Federal Court of Australia

BGZX v Minister for Immigration and Citizenship [2026] FCA 1207

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application for review is dismissed.

2.    The applicant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    The applicant is a citizen of Iran who arrived in Australia in 2012 as a young man. On 10 January 2017, the applicant was granted a Class XE Subclass 790 Safe Haven Enterprise visa as a delegate of the Minister found that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth). As such, the applicant was found to have a protection finding within the meaning of s 197C(5)(a) of the Act.

2    On 30 October 2023, after pleading guilty to the charge of attempting to possess a commercial quantity of a border controlled drug (the offence), the applicant was sentenced to 4 years and nine months imprisonment with a non-parole period of three years (in the District Court of New South Wales). The applicant’s visa was therefore automatically cancelled under s 501(3A) of the Act.

3    It is not in issue (and was not before the Administrative Review Tribunal, the second respondent) that the applicant had a substantial criminal record because he had been sentenced to a term of imprisonment greater than 12 months and thereby failed the character test in s 501(6)(a) of the Act.

4    By this application, the applicant seeks judicial review of a decision of the Tribunal dated 26 February 2026 under s 501CA(4) of the Act. By that decision, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, not to revoke the mandatory cancellation of the applicant’s visa.

5    The amended originating application for review identifies one ground of review, namely, that the Tribunal’s decision was affected by jurisdictional error in that “the Tribunal’s finding as to the Applicant’s remorse and credit were illogical, irrational, or not based on findings or inferences of fact that could reasonably be reached on the material before the Tribunal”. The finding in question is that the applicant attempted to back-track on the agreed facts on the basis of which the sentencing judge sentenced the applicant and this led the Tribunal to doubt his alleged remorse and credibility.

6    For the reasons set out below, no jurisdictional error has been established in the Tribunal’s decision. As such, the amended originating application is dismissed and the applicant is to pay the Minister’s costs.

7    I have summarised aspects of the factual matters relating to this application at a high level of generality to minimise the risk of disclosing matters which might tend to identify the applicant, given the protection finding made by the delegate of the Minister.

2.    THE TRIBUNAL’S DECISION

2.1    Direction 110

8    By operation of s 499(2A) of the Act, the Tribunal was bound to comply with Direction No. 110 – Migration Act 1958 – Direction under Section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 7 June 2024 (Direction 110) in making its decision. As the Tribunal explained in its reasons, the purpose of Direction 110 is to guide decision makers in performing functions or exercising powers under ss 501 and 501CA of the Act, including relevantly here, whether there is another reason to revoke the mandatory cancellation of the applicant’s visa.

9    Paragraph 5.2 of Direction 110 contains the principles which provide the framework within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA. Those principles include the following:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

10    Paragraph 6 of Direction 110 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.

11    Paragraph 7 provides guidance as to the approach to be taken when weighing up the relevant considerations and provides that:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

12    Paragraph 8 of Direction 110 sets out the so-called “primary considerations” which are:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

13    Paragraph 9(1) sets out the “other considerations” which include:

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on Australian business interests.

2.2    The Tribunal’s reasons

14    The application for review was heard before the Tribunal on 14 and 15 January 2026. Both the applicant and the Minister were legally represented before the Tribunal, and the applicant, his partner, and three character witnesses gave oral evidence. The sole issue before the Tribunal was whether there was “another reason” to revoke the mandatory cancellation of the applicant’s visa, as he accepted that he did not pass the character test.

15    On 26 February 2026, the Tribunal affirmed the delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa.

16    In short, the Tribunal found as follows:

(1)    primary consideration one, being the protection of the Australian community, should be given heavy weight against revocation given that:

(a)    the applicant’s offending was very serious, involving approx 10 kg of pure amphetamine, a quite high degree of recklessness, and involvement spanning several months as opposed to being spontaneous (at [110]–[112]); and

(b)    while the risk of the applicant reoffending was medium/low, the potential harm from any repetition of his drug offending was so serious as to be unacceptable (at [116]–[117], [139] and [143]);

(2)    primary considerations three and four, namely, the strength, nature and duration of the applicant’s ties to Australia and the best interests of the applicant’s pre-school aged child, weighed significantly in favour of revocation (at [161]–[169] and [170]–[180]); and

(3)    primary consideration five, being the expectations of the Australian community, was given significant weight as a factor weighing against revocation (at [184]–[185]).

17    With respect to other considerations, the Tribunal gave significant weight to the legal consequences of revocation given its acceptance that, by reason of the protection finding made with respect to the applicant, he was liable to continued detention pending removal to Nauru (now known as the Republic of Naoero) where a 30-year Long Term Stay Visa had been issued, together with statutory restrictions on his ability to apply for further visas. The Tribunal also gave significant weight to the uncertainty surrounding the applicant’s removal to Naoero and the significant distress and anxiety that removal would cause him.

