Federal Court of Australia

Cheng v Minister for Immigration and Citizenship [2026] FCA 1631

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent's costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Ms Yin Ping Cheng is a citizen of the People's Republic of China. She was previously the holder of an Australian bridging visa that had been issued pending the determination of her application for a partner visa. In 2016, Ms Cheng was sentenced to a term of imprisonment of ten years for attempts to possess a prohibited drug, namely methylamphetamine. Her bridging visa was cancelled in 2025 pursuant to s 501(3A) of the Migration Act 1958 (Cth) by reason of the sentence that had been imposed for her offending. Ms Cheng then made representations to the Minister seeking revocation of the visa cancellation.

2    In such circumstances, power is conferred upon the Minister by s 501CA(4) of the Migration Act to revoke the visa cancellation if the Minister is satisfied that Ms Cheng passes the character test (as defined in the legislation) or that there is 'another reason' why the decision to cancel the visa should be revoked. A delegate of the Minister determined that the visa cancellation should not be revoked. Ms Cheng then sought merits review in the Administrative Review Tribunal. After a hearing, the Tribunal affirmed the decision by the Minister's delegate.

3    Ms Cheng now seeks review of the Tribunal's decision. She alleges jurisdictional error by the Tribunal. Four grounds of review are advanced. To explain the grounds, it is necessary to first refer to certain aspects of the Tribunal proceedings.

The Tribunal proceedings

4    In forming a state of satisfaction as to whether there was another reason to revoke the visa cancellation, the Tribunal was required by s 499 of the Migration Act to comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. A failure by the Tribunal to conform to the requirements of the Direction in its decision-making invalidates any decision: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 at [30]-[31] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

5    Relevantly for present purposes, the Direction specifies certain primary and other considerations that are required to be taken into account by the decision-maker. The first of the primary considerations is the protection of the Australian community from criminal or other serious conduct. The Direction also included certain 'principles' which provide 'the framework within which decision-makers should approach their task'. The language used in the Direction includes references to the expectations of the Australian community when it comes to cancelling visas based on character concerns. That language is used in the principles section of the Direction as well as in the part of the Direction that describes what the decision-maker is to do when taking into account the first of the primary considerations.

6    Before the Tribunal, Ms Cheng was legally represented. A detailed written statement of facts, issue and contentions was provided to the Tribunal for Ms Cheng. She accepted that she did not pass the character test. The issue was whether there was 'another reason' as to why the Tribunal should revoke the cancellation of Ms Cheng's bridging visa.

7    The Tribunal summarised the matters advanced by Ms Cheng in the following terms (para 42):

In essence [Ms Cheng] said she acknowledges the gravity of her offending, but she says she is at no risk or low risk of reoffending, that she has taken extensive steps towards rehabilitation, that the best interests of the Australian community includes acknowledging the personal advances she has made; that the best interest of Mr A is a primary consideration for her to remain in Australia, that she has strong ties to Australia but limited ties to Hong Kong, that she would experience serious impediments if deported, that she has adequate arrangements in place for accommodation and employment in Australia, and that humanitarian considerations ought to weigh in favour for the cancellation decision to be revoked.

(footnotes omitted)

8    The reference to Mr A is to Ms Cheng's son who was 9 years of age at the time of the Tribunal's decision. Ms Cheng has formally separated from the father of Mr A. They have joint custody of Mr A. The child's father and grandparents (the parents of the child's father) gave evidence to the Tribunal. They are all involved in the care of Mr A. There were others who gave evidence.

9    As to the significance of Ms Cheng's conviction and sentence, the Tribunal found that it could not 'go behind' the conviction or findings of fact on which the sentence imposed on Ms Cheng was based. As to the findings on sentencing, the Tribunal member said (para 51): 'to the extent that I have any discretion to go behind the specific factual findings made on sentencing, I do not consider there is any basis to do so on the evidence before me'.

10    In dealing with the nature and seriousness of Ms Cheng's criminal offending, the Tribunal's reasons included consideration of material before the Tribunal as to her past drug use.

