Federal Court of Australia

VPBY v Assistant Minister for Citizenship, Customs and Multicultural Affairs [2026] FCA 1026

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant is to pay the costs of the respondent, as taxed or agreed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    The applicant seeks judicial review of a decision of the respondent (Assistant Minister) to set aside a decision of the Administrative Review Tribunal (Tribunal) made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) and to cancel the applicant’s Bridging A (Class WA) (Subclass 010) visa (Bridging Visa).

B.    Factual Background

2    The applicant is a Chinese citizen and a permanent resident of Hong Kong. She first arrived in Australia on 20 October 2014 at the age of 19. She has lived here since that time.

3    On 26 June 2023 the applicant lodged an application for a Student (Class TU) (Subclass 500) visa (Student Visa). Pending determination of that application the applicant was granted the Bridging Visa.

4    On 24 November 2023, the application was convicted in the District Court of New South Wales of supplying a large commercial quantity of a prohibited drug. She was sentenced to 6 years and 9 months’ imprisonment.

5    On 11 July 2024, the Bridging Visa was mandatorily cancelled under s 501(3A) of the Act.

6    On 6 June 2025, the Court of Criminal Appeal of the New South Wales Supreme Court quashed the sentence imposed on the applicant by the District Court of New South Wales and re-sentenced the applicant to a term of imprisonment of 4 years and 6 months, expiring on 22 August 2027. The applicant was eligible for parole on 22 April 2026.

7    On 11 June 2025, a delegate determined not to revoke the mandatory cancellation of the Bridging Visa. As a result of that decision the applicant’s application for a Student Visa was refused by reason of s 501F(2) of the Act.

8    On 18 June 2025, the applicant applied to the Tribunal for a review of the delegate’s decision. The application for a review was heard on 21 and 22 August 2025. The applicant was represented by counsel at the hearing.

9    On 3 September 2025, the Tribunal set aside the delegate’s decision and revoked the cancellation of the Bridging Visa.

10    On 19 December 2025, the Assistant Minister determined pursuant to s 501BA(2) of the Act to set aside the Tribunal’s decision and cancelled the Bridging Visa.

C.    Legislative framework

11    Section 501BA(2) of the Act provides that the Minister may set aside a decision made under s 501CA to revoke a decision where:

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

(i)     paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c) or;

(ii)    paragraph 501(6)(e); and

(b)     the Minister is satisfied that the cancellation is in the national interest.

12    The term “national interest” is not defined in the Act. In Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352; [2017] FCAFC 107, the Full Court of this Court said at [156]–[158] (Griffiths, White and Bromwich JJ):

There can be no doubt that, in this particular statutory context, the expression “national interest” is, like the expression “public interest”, one of considerable breadth and essentially involves a political question which was entrusted to the Minister. For example, in Pilbara [(2012) 246 CLR 379; [2012] HCA 36] at [42], in the context of construing a statutory discretion which vested a power in the Minister to declare a service under Pt IIIA of the Trade Practices Act 1974 (Cth), where one of the criteria was whether access, or increased access to a service “would not be contrary to the public interest”, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:

It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning [(1947) 74 CLR 492; [1947] HCA 21], when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

(Footnotes omitted and emphasis in original)

We consider that the observations in Pilbara have even stronger force when the relevant statutory expression is the “national interest” (see Plaintiff S156/2013 [(2014) 254 CLR 28; [2014] HCA 22] at [40] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ and Madafferi [(2002) 118 FCR 326; [2002] FCAFC 220] at [89] per French, O’Loughlin and Whitlam JJ).