18    The Tribunal concluded that:

220.    The Applicant has breached the community’s expectations by committing very serious offending. The Tribunal has found that primary consideration one and five weigh very heavily against revocation of the mandatory cancellation decision. The Applicant has committed a very serious offence which involved the attempted possession of [approx 10] kg of methamphetamine. There is no question that had that quantity of drugs found its way into the Australian community it would have had devastating consequences. The objective gravity of the Applicant’s offending is reflected in the maximum penalty that applies to this offence being life imprisonment. The Tribunal has decided to afford greater weight to primary consideration one: protection of the Australian community, due to the very serious nature of the Applicant’s offending.

221.    The Tribunal has weighed the primary and other considerations that are in the Applicant’s favour. The Tribunal has afforded significant weight to the strength, nature and duration of the Applicant’s ties to Australia and the best interests of his minor child in Australia. The Tribunal has also afforded significant weight to the legal consequences of the decision and the uncertainty that surrounds the Applicant’s removal and relocation to Nauru.

222.    The Tribunal has had regard to the principles in paragraph 5.2 of Direction 110 and has noted that the safety of the Australian community is the highest priority of the Australian government. In line with these principles, the Tribunal considers that the nature of the conduct, or the harm that would be caused if the conduct were to be repeated, is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. The Applicant’s conduct in attempting to possess such a significant quantity of drugs is of such seriousness that even strong countervailing considerations are insufficient to justify revoking the mandatory cancellation of the Applicant’s visa.

223.    Having considered the primary and other considerations relevant to the Applicant’s case, the Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the Applicant’s visa.

3.    CONSIDERATION OF GROUND 1, APPLICATION FOR JUDICIAL REVIEW

3.1    Relevant principles

19    The relevant principles are not in issue and were conveniently summarised by the applicant as follows:

… an adverse credit finding (like any other finding) must be reached reasonably and where that adverse credit finding is reached irrationally, the decision as a whole may be infected by jurisdictional error: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [31]; SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089 at [20] – [21].

An adverse credit finding may be reached irrationally where a decision maker places undue emphasis on a single piece of evidence: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496. It may also be reached irrationally where the decision maker relies on unwarranted assumptions: WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437 at [57]; SZVAP at [22]. It is not the case that an adverse credit finding is immune from scrutiny or can shield a decision maker’s reasons from consideration: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31].

The same principles that apply to consideration of illogicality generally apply when considering whether an adverse credit finding might constitute jurisdictional error. A ground of review of illogicality or legal unreasonableness presents a high bar: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647 – 650. Where a ground of review asserts illogicality or legal unreasonableness, the question is whether “the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds … such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material”: Djokovic at [35].

20    Added to this, legal unreasonableness is assessed by reference to the statutory context in which the decision is made. As Allsop CJ explained in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [12] (Wigney J agreeing at [90]):

Critical to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude … that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power.

21    It follows, as Allsop CJ also explained in Stretton at [7] that:

There is “an area of decisional freedom” of the decision-maker, within which minds might differ. The width and boundaries of that freedom are framed by the nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law, in particular, of reasonableness.

3.2    No jurisdictional error established

22    The applicant’s submissions centre on his evidence before the Tribunal that he did not make a phone call at the end of February 2022 with the customs broker in which he masqueraded as the consignee, who I will describe by the pseudonym “Mr X”, despite his counsel at the hearing before the sentencing judge having admitted this fact. In his submission, the Tribunal illogically or unreasonably treated this as a back-tracking of his evidence before the District Court which cast doubt on his evidence that he was remorseful and took “full responsibility” for his offending, hence impacting adversely on his credibility. This contention relied on the following principal matters:

(1)    The applicant took full responsibility for the offence as charged, as is evident from his early plea of guilty in the District Court proceeding. Nothing in his evidence before the Tribunal took issue with the facts grounding the offence.

(2)    The applicant accepted in his evidence before the Tribunal that he was pretending to be “Mr X” in relation to the delivery of the drugs in 2022. He only denied pretending to be “Mr X” in the phone call with the customs broker made at the end of February 2022.

(3)    The concession that the applicant made the February 2022 phone call pretending to be “Mr X” was made by the applicant’s counsel orally at the sentencing hearing and was not the subject of sworn evidence by the applicant. The applicant’s instructions for counsel to make that admission was given in response to legal advice.

(4)    It was not the case that there were no disputed facts at the sentencing hearing. Rather, the applicant denied that he had used various email addresses pretending to be “Mr X” and the sentencing judge accepted that the prosecution had failed to prove beyond a reasonable doubt that the applicant had done so.