11    In considering the risk to the Australian community should Ms Cheng re-offend, the Tribunal referred to evidence given by Mr Sam Albassit, a clinical psychologist who had provided a report as to Ms Cheng's risk of re-offending. The Tribunal found that there was a higher than low likelihood of Ms Cheng engaging in further offences or other serious conduct (para 100). The Tribunal gave little weight to the opinion of Mr Albassit. It did so on the basis of findings that he had not applied any diagnostic test or scientific credit tool to ascertain the risk of Ms Cheng re-offending and had spent little time with Ms Cheng, relying mostly on what she had told him in a single interview. The Tribunal also made a finding that a statement by Mr Albassit about Ms Cheng's current psychological presentation not indicating a tendency towards behaviour that would place the Australian community at risk failed 'to adequately account for the long-term drug use of [Ms Cheng], her previous unsuccessful attempt at rehabilitation; the escalation of her offending, and the impact of incarceration on the current conduct of [Ms Cheng]'.

12    As to risk of re-offending, the Tribunal found (para 101):

…there is, on balance, a higher than low likelihood of [Ms Cheng] reoffending if she were permitted to remain in the Australian community. I cannot assess with any degree of certainty the likelihood of reoffending, but I find that likelihood of her engaging in further offences or other serious conduct is higher than those of an ordinary member of society.

13    The Tribunal found that the protection of the Australian community weighs very seriously against revocation of the visa cancellation (para 103).

14    The Tribunal addressed other matters referred to in the Direction, including the best interests of Mr A. The Tribunal found that the best interests of Mr A weigh 'very seriously in favour of revocation' (para 133). The Tribunal separately addressed the expectations of the Australian community and in the course of doing so found (para 143):

I do not accept the submission of [Ms Cheng] that this consideration should be individualised. The expectation of the Australian community is that a non-citizen who engages in serious conduct in breach of the expectations of the community that they ought to obey Australian law, ought not to be allowed to remain in Australia. The expectation of the Australian community is expressed by the Government.

15    The Tribunal addressed the legal consequences of the decision (paras 149 to 157) finding that those consequences weighed neutrally (para 157).

16    The Tribunal also addressed the outcome of Ms Cheng's unresolved partner visa application, reasoning as follows (para 169 and 170):

[Ms Cheng] said the unresolved consideration of her partner visa application is a relevant other consideration to be considered. [Ms Cheng] has not been successful in obtaining a partner visa, but General Member A Goodier remitted the application on 17 February 2026 for the Minister to consider the special circumstances of [Ms Cheng] for the exercise of ministerial discretion for the Applicant to remain in Australia. [Ms Cheng] also said that there were other 'reasons of a humanitarian nature' that seriously weigh in support of revocation. Those considerations include the hardship likely to be experience when [Ms Cheng] is deported to Hong Kong; the disruption of family live impacting on her, Mr A, and the other listed family members; the future prospects of [Ms Cheng], and best interests of Mr A.

The Minister said these considerations ought not be treated as distinct to the primary and other considerations considered above. These are, in effect, a repeat of what has already been covered.

(footnotes omitted)

The Tribunal accepted the Minister's position (para 171) and found that no weight was to be attached 'to this proposed other consideration' (para 172).

17    The Tribunal then reasoned as to its conclusion. In doing so it stated that it 'must weigh the various primary and other relevant considerations outlined in [the Direction] against each other and undertake an evaluation of whether there is 'another reason' why the [visa cancellation] should be revoked' (para 176). The Tribunal said that it had determined the weight to be applied to each consideration and had 'gone on to compare and balance all of the considerations' (para 177). The Tribunal then listed the conclusions it had reached in the body of its reasons as to the weight to be attributed to each consideration. The Tribunal then found as follows (para 188):

Having weighed the considerations in favour of the revocation of the [visa cancellation] and the considerations against revocation, I find that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the considerations weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia, the best interests of Mr A, and the other consideration of the extent of impediments if removed. The considerations of family violence, legal consequences, impact on Australian business interests, and humanitarian considerations are given neutral weight. I do not agree with the approach adopted by [Ms Cheng] whereby the respective primary and secondary considerations are tallied and counted as if a mathematical exercise. This is, overall, a holistic exercise whereby I take into account all the evidence and consider all the primary and other considerations to reach an overall conclusion on whether there is another reason why the reviewable decision should be affirmed or revoked.