In our view, it is unnecessary in these cases to determine all issues of principle raised by the judicial review applicants as to the correct construction of the “national interest” and whether it encompasses the best interests of the child. This is because the ground fails on the facts of both cases. We accept the Minister’s submission that it is a matter for the Minister to decide, on the merits of any particular case, what national interest factors are engaged in that case (see Leiataua [(2012) 208 FCR 448; [2012] FCA 1427] at [21] per Jessup J). There is no obligation on the Minister, in determining whether or not to exercise his power under s 501(3), to advert to all and every possible consideration which may inform an assessment of the national interest in the particular case. … Nothing we have said above is intended to deny the established view that the Minister’s satisfaction that cancellation is in the national interest must be a satisfaction which is attained reasonably (see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [167] per Gummow and Hayne JJ, with whom Gleeson CJ agreed and Madafferi at [89] per French, O’Loughlin and Whitlam JJ).

13    The rules of natural justice do not apply to a decision made under s 501BA(2): s 501BA(3).

14    The operation of s 501BA requires a broad evaluative judgment, but this does not mean the power is unconstrained, or free from the constraints of logic and reasonableness: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299 (at [39]–[42] per Charlesworth J).

D.    Decision of the Assistant Minister

15    After addressing the protection of the Australian community and expectations of the Australian community considerations, and having regard to the applicant’s conviction for supplying almost twice the commercial quantify of a prohibited drug, namely methylamphetamine, the Assistant Minister concluded in his statement of reasons (SR) at [70] that it was in the national interest for him to use his discretionary power to cancel the Bridging Visa.

16    The Assistant Minister addressed the risk that the applicant posed to the Australian community at SR [29] to [63]. The Assistant Minister made the following factual findings at [51] to [55], by reference to the decision of the Tribunal (identified as Attachment H), concerning the various explanations provided by the applicant for her offending:

The ART noted a statement of agreed facts signed 29 May 2023, indicates [the applicant] acknowledges criminal responsibility for the offence on the basis that she was aware there was a significant chance the substance she supplied was a prohibited drug Attachment H.

On 24 October 2023, [the applicant] provided an explanation of the circumstances of her offending for the SAR [Sentence Assessment Report] assessor, stating a work colleague asked her to drop off a parcel on the way home from work and she had no inkling that it was illegal. She said she was getting no financial gain and was doing a favour for a friend. [The applicant] said she was unaware she had anything wrong until her arrest. In hindsight she thought she should have been suspicious and denied having any knowledge of the amount of money that changed hands Attachment H

I note [the applicant] gave the ART a different explanation for her participation in the offending in her statement on 7 August 2025. [The applicant] stated she became involved in the offending after being coerced by a man known as “Eric” who she later discovered to be associated with a triad syndicate from Hong Kong. She claimed this person threatened her and her family and forced her to transport packages she later learned contained illicit drugs. She claims she did not profit from these activities and acted under duress. [The applicant] claimed to the ART that she provided a detailed witness statement to the Detective Sergeant of Fairfield Police Area Command about Eric’s criminal activities, and her cooperation was important Attachment H.

[The applicant] was cross examined in the ART about the inconsistent and changing narrative of her participation in the offence and it was put to her she was seeking to reduce her culpability for the offence. [The applicant] responded she was scared due to Eric’s threats to harm her boyfriend and her brother, so she did not tell the truth at the time. The ART has concerns about this new explanation that she had advanced for the first time. There is no evidence before the ART of the police interview and no explanation as to why the police interview was not provided Attachment H.

The ART further had concerns about the veracity of [the applicant’s] explanation she was pressured into delivering the package by a work associate who was involved in a criminal syndicate. The ART finds that this claim lacks credibility and did not accept it on this basis. It does not accept, in the absence of probative evidence in support, that she gave information about this person or anyone, to NSW Police Attachment H.

17    The Assistant Minister observed, however, at SR [56], that the Tribunal had concluded that the adverse credibility findings that it had made against the applicant did not override the weight of probative evidence that the applicant that indicated that she posed a low risk of reoffending. Notwithstanding that finding by the Tribunal, the Assistant Minister stated at SR [57]:

It is difficult to assess the progress of [the applicant’s] rehabilitation without knowing the drivers of her offending. [The applicant] does not require drug or alcohol rehabilitation, nor does she have any associated mental health issues. She has a supportive family and a good relationship with her partner and his family. I note the different explanations of her offending do tend to be self-serving and attempt to lessen her participation in a very serious criminal activity. I note the Court of Criminal Appeal and the ART assess her to have good prospects of rehabilitation.

