Federal Court of Australia

Bui v Minister for Immigration and Citizenship [2026] FCA 1040

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Citizenship.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) dismissing an application for judicial review of a decision of the (then) Administrative Appeals Tribunal (the Tribunal).

2    The appellant is a national of Vietnam who came to Australia on a student visa (Subclass 573) in August 2014. On 15 December 2016, following his marriage to his wife, he was granted a Partner visa (Temporary) (Subclass 820) (partner visa).

3    On 14 June 2018, the appellant was arrested by NSW Police and charged with contravening s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) (offence with respect to prohibited plants) and theft of electricity under s 64(1) of the Electricity Supply Act 1995 (NSW).

4    On 3 July 2018, the appellant was sent a Notice of Intention to Consider Cancellation under s 116 of the Migration Act 1958 (Cth) (the Act) by a delegate of the first respondent (the Minister). The appellant sent a submission in response to that notice on 19 July 2018. On 23 July 2018, a delegate of the Minister cancelled the appellant’s partner visa under s 116(1)(e)(i) of the Act. Section 116(1)(e)(i) provides as follows.

116 Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

…

(e)    the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)    the health, safety or good order of the Australian community or a segment of the Australian community; or

5    On 27 July 2018, the appellant sought review of the delegate’s decision by the Tribunal.

6    On 12 October 2018, the appellant and the NSW Police Prosecutor entered into a statement of agreed facts which indicated the offences with respect to prohibited plants and theft of electricity had been withdrawn and replaced with a single charge of “Conceal serious indictable offence” under s 316 of the Crimes Act 1900 (NSW) (concealment offence).

7    The appellant provided a written submission to the Tribunal on 22 October 2018 in which he submitted that:

as the present charges against Mr. Bui will no longer be in existence, the original grounds for cancellation also no longer exist. Consequently, we respectfully request that the Senior Member remit the decision to cancel Mr. Bui’s Subclass 820 Partner visa—referring the application back to the Department for its consideration of Mr. Bui’s Partner (subclass 801) application.

8    The appellant’s criminal proceeding was heard on 21 November 2018 and he pleaded guilty to the concealment offence. The appellant was sentenced to a Community Correction Order for 9 months.

9    The Tribunal conducted an oral hearing on 3 January 2019 and handed down its decision on 8 January 2019. It affirmed the decision of the delegate to cancel the appellant’s partner visa under s 116(1)(e)(i) (the Tribunal decision).

10    On 6 February 2019, the appellant filed an application for review of the Tribunal decision in the Federal Circuit Court of Australia, which later became the FCFCOA. He filed an amended application on 16 June 2023. The grounds set out in the amended application were lengthy. The primary judge summarised them as follows.

(a)    ground 1 – the applicant was denied procedural fairness by the Tribunal’s finding at [25] (CB 74) that grounds for cancellation existed for the purposes of s 116(1)(e) of the Act in circumstances where the charges particularised in the NOICC were different to the concealment charge extant at the time of the Tribunal’s decision, and the applicant had not been invited to comment on “that step”.

(b)    ground 2 – the Tribunal erred at [25] (CB 74) by finding that grounds for cancellation existed, which conclusion was illogical, unreasonable or irrational, and the Tribunal did not have regard to PAM3 in order to decide whether to apply government policy;

(c)    ground 3 – the Tribunal erred in the exercise of its discretion to cancel the applicant’s visa by including, as part of that assessment, that the applicant may be able to apply for another visa in future and thereby return to Australia;

(d)    ground 4 – not pressed;

(e)    ground 5 – the Tribunal erred by its finding at [47] (CB 77) that the best interests of the child would not be adversely affected to any significant degree by cancellation; and

(f)    ground 6 – the Tribunal erred in the exercise of its discretion to cancel the applicant’s visa by its finding at [52] (CB 78) that the applicant had committed a serious offence, its reliance on the applicant’s alleged lack of remorse, and by finding that the applicant had failed to take reasonable steps to disassociate himself from the situation which led to the charges and conviction.

11    The FCFCOA delivered its judgment on 29 January 2024. It rejected each of these grounds and therefore dismissed the appellant’s application.