(footnote omitted)

18    The Tribunal recorded its final conclusion as to whether there was another reason to revoke the visa cancellation in the following terms (para 189):

In summary, having regard to all the primary considerations and the relevant other considerations in [Direction 110], I am satisfied that there is not another reason why the [visa cancellation] should be revoked.

The review grounds

19    The review grounds are long with extensive particulars. To consider their merits, it is necessary to seek to extract the nature of the jurisdictional error alleged by each ground.

20    In certain respects, the first two grounds use language which suggests alleged factual error of a kind that might be advanced where there was an appeal by way of rehearing. For example, aspects of the grounds are to the effect that certain findings were not reasonably open on the evidence or were made on an erroneous factual basis or was contrary to certain evidence. Claims of that kind do not raise allegations of jurisdictional error because the Tribunal is entrusted with authority to determine factual matters; see my recent reasoning in BNE24 v Minister for Immigration and Citizenship [2026] FCA 1561 at [6]-[7].

21    Additionally, as to the second ground, it is formulated (in part) in terms that there was a failure by the Tribunal to take into account a 'substantial and compelling body of evidence' directly relevant to a mandatory consideration. Again, the extent to which material may be considered to be factually significant when addressing matters to which the Tribunal was required to have regard by reason of the terms of the Direction was a matter entrusted to the Tribunal. It is not for this Court on review to assume part or all of that decision-making task. Rather, to establish jurisdictional error, it is necessary for Ms Cheng to demonstrate some respect in which the Tribunal's approach to fact-finding exceeded its decision-making authority. Mere disagreement with the Tribunal's factual findings does not demonstrate excess of authority. Further, a failure by the Tribunal to refer to particular evidence may reflect a view taken by the Tribunal that the evidence is not substantial or compelling. It may also reflect the way in which issues were raised or would otherwise be apparent to the Tribunal.

22    However, taking account of the grounds as a whole, I do not regard these aspects to be advanced independently. Rather, they were intended to be ways of expressing support for other types of alleged jurisdictional error.

23    Having considered the grounds and the submissions advanced to support them, I understand the jurisdictional errors alleged to be to the following effect:

(1)    Error in the approach to fact finding concerning Ms Cheng's history of drug use. The Tribunal's reasoning as to Ms Cheng's history of serious drug use (in the context of considering her risk of re-offending) is alleged to have involved a reviewable error of law because it departed from a finding of fact made by the sentencing judge. The finding of the sentencing judge was to the effect that there can be no doubt that Ms Cheng was involved in drug dealing for financial gain as demonstrated in part by the fact that she did not use illicit drugs herself. The alleged departure from that finding is said to exceed the Tribunal's authority which required it to give effect to the findings of the sentencing judge when making a decision for the purposes of s 501CA(4). Additionally, the Tribunal is alleged to have found that Ms Cheng used drugs until shortly prior to her incarceration when the only evidence of her drug usage at that time is said to be to the contrary (being a form of no evidence, irrationality or unreasonableness ground).

(2)    Error in failing to advert to, understand and evaluate the significance of an extensive body of material relied upon by the applicant. In considering the likelihood of Ms Cheng engaging in further criminal or other serious conduct, the Tribunal allegedly did not perform its factual decision-making task when it came to (a) the terms of a Parole Board order; (b) ten individual management plans; (c) certificates of completion for various programs; and (d) evidence of Ms Cheng's social links built and engaged in during her incarceration. In consequence the Tribunal is alleged to have failed to engage with 'substantial and significant material' before the Tribunal as to her ongoing risk to the community and her social links to Australian citizens and permanent residents.

(3)    Error in misconstruing and misapplying para 8.5 of the Direction. The Tribunal is alleged to have misconstrued and misapplied para 8.5 of the Direction by treating 'the generic seriousness of [Ms Cheng's] offending under [para 5.2] as automatically determinative of the weight to be accorded to the distinct consideration of community expectations under [para 8.5]'.