18    The Assistant Minister then variously concluded that (a) he disagreed with the Tribunal’s finding that the applicant “is a low level of reoffending” because her “repeated inconsistent comments demonstrate a lack of remorse and true insight into her offending” (at SR [58]), (b) “On balance, I consider there to be a low, but not negligible likelihood” that the applicant would reoffend again (at SR [61]), and (c) that in the absence of “a proper explanation” from the applicant for her offending, “there remains an ongoing, albeit somewhat reduced, likelihood” that the applicant would reoffend (at [62]).

E.    Ground 1

E.1.    The applicant’s contentions

19    The applicant contends in ground 1 that the decision of the Assistant Minister was affected by jurisdictional error because the findings that he made as to the national interest were unreasonable, illogical or irritational, with the result that the jurisdictional fact antecedent to the exercise of discretion under s 501BA(2)(b) of the Act was not established.

20    The applicant principally submits that (a) on the material available the accounts given by the applicant as to the circumstances of her offending were not “all inconsistent” as the Assistant Minister “purported them to be his reasons”, (b) the Assistant Minister had formed the view that the accounts given by the applicant were inconsistent or that the applicant posed a risk to the Australian community without reviewing the documents containing the allegedly inconsistent explanations and in circumstances where the Tribunal had found, and the Minister before the Tribunal had conceded, each with the full benefit of the documents, that the applicant had a low risk of reoffending, and (c) the Assistant Minister drew the inference that financial greed may have been the reason for her offending, when no such inference was available on the material and without any reasoning process to that effect.

E.2.    The accounts given by the applicant were inconsistent

21    Both the Tribunal and the Assistant Minister concluded that the various accounts given by the applicant were inconsistent and reflected adversely on her credit.

22    The findings were plainly open on the material available to the Tribunal and the Assistant Minister.

23    In the statement of agreed facts signed on 29 May 2023, the applicant had acknowledged that she was aware that there was a significant chance that the substance that she had supplied was a prohibited drug. Then on 24 October 2023, the applicant stated to her Sentencing Assessment Report (SAR) assessor that she had no inkling that what she was doing was illegal, she was doing a favour for a friend, obtained no financial gain and she was unaware that she had done anything wrong until her arrest, but in hindsight she should have been suspicious.

24    Then some two years later, in her statement signed on 7 August 2025, the applicant told the Tribunal that she had been coerced by a person named “Eric” who threatened her and her family and forced her to carry packages that she later learned contained illicit drugs, she did not profit from conducting these activities, she had acted under duress and she had provided a detailed statement to a detective sergeant at the Fairfield Police Area Command about Eric’s criminal activities. When questioned further about these issues before the Tribunal, the applicant stated that Eric had told her the package contained drugs. He did not tell her what kind of drugs they were or their weight but “she knew it wasn’t a good thing”.

E.3.    The inferences as to risk of reoffending could be drawn by the Assistant Minister

25    There was no jurisdictional requirement imposed on the Assistant Minister to obtain every document before the Tribunal. The Assistant Minister was not undertaking a review of the decision of the Tribunal. Rather, the power exercised by the Assistant Minister under s 501BA(2) is an “override power”. As Mortimer J explained in Tereva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 270; [2022] FCAFC 142 at [28] in response to a submission that the relevant Minister had to rebut the reasoning of the Tribunal:

… The power in s 501BA is an override power. While it takes as its jurisdictional precondition a favourable decision of the Tribunal, there is nothing in the text, context or purpose of the provision which supports an implication that the Minister is required to “rebut” the reasoning of the Tribunal. Given the precondition, it may be an error for the Minister not to consider the Tribunal’s reasoning at all. However, the Minister’s power is differently conditioned, by the concept of the national interest, and there is no basis to import into the lawful exercise of that power a requirement that the Minister needs to refute the reasoning of the Tribunal. Indeed, this is a feature contributing to the draconian nature of the power. The Minister is empowered, subject to remaining within the boundaries of the concept of the “national interest”, and the boundaries of legal reasonableness and rationality, to simply take an entirely different view of the facts and circumstances to that taken by the Tribunal.