(5)    In the circumstances, there was no substantive inconsistency between the applicant’s concessions in relation to his conviction and sentencing, on the one hand, and the applicant’s evidence before the Tribunal, on the other hand. The only difference between those matters was that Counsel for the applicant had made the concession about the February 2022 phone call at the sentencing hearing, whereas the applicant did not, such that the applicant, personally, gave consistent evidence before both the sentencing judge and the Tribunal.

23    Thus, the applicant submitted that:

The real vice in the Tribunal’s conclusions at [137]-[138] is that it treated a dispute about a discrete, trivial matter (the February phone call) as equivalent to a denial of responsibility for the Offence itself, when the Applicant had always accepted responsibility for it. The Tribunal also treated the fact that the Applicant disputed making the February phone call but made a concession in respect of that fact during the sentence proceedings (thereby taking responsibility for it) as evidence of a lack of accountability and evidence of inconsistency. That was plainly illogical.

24    The Minister accepted that if the applicant established the error alleged, the error would have been material and therefore jurisdictional. That admission was rightly made given that the Tribunal’s finding that the applicant was not remorseful was expressly taken into account in its assessment of the likelihood of his reoffending and the weight to be given to primary consideration one of Direction 110, which was the consideration which the Tribunal treated as decisive. This is because, as the applicant also submits, the Tribunal found primary consideration one outweighed the combined effect of the remaining primary and other considerations which favoured revocation of the cancellation, including the best interests of his pre-school child and the significant hardship attending his prospective removal to Naoero.

25    The Minister, however, argued that there was no illogicality by reason of the Tribunal’s treatment of the applicant’s evidence denying that he was “Mr X” in the February 2022 phone call. In my view, those submissions must be accepted notwithstanding the carefully considered submissions made by counsel for the applicant.

26    First, as the applicant accepted at the hearing, the question of whether the applicant made the February 2022 phone call with the customs broker pretending to be “Mr X” was not trivial. Rather, while not an element of the offence itself, it was a significant factor in sentencing. This is because, as the parties accepted, once the sentencing judge held that it was not proved beyond reasonable doubt that the applicant sent the emails in February 2022, the February 2022 phone call became the only evidence of the applicant’s involvement in facilitating the drug delivery prior to June 2022 and therefore that his involvement in the drug delivery did not commence only three days before he was arrested.

27    Thus, as the Minister submits, the sentencing judge made several references to the extent of the applicant’s conduct in relation to the offence, noting with reference to the agreed facts for sentencing that:

The next part of the agreed facts… states: “The customs broker also had telephone contact regarding the consignment with a male identifying himself as [Mr X] and using the mobile number [redacted].” Counsel for the offender accepted that given the offender’s subsequent use and possession of a mobile phone with that number, which I will come to shortly in the agreed facts, that there was no issue that it was the offender that was involved in this telephone contact. I also confirmed that I should proceed on the basis that the communication took place at the end of February 2022.

28    The applicant’s counsel’s concession that he had made the February 2022 phone call masquerading as “Mr X” to the customs broker was then taken expressly into account by the sentencing judge in finding, for example, that:

(1)    the applicant must have agreed to be involved in the collection of some package arriving in Australia prior to making the February 2022 phone call attributed to him;

(2)    the applicant had contact with the customs broker on multiple occasions in relation to the package in which he falsely held himself out as the relevant consignee of the goods, “Mr X”, with the first such contact occurring in late February 2022 and then much later between 15 and 21 June 2022 in relation to the delivery arrangements;

(3)    the element that the applicant was reckless as to the fact the consignment contained a border controlled drug was established by, among other things, the fact that he was aware that he needed to take on a false persona when communicating with the broker regarding the package over the period of his participation;

(4)    there was “clearly a high degree of planning and preparation involved”, given the applicant’s communication with the broker before taking possession of the consignment;

(5)    overall, the applicant’s role was:

… a relatively important one given his repeated contact with the customs broker, which first commenced in late February 2022 and the fact that he was the one that nominated the ultimate delivery address for the consignment, and that it was him alone that took physical possession of the delivery.

Given there was the offender’s involvement initially in late February as well as June 2022 this is a case where the offender's involvement extended over a period of months, albeit there was a gap in between where there is no evidence of anything further being done by him. What it does highlight is that the decision by the offender to participate was not made only a short time prior to the delivery taking place. Having made the decision to participate, the offender had a period of months to reflect upon that decision. It was not a situation where he only became involved a short time prior to the delivery taking place on the spur of the moment with little time for reflection.

(6)    the fact that the applicant’s involvement in the offending occurred over a period of time was a reason to discount the psychologist’s evidence that his offending was “impulsive”.