Grounds of appeal

12    The appellant’s notice of appeal raises two grounds, which are as follows.

1.    The Administrative Appeals Tribunal (“AAT”) found in paragraph 25 of its decision that “the presence of the applicant in Australia may be a risk to safety or good order of the Australian community” and therefore the ground for cancellation in s 116(1)(e) of the Migration Act 1958 (Cth) exists. The appellant contended before the primary judge (ground 2) that the AAT erred in making this finding because: (a) the matters on which the AAT relied in making this finding did not support the finding with the effect that the AAT’s finding was illogical, unreasonable or irrational, or the AAT did not properly construe and apply the statutory provision; and (b) the AAT did not have regard to government policy in PAM3. The primary judge at [54]-[62] found this ground was not made out. The primary judge erred in not finding jurisdictional error.

2.    The AAT, after making intermediate findings concerning the appellant’s case, weighed the competing considerations in paragraphs 51 to 53 of its decision and exercised its discretionary power to cancel the appellant’s visa. The appellant contended before the primary judge (ground 6) that the AAT erred in exercising this discretion. The primary judge at [101]-[104] found this ground was not made out. The primary judge erred in not finding jurisdictional error.

13    These grounds effectively repeat grounds 2 and 6 in the FCFCOA proceeding under cover of an overall contention that the primary judge erred by not upholding those grounds. This approach has been criticised (DXF22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 75; 303 FCR 466 at [21] (Wigney, Hespe and Kennett JJ)), as the appellant’s case is “effectively being argued again from scratch instead of rather than by identifying error” in the primary judge’s reasoning (see also NBDY v Minister for Immigration & Multicultural Affairs [2006] FCAFC 145 at [26]-[27] (Branson and Stone JJ)). However, it is not uncommon in judicial review cases, where the only issue is whether the published reasons of an administrative decision-maker demonstrate jurisdictional error.

The reasoning of the Tribunal

14    The Tribunal’s reasons (paragraphs of which are referred to below as “R”) fall broadly into two parts, headed “Does the ground for cancellation exist?” and “Consideration of discretion”. This reflects the terms of s 116(1), which provides that a discretion to cancel a visa arises if the Minister is “satisfied” that specified circumstances exist.

Ground for cancellation

15    Under the first heading, the Tribunal noted some of the background facts and continued (R [10]-[11]):

The applicant stated, with respect to the grounds for cancellation, that the focus of s. 116(1)(e) is on risk, rather than the charges and the term ‘risk’ is not defined. The Tribunal acknowledges that it is an assessment of risk that is relevant here and while the charges may be relevant to that assessment, the charges themselves are not sufficient to give rise to the cancellation ground under s.116(1)(e).

The applicant correctly points out that the term ‘risk’ is not defined and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001). The expression ‘may’ connotes something ‘to be possible’ (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong at [41]). As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

16    The Tribunal then summarised the appellant’s submissions and evidence. His evidence included an account of the events leading up to his arrest, which the Tribunal described as “unpersuasive” (R [20]). The Tribunal also observed that this account was contradicted by the fact of his conviction (the result, as noted earlier, of a guilty plea), a necessary foundation of which was that he had knowledge of what was going on at the premises in question which he did not bring to the attention of police (R [21]).

17    The Tribunal concluded this part of its reasons as follows (R [24]-[25]).

It is of considerable concern to the Tribunal that despite the guilty plea and the conviction, the applicant repeatedly told the Tribunal that he was at the wrong place at the wrong time and pleaded guilty as a matter of convenience. The Tribunal is not satisfied that the applicant has any remorse for his conduct or appreciation of those elements of his conduct that were contrary to the law. The applicant had taken no steps to disassociate himself from the situation which in his own words was ‘odd’. The Tribunal is not satisfied the applicant fully appreciates his obligations as a member of the community, including the obligation to abide by the laws.

The Tribunal is satisfied that the presence of the applicant in Australia may be a risk to safety or good order of the Australian community. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

18    Turning to the exercise of discretion, the Tribunal noted that no mandatory considerations were specified in the Act or the Migration Regulations 1994 (Cth) and said (R [26]):

The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19    The Tribunal then addressed a list of issues referred to in the PAM3. Omitting issues that did not arise or as to which there was no information before the Tribunal, they were as follows.

(a)    The purpose of the visa holder’s travel to and stay in Australia: The Tribunal observed that the appellant appeared to be in a relationship with his wife and was therefore fulfilling the purpose of his partner visa, and that the presence of his wife and child in Australia “may constitute a compelling reason for him to remain in Australia” (R [29]).

(b)    The degree of hardship that might be caused by cancellation: The Tribunal accepted that cancellation of the visa would cause considerable hardship to the appellant’s family (R [38]).