26    The task to be undertaken by the Tribunal and the relevant Minister is fundamentally different. As Owens J stated in CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [33]:

… The critical question for the Minister’s consideration is singular; namely, whether it is in the national interest that the state of affairs obtaining in consequence of the Tribunal’s decision should be reversed. Because it is no part of the Tribunal’s function to consider the national interest, and because the Minister’s discretion is relevantly enlivened by no consideration other than the national interest, the path by which, and the basis upon which, the Tribunal reached its conclusion are not inevitably relevant to the Minister’s decision. It is the state of affairs produced by the Tribunal’s decision that the Minister is required to consider against the national interest. It follows that when the Minister was considering whether to “set aside” the Tribunal’s decision, it was the result, and not the reasoning, that was in issue.

27    The inferences drawn by the Assistant Minister as to the risk of the applicant reoffending based on the findings made by the Tribunal were in any event generally consistent with the inferences drawn by the Tribunal and the concessions made by the Minister before the Tribunal.

28    The Tribunal was satisfied that “the probative evidence before it supports a conclusion that the applicant poses a low risk of reoffending” and the Minister “conceded as much in oral submissions” (at DR [79]). It ultimately concluded that the adverse credibility findings it had made did not override the probative evidence that indicated that the applicant posed a low risk of reoffending (at DR [99]).

29    The Assistant Minister stated at SR [58] that he disagreed with the Tribunal that the applicant “is a low level of re offending” but that statement must be construed in the context of the Assistant Minister’s findings that “[o]n balance, I consider there to a low, but not negligible likelihood” the applicant would reoffend (at SR [61]) and “on balance that there remains an ongoing, albeit somewhat reduced, likelihood” that the applicant will reoffend (at SR [62]).

30    As submitted by the Assistant Minister, the Tribunal exercising a different power for a different purpose placed greater weight than the Assistant Minister upon positive aspects that pointed to good prospects of rehabilitation for the applicant and was therefore not as troubled by the inconsistent accounts.

31    The Assistant Minister reached a less benign view than the Tribunal of the significance of the conflicting explanations provided by the applicant to the risk of the applicant reoffending. That view, based on concerns as to the objective seriousness of the offending and a failure of the applicant to appreciate the seriousness of her offending, nonetheless fell well within the boundaries of the concept of the national interest and the boundaries of legal reasonableness and rationality.

E.4.    Any inference of financial greed was not dispositive

32    The Assistant Minister made the following observations at SR [34]:

Given [the applicant’s] propensity to repeatedly change her explanation as to her offending, I have not been able to determine the drivers behind the offending. Without a more credible reason for her offending I consider that it may be that financial greed was her motivation.

33    Even if it were assumed that the speculative reference to “financial greed” was an inference drawn by the Assistant Minister, rather than simply speculation by the Tribunal, it was only a very weak inference, as it did not rise higher than it “may” have been the applicant’s motivation.

34    Moreover, and critically, any inference drawn by the Assistant Minister that financial greed may have been the applicant’s motivation for engaging in the offending was not part of the dispositive reasoning of the Assistant Minister. Rather, as is evident from the reasoning of the Assistant Minister at SR [62], it was the absence of a proper explanation, not any alternative financial greed explanation, that led the Assistant Minister to conclude that “there remains an ongoing, albeit somewhat reduced, likelihood that [the applicant] will reoffend”.