(4)    Error in misconstruing and misapplying para 9.1 of the Direction. The Tribunal is alleged to have misconstrued the scope of para 9.1 of the Direction when it came to the requirement to take into account, where relevant, the legal consequences of the decision for Ms Cheng.

24    I will now deal with each of those grounds.

Ground 1: Alleged error in the approach to fact finding concerning Ms Cheng's history of drug use.

25    It is important to differentiate between the two distinct claims advanced as part of Ground 1. The first claim concerns the Tribunal's alleged approach to the sentencing remarks of the sentencing judge. It relies upon the reasoning in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121. In that regard, as has been mentioned, the Tribunal itself referred to HZCP. It footnoted a passage from the reasons of McKerracher J at [78] in that case for the proposition that the Tribunal cannot go behind a conviction.

26    In HZCP, an attempt had been made before the Tribunal to impugn the facts as found by a sentencing judge when it came to offending that was the basis for the cancellation of a visa under s 501(3A). McKerracher J found at [79] that the Tribunal in that case: 'was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained'. That was because the power to revoke the cancellation proceeded on the basis that there had been a cancellation based upon a conviction and sentence. Those matters were the statutorily assumed factual foundation for the visa cancellation. Therefore, in claiming that the visa cancellation should be revoked, it was not open to go behind the conviction and sentence.

27    The first claim made for the purposes of Ground 1 is to the effect that the Tribunal, in the present case, did go behind the findings of the sentencing judge by considering material advanced to the Tribunal concerning Ms Cheng's history of drug use.

28    The second claim made for the purposes of Ground 1 focusses upon the Tribunal's factual findings as to what the material before the Tribunal showed concerning Ms Cheng's history of drug use.

29    As to Ms Cheng's history of drug use, the written contentions advanced by Ms Cheng before the Tribunal included the following:

While the sentencing remarks refer to intercepted communications and coded language, [Ms Cheng] submits that the evidence relied upon must be assessed in its proper context. [Ms Cheng] was not the organiser of a sophisticated transnational syndicate, nor the originator or controller of supply chains. Her involvement occurred in the context of a relationship with her then partner and co-offender, and in circumstances where her judgment was significantly impaired by emotional vulnerability, financial pressure, and substance-related issues at the time.

[Ms Cheng] accepts responsibility for her conduct. However, she disputes the Minister's inference that she occupied a senior or directing role in a broader criminal enterprise. The characterisation of her role as 'facilitator and organiser' reflects participation in communications rather than evidence of leadership, control, or financial gain commensurate with a managerial position in a drug trafficking operation.

Properly understood, [Ms Cheng's] conduct reflects participation at a lower level of criminal culpability than that asserted by the Minister.

[Ms Cheng] submits that the Tribunal is required to consider the whole context of the offending, including:

•    [Ms Cheng's] personal circumstances at the time, including vulnerability and emotional dependence on her co-offender partner;

•    her history of prior drug exposure and rehabilitation attempts;

•    the absence of any subsequent offending over a significant period of incarceration and supervision; and

•    the fact that she has since demonstrated sustained rehabilitation and insight into the harm caused.

(added emphasis)

30    In short, Ms Cheng advanced submissions to the Tribunal based on her past 'drug exposure and rehabilitation attempts'. The reference in the passage quoted above to assertions by the Minister appears to be in response to the reasons provided for the decision by the delegate that was under review before the Tribunal.

31    Before the Tribunal, Ms Cheng also relied upon the report of Mr Albassit which included the following statements:

Ms Cheng said that she lacked guidance and direction during her childhood. She navigated towards an anti-social crowd at the age of 14. She said that she was introduced to illicit substances in and around that time. Ms Cheng said that she stopped going to school and predominantly spent her time on the streets. Ms Cheng stated that she began consuming Crystal Methylamphetamine (Ice) at first casually, but by the time she was 16 she was consuming the drug excessively.

Ms Cheng said that she was living her life recklessly. She said that she was associating with an anti-social crowd and committing petty crimes. She said that she was consuming drugs regularly and struggled to find employment. Ms Cheng said that she was able to gain employment at the age of 19 and worked sporadically as her dependence on drugs affected her capacity to carry out her day to day activities.