(c)    The circumstances in which the ground of cancellation arose: Here it was relevant that the Tribunal had concluded that the appellant’s presence in Australia might be a risk to the safety or good order of the community; however, the Tribunal also acknowledged the appellant’s submission that he had not committed any other offences (R [39]).

(d)    Whether there were mandatory legal consequences such as the visa holder becoming liable to detention, whether indefinite detention was a possible consequence, and whether the visa holder would be prevented from making further visa applications: The Tribunal noted cancellation would mean that, unless the appellant obtained another visa, he would be an unlawful non-citizen and might be detained and removed from Australia. There was no suggestion that he would be detained indefinitely. There were no provisions in the Act preventing him from applying for another visa. The Tribunal also noted that loss of the temporary partner visa might affect the appellant’s eligibility for a permanent partner visa (R [42]).

(e)    Whether any international obligations, including non-refoulement obligations and obligations concerning the best interests of children, would be breached: The Tribunal accepted that the best interests of the appellant’s child required the presence of both parents. However, it was not satisfied that cancellation of the visa would lead to more than a temporary separation of the appellant from his family and therefore did not consider that the interests of the child would be adversely affected “to any significant degree” (R [47]).

20    Under the sub-heading “Any other relevant matters”, the Tribunal considered the appellant’s contention that he was “simply at the wrong place at the wrong time” and pleaded guilty because it was the best option. Referring to its earlier reasoning, the Tribunal expressed the view that the appellant’s conviction should be taken as evidence that the elements of the offence had been proven (R [50]).

21    The Tribunal then considered the appellant’s circumstances, noting that the appellant had strong ties with Australia including his wife and child, that cancellation would cause hardship to the family and there were no other known instances of non-compliance by the appellant. These, the Tribunal said (R [51]), were “reasons why the visa should not be cancelled”.

22    The Tribunal then said (R [52]-[53]):

Against these considerations, the Tribunal notes that the applicant has committed a serious offence and the Tribunal is not satisfied that the applicant has shown a genuine appreciation of his conduct or any remorse for it. The Tribunal has formed the view that the applicant had failed to take reasonable steps to disassociate himself from the situation which led to the charges and the conviction. The Tribunal finds that the circumstances in which the ground for cancellation arises and the nature of the applicant’s conduct outweigh other considerations.

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

Ground 1

23    The appellant referred to Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [38] (Djokovic), where the Full Court (Allsop CJ, Besanko and O’Callaghan JJ) said:

The notion of “risk” involves possibility in the future. Thus, consideration of what may or might happen in the future by reference to the presence of the visa holder in Australia is what is called for.

(Citations omitted.)

24    The key point in the appellant’s submission is that the Tribunal failed to appreciate that “risk” is a forward-looking concept and instead focused on his past conduct and perceived lack of remorse. This submission placed particular emphasis on [24]-[25] of the Tribunal’s reasons, which have been set out above at [17]. Looking backwards rather than forwards is said to constitute jurisdictional error, either:

(a)    because the Tribunal, by failing to direct its mind to “risk” in the correct sense, did not reach the state of satisfaction required by s 116(1)(e)(i); or alternatively

(b)    because the Tribunal, despite having said that it was having regard to the matters listed in the PAM3, reasoned inconsistently with that document and therefore erred in the manner referred to in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452; 269 FCR 438 at [89] (Robertson J) (Jabbour).

Text of s 116(1)(e)(i)

25    I reject the first way in which the argument was put. The Tribunal’s reasons must be read fairly and as a whole. The Tribunal began its analysis of whether the appellant would or might pose a risk to the health, safety or good order of the Australian community by expressly observing (in the passage set out [15] above) that the concept of “risk” involved an element of futurity and that past conduct was relevant to the assessment. The latter point was consistent with Djokovic at [39], where the Court said:

The task is the consideration of future possibilities which “proceeds by drawing inferences from known facts” and is based on “reasonable conjecture within the parameters set by the historical facts”. To these considerations should be added as legitimate bases for the assessment process: common sense, a reasonable appreciation of human experience, and personal knowledge or specialised knowledge of the Minister or his or her Department.

(Citations omitted.)