35    No error has been established by ground 1.

F.    Ground 2

F.1.    The applicant’s contentions

36    The applicant contends in ground 2 that the Assistant Minister’s decision was affected by jurisdictional error because he acted unreasonably in forming a conclusion about the applicant’s risk of offending.

37    The applicant submits that in circumstances where the Assistant Minister had declined to afford natural justice and had expressly acknowledged the limit of the information available to him, in order for him to reach a state of satisfaction that that the applicant did not pose a low risk of re-offending, it was incumbent on him to be satisfied that the alleged inconsistencies in the applicant’s explanations for the offending were in fact inconsistencies. The applicant submits that the exclusive reliance that the Assistant Minister had on the summaries in the Tribunal’s decision record of the Statement of Agreed Facts, the SAR Interview Record and the applicant’s 7 August 2025 statement to the Tribunal (ART Statement), and its ultimate decision to depart from the Tribunal’s findings, was plainly unreasonable.

F.2.    Reliance on the Tribunal’s summaries was not unreasonable

38    It was open to the Assistant Minister to rely on the summaries of the Statement of Agreed Facts, the SAR Interview Record and the ART Statement in the decision record of the Tribunal in circumstances where it was not alleged by the applicant that the summaries were inaccurate or that the Tribunal had otherwise misquoted the content of the documents: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209; (2022) 179 ALD 299 at [47] (Charlesworth J). The inconsistencies in the explanations provide by the applicant of her offending were readily apparent on the face of the summaries, as explained above at [21] to [24]. Unlike in Pihama v Minister for Immigration and Multicultural Affairs [2026] FCA 538 at [106]-[108] (Vandongen J), the applicant did not point to any additional specific matters that might have been before the Tribunal that were not considered by the Assistant Minister that might have caused him to concede a lower risk of offending by the applicant.

39    It was also open to the Assistant Minister to come to a different view about the significance of the inconsistencies in making an assessment of the applicant’s insight into the nature of her offending and the likelihood of any reoffending.

40    No error has been established by ground 2.

G.    Ground 3

G.1.    The applicant’s contentions

41    The applicant contends in ground 3 that the Assistant Minister’s decision was affected by jurisdictional error because he constructively failed to exercise his jurisdiction by failing to make reasonable inquiries.

42    The applicant submits that for the reasons that it has advanced with respect to ground 1, the failure by the Assistant Minister to “make inquires to obtain the relevant accounts” given by the applicant was an “extreme case”, as contemplated by Steward J in Ozer v Minister for Home Affairs [2019] FCA 104. She submits that in order for the Minister to act reasonably it was necessary for him to have the accounts given by the applicant before him to determine whether the accounts were inconsistent.

G.2.    There was no obligation to make further inquiries

43    Given the statutory exclusion of natural justice pursuant to s 501BA(3) of the Act it is difficult to comprehend how the Assistant Minister was under any obligation to make “reasonable inquiries”.

44    As Steward J made plain in Ozer, it could only be in an “extreme case” that any obligation to exercise the power in s 501BA in a legally reasonable way would require a decision-maker to make an inquiry and the content and nature of that inquiry would depend on the particular applicable facts (at [43(9)]). Here, the inconsistencies in the explanations for the applicant’s offending were plain on the face of the summaries of the Statement of Agreed Facts, the SAR Interview Record and the ART Statement in the Decision Record of the Tribunal. The need to make any further inquiries, here as in Ozer, “was not so “obvious” as to render the decision one made beyond the boundaries of decisional freedom”: Ozer at [46].

45    In any event, in circumstances where there was no suggestion that the summaries of the Statement of Agreed Facts, the SAR Interview Record and the ART Statement in the Decision Record of the Tribunal were incorrect or relevantly incomplete, any decision not to obtain copies of those documents could not be material.

46    No error has been established by ground 3.

H.    Disposition

47    For the foregoing reasons, the amended originating application is to be dismissed and the applicant is to pay the Assistant Minister’s costs, as taxed or agreed.

Associate:

Dated:    31 July 2026