29    Secondly, the applicant’s submissions fail to grapple with the fact that his evidence before the Tribunal directly contradicts the concession made by his counsel at the sentencing hearing about the extent of his involvement in the offence. It was this point which the Tribunal makes at paragraphs [137]–[138] of its reasons in finding that:

The Tribunal notes that in the reports leading up to his release (especially the Pre-release report dated 20 February 2025) the Applicant expressed regret and accepted full responsibility for his behaviour. This is at odds with his recent oral evidence to the Tribunal that he was not the person named as [‘Mr X’] and that he only agreed to take delivery of the package in the days leading up to his arrest. This is also at odds with what was submitted on his behalf by his own counsel at the plea hearing, that the Applicant had accepted that he was associated with the name [‘Mr X’], that he had use of the mobile number associated with [‘Mr X’], and that he was involved in the telephone contact with the customs broker at the end of February 2022.

The Tribunal finds that the Applicant’s attempt to back-track on the findings of the sentencing judge impacts his level of remorse. He may have pleaded guilty for a range of reasons, but the attempts during his evidence to dispute the findings of the sentencing judge impact his credit and declarations of remorse. If the Applicant disputed these key findings of facts (of which his counsel accepted) at the time he was applying for parole for example, it is possible that the author of those reports may have reached different conclusions regarding the Applicant’s level of remorse and finding that he accepted ‘full responsibility’ for his offending.

30    The reasons of the Tribunal “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ, quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]–[15] (Allsop J (as his Honour then was)).

31    Applying this approach to the Tribunal’s reasons here, in finding that the applicant’s acceptance of “full responsibility” for his behaviour was at odds with his recent oral evidence, fairly read the Tribunal was not denying that the applicant accepted responsibility for the factual elements of the offence to which he had pleaded guilty. Rather, the Tribunal was effectively finding that, in his evidence to the Tribunal, the applicant had sought to minimise his involvement by contesting the concession made by his counsel before the sentencing judge and thereby walk back from taking full responsibility for his conduct. That is an unexceptional and rational line of reasoning.

32    Thirdly, there is no difficulty in the sentencing judge relying on facts agreed by the parties in a statement of agreed facts or as admitted by their legal representatives from the bar table. As five members of the High Court held in GAS v The Queen [2004] HCA 22; 217 CLR 198 at [30], regarding fact finding following a plea of guilty:

In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted).

33    Fourthly, there is no suggestion that the applicant’s counsel misrepresented or misstated the applicant’s position to the sentencing judge. To the contrary, as the Minister submits, the applicant confirmed in his evidence to the Tribunal that his counsel made the concession on his instructions, following legal advice. Specifically, at [106] of its reasons, the Tribunal found that:

The Tribunal has had regard to the Applicant’s evidence and submissions that he disputes being the person who had contact with the customs broker during the initial phase of the offending in late February. The Applicant contends that he only agreed to the facts as stated by the prosecution in order to obtain the discount for pleading guilty. He essentially argued that he received legal advice that certain particulars in regard to the timing and extent of his involvement wouldn’t matter because he had pleaded guilty to the primary offending.

34    Having considered the applicant’s evidence denying his involvement in the February 2022 phone call, the Tribunal preferred the agreed version of the facts before the sentencing judge, finding at [109] that:

It is well established that the Tribunal cannot go beyond the essential findings of fact of the sentencing judge [citing HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 at [63]–-[79]]. The Tribunal accepts that what was stated at the top of page 195 of the sentencing remarks reflect the facts as the Applicant’s counsel accepted, and upon which Her Honour proceeded. The Tribunal finds those essential findings of fact establish that the Applicant made contact with the customs broker in late February 2022. The Tribunal does not accept the Applicant’s evidence to the Tribunal that he only became involved in the offending mere days before the consignment was due to be delivered.

35    The Tribunal was plainly correct in finding that it could not go behind the sentencing judge’s essential findings. As this Court has held, the Parliament could not have intended to permit evidence to be led of “another reason” for revoking a visa cancellation under s 501CA(4)(b)(ii) where that evidence is contrary to the essential conviction or sentencing facts which formed the basis of the decision-maker’s jurisdiction under s 501CA(4)(b)(i) to consider revocation: HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 at [68] per McKerracher J (Colvin J agreeing at [180]–[182]).

36    Finally, it was clearly open to the Tribunal to find that the applicant’s evidence in the reports leading to his release in 2025 in which he expressed regret and accepted full responsibility, were “at odds” with his recent oral evidence. That being so, it was open to the Tribunal to take this matter into account in assessing the applicant’s credit and finding that it did not accept that he was fully remorseful.

4.    CONCLUSION

37    It follows, for these reasons, that no jurisdictional error has been established in the Tribunal’s decision and the application must be dismissed with costs as agreed or assessed.

Associate:

Dated:    26 August 2026