26    Viewed in that context, what the Tribunal said at R [22]-[24] (set out in part above at [17]) should not be read as simply a series of findings about the appellant’s past conduct and present lack of remorse. Rather, they should be understood as forming the factual conclusions upon which the Tribunal based its assessment of future prospects (ie, “risk”) set out in R [25]. While it would have been preferable for the final step in the reasoning to be made explicit, that is not sufficient to establish that the Tribunal erred in the manner suggested.

Consistency with the PAM3

27    As to the second way in which the argument is put, the section of the PAM3 dealing with s 116(1)(e) included the following passages.

Protection of the Australian community – Risk to safety

In the interests of protecting the Australian community but without limiting an officer’s discretion, delegates should consider cancellation in all cases where it appears that the holder’s presence in Australia may or might pose a risk to the safety of:

•    the Australian community

•    a segment of the Australian community or

•    an individual or individuals

such as situations where a person has been charged with serious violent crimes, violent sexual offences or sexual offences involving a minor. If there is sufficient evidence to enliven the ground at s116(1)(e), delegates should consider cancellation as soon as practicable.

…

Identification of risk

The term ‘risk’ is not defined in the Act, and is by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.

For the ground at s116(1)(e) to be made out it is for the delegate to clearly identify the risk that the person’s presence in Australia poses to the health, safety or good order of the Australian community (or a segment of the Australian community, or to the health or safety of an individual or individuals). Delegates need to articulate the specific details or particulars of the risk.

…

Drug-related offending

If a person has been charged with offences relating to the manufacture or possession of large quantities of illicit substances, a delegate may be able to be satisfied that the s116(1)(e) ground exists if they are able to draw a logical link between the alleged commission of the offences and a risk to the Australian community, or a segment of the community.

Such a link to the risk of causing harm to the community may be drawn, for example, if a visa holder has allegedly produced drugs in sufficiently large quantities. However, if a person has been charged and their manufacturing equipment has been confiscated by the police, it may not be possible to make an argument that the person poses a risk to the community. It may be possible, however, to find that the person poses a risk if there is evidence of a previous pattern of behaviour that indicates the person may be a risk to the community. This evidence would need to include, for example, evidence of repeated relapsing in the past into criminal behaviour to outweigh the effect of confiscation of the equipment.

…

Good order

‘Good order’, in the context of this provision, is concerned with activities which have an impact on public activities or which manifest themselves in a public way, for example, the risk of an adverse reaction by certain members of Australian society to the visa holder's presence in Australia.

A risk to the good order of the Australian community might occur if there is an element of a risk that a visa holder’s presence in Australia might be disruptive to the proper administration or observance of Australian law or create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

A delegate may be satisfied that a person’s presence in Australia poses a risk to the good order of the Australian community or a segment of the Australian community if:

•    there is evidence that a visa holder in Australia is inciting people in the community to violence; or that a visa holder outside Australia is intending to come to Australia to incite people in the community to violence;

•    there is evidence that a visa holder in Australia is publicly advocating violence against a particular social group (such as women) or a visa holder outside Australia is intending to come to Australia to publicly advocate violence against a particular social group (for example, hate-preachers).

This is because inciting or advocating violence could be said to be disruptive to the proper administration or observance of Australian law, in that certain persons might act on such calls; or that by publicly inciting or advocating violence they are creating difficulties or public disruption in relation to the values, balance and equilibrium of Australian society in that certain members of society may react negatively to such public advocacy.

In order for this ground to apply, there should be some action that the visa holder is intending to undertake or has undertaken that could cause the risk to exist - for example, holding public rallies, or speaking at public conferences. If, for example, the Department has reliable evidence that a visa holder in Australia is publicly advocating violence against women, or that a visa holder outside Australia is intending to come to Australia to publicly advocate violence against women, there would be grounds to consider cancellation of the visa under s116(1)(e).

(Emphasis in original.)

28    In Jabbour at [89] Robertson J said:

It may be accepted that departure from non-statutory Ministerial guidelines may give rise to action liable to be set aside on judicial review, for error of law, where at least a decision-maker, not bound to apply a policy, purports to apply it as a proper basis for disposing of the case in hand or misconstrues or misunderstands it, so that what is applied is not the policy but something else. This may be an example of “an illogicality in, or misapplication of, the reasoning adopted by the decision-maker; so that the factual result is perverse, by the decision-maker’s own criteria”.

(Citations omitted.)

