

62    On balance, I cannot reach the necessary level of satisfaction that there is no realistic possibility that a lawful evaluation of those significant and real consequences could have affected the conclusion as to whether there was “another reason” to revoke the cancellation decision. The error was therefore material.

H    Conclusion

63    At the risk of repetition, it is worth emphasising by way of conclusion that the present error does not lie in any failure by the Tribunal to appreciate the practical consequences of a decision not to revoke the cancellation; nor does the reasoning disclose the assumption criticised in Singh that Parliament intended the particular outcome in the applicant’s case. The difficulty arises because having expressly identified detention of indeterminate duration, limited prospects of obtaining another visa and permanent exclusion from Australia as “significant and real” consequences of a non-revocation decision, the Tribunal treated the consideration as neutral because those consequences were consequences contemplated by the statutory scheme. The fact that a consequence is a consequence contemplated by the Act explains why it arises. It does not, without more, explain why a consequence accepted to be significant and real should be treated as carrying no weight in the evaluative exercise required by s 501CA(4) and Direction 110.

64    It follows that a writ of certiorari should issue quashing the decision of the Tribunal made on 8 December 2025. A writ of mandamus should also issue requiring the Tribunal to determine the applicant’s application for review according to law, and the first respondent should pay the applicant’s costs of the proceeding in a fixed sum to be determined by a Registrar of this Court if not agreed.

Associate:

Dated: 18 June 2026