29    Jabbour involved an application for declaratory relief against the Secretary to the Minister’s Department arising from the failure by an officer of the Department to refer a request for ministerial intervention under s 351 of the Act to the Minister. To the extent that the officer was exercising any power, it was non-statutory executive power. The paragraph of Robertson J’s reasons extracted above was (as Allsop CJ noted in Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [74]-[77]) obiter.

30    The premise for Robertson J’s observation was a decision-maker, not bound by a policy, purporting to apply it. The short answer to the appellant’s attempted reliance on Jabbour is, therefore, that the Tribunal in the present case did not purport to “apply” the PAM3, at least in this part of its reasoning. The only point at which the Tribunal mentioned the PAM3 was at R [26] (set out above at [18]) where, in connection with the exercise of discretion, it said that it had had regard to the circumstances of the case including the matters referred to in the PAM3.

31    It should also be noted that, in the paragraph quoted above at [28], Robertson J cited Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208 (Gray), where French and Drummond JJ said:

It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error.

32    Here, in addition to the situation where a decision-maker “purports” to apply a policy (the aspect referred to in Jabbour), their Honours referred to circumstances in which a policy constitutes “a relevant fact which the Tribunal is bound to consider”. Earlier, at 206, their Honours had said:

Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case.

33    So far as I have been able to ascertain, this reasoning has not been disapproved or doubted. The PAM3 is, of course, a departmental manual. It does not have the status of a direction by the Minister under s 499 of the Act, and the Act therefore does not make it binding on decision-makers exercising powers under the Act. Nevertheless, the passage in Gray at 206 set out above would seem to point to the conclusion that the existence and content of the PAM3 was a matter that the Tribunal in the present case was bound to take into account and to give such weight as the Tribunal considered proper. The Tribunal did not refer to the PAM3 in the course of its reasoning on the question whether a ground of cancellation was made out and there is nothing in that reasoning to suggest any engagement with what the PAM3 said or consideration of whether the guidance that it offered ought to be accepted. While it is true that this part of the Tribunal’s reasoning involved an evaluative judgment (as to whether the appellant posed a relevant “risk”) rather than the exercise of a true discretion, where “policy” might be thought to have more of a role to play, I doubt whether that in itself is sufficient to displace the proposition that decision-makers are bound to have regard to the existence and content of lawful policies.

34    However, in El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038; 142 FCR 43 at [45] (El Ess) Gray J said:

Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 – 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

35    Although this passage appears to be inconsistent with the reasoning in Gray (which was not referred to in El Ess), it has been cited with apparent approval a number of times including by the Full Court in COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190; 236 FCR 148 at [31] (North, Collier and Flick JJ). Neither party submitted that it should not be followed (indeed, the appellant referred to it in written submissions and appeared to accept its correctness). In the absence of detailed argument on the correctness of El Ess, it is preferable that I should proceed on the basis that the statement at [45] in that case is correct. It follows that the failure of the Tribunal to engage with the PAM3 in the course of coming to the view that the ground of cancellation in s 116(1)(e)(i) was established did not constitute an error going to jurisdiction.

Ground 2

36    As developed in the submissions, ground 2 focused only on the Tribunal’s use of the expression “serious offence” in R [52] (set out above at [22]) to describe the concealment offence. This is said to constitute error because that offence would not have:

(a)    engaged s 203 of the Act (which according to its heading provided for the deportation of non-citizens who were convicted of “certain serious offences”);

(b)    come within the definition of a “serious offence” in cl 070.111 of Schedule 2 to the Migration Regulations 1994 (Cth) (which was expressed to apply for the purposes of Part 070 of Schedule 2); or

(c)    establishing a “substantial criminal record” as defined in s 501(7) of the Act (which is part of the “character test” for the purposes of the cancellation and refusal powers in s 501).

37    Counsel for the appellant accepted that none of these provisions was applicable in the present case, but suggested that they supply a “benchmark” for deciding what should be regarded as “serious”. Thus, it was submitted, the Tribunal had erred by “equating” the concealment offence to offences which came within these provisions.

38    There is no substance to this argument. “Serious offence” was not a term that had any fixed meaning for the purposes of s 116(1)(e). The Tribunal was not purporting to suggest that the concealment offence met any statutory benchmark of seriousness, but expressing its view that for the purposes of exercising the discretion it should be regarded as significant. That was not an irrational view, in circumstances where concealment of the production of illegal drugs clearly had the potential to undermine the health and safety of individuals and the administration of Australia’s laws.

Disposition

39    The appeal will be dismissed with costs.

Associate:

Dated:    3 August 2026