Ms Cheng said that she attended a five-month drug and alcohol; rehabilitation program in Hong Kong at the age of approximately 25. She managed to cease use, and commented that she finally understood the damage drugs were doing to her and in the community.

Ms Cheng became abstinent from drugs, and gained employment in the information and communication technology industry where she was employed for approximately four years.

…

According to the available information, Ms Cheng did not have a past history of offending, and her drug use ceased at the age of approximately 25, after completing a five month drug and alcohol rehabilitation program in Hong Kong.

32    Ms Cheng also gave evidence to the Tribunal about her history of drug use. In a statement that was before the Tribunal she said:

In my younger years I used methamphetamine from around 13 to 25 years old. When I was pregnant with [my son] I stopped using. Now, I have been sober for almost 8 years and have no intention to use or have any interactions with drugs again. I have done multiple rehabilitation courses while I was in prison and now immigration detention. After learning more, I understand that I would not put myself or others in that position again. In Wandoo Prison, I learnt consequential thinking and box breathing. I completed extensive drug programs so that I have robust strategies to take with me back into the Australian community. This will mean that I do not resort to drug use, do not put my son's future in jeopardy again, and can be a positive member of the community.

33    Therefore, Ms Cheng's own case before the Tribunal invited the Tribunal to consider her past history of drug use and sought to persuade the Tribunal as to her rehabilitation.

34    It appears to be common ground that Ms Cheng arrived in Australia in 2013 on a working holiday and returned to Australia in 2015 when she established a relationship and became pregnant. Her conviction for drug offences was in 2018.

35    Before the Tribunal the Minister advanced a submission in the following terms concerning the above submission advanced for Ms Cheng:

Limited weight should be placed on her character references as her support network did not prevent her from committing crimes in the past and there is no compelling evidence to suggest that the same support would be any more effective in the future. As for the suggestion that her parenting role in relation to her son is a 'central protective factor now in place' (AS/18, [86]), this overlooks that her parenting responsibilities did not prevent her relapsing to illicit drug use in the lead up to her criminal trial to 'manage her fear and stress'.

(footnote and emphasis omitted)

36    The second claim made by Ground 1 is that the Tribunal found that Ms Cheng used drugs until shortly before her incarceration when there was no basis for that finding.

The first claim: alleged error by reason of factual findings of sentencing judge

37    The written submissions in support of the first claim made as part of ground 1 focussed upon para 100 of the Tribunal's reasons. It was in the section of the reasons concerned with the risk of Ms Cheng re-offending or engaging in other serious conduct. It was said that the following findings by the Tribunal were 'directly contrary' to those of the sentencing judge:

[Ms Cheng] had used drugs from the age of around 13 to shortly prior to her being imprisoned. Although she has not used drugs while being incarcerated, her previous rehabilitation was not successful, and her current rehabilitation has not been tested in the community.

[Ms Cheng], before coming to Australia, self-admitted to rehabilitation in Hong Kong. After having completed rehabilitation, the Applicant again used drugs, and continued the use while being in Australia, and was ultimately convicted for the index offences. Her conduct prior to incarceration shows an increase in severity.

…

[After referring to aspects of the report of Mr Albassit] The statement by Mr Albassit that [Ms Cheng's] 'current psychological presentation does not indicate a tendency towards behaviour that would place the Australian community at risk', fails to adequately account for the long-term drug use of [Ms Cheng], her previous unsuccessful attempt at rehabilitation, the escalation of her offending, and the impact of incarceration on the current conduct of [Ms Cheng].

(footnote omitted)

38    The relevant part of the sentencing remarks relied upon by Ms Cheng in support of the first claim made as part of Ground 1 is as follows:

There can be no doubt, and it is an aggravating factor, that you were involved in this transaction for financial gain. Your involvement for financial gain is demonstrated not only by the very large quantity of the drug you were expecting to obtain, 500 grams, and the drug you were expecting Mr Astill to receive, also 500 grams. It is demonstrated by the fact that you did not use illicit drugs yourself. You denied having used methylamphetamine and that is something you have consistently maintained to the authors of the reports I have obtained for sentencing.

(emphasis added)

39    I observe that it is by no means clear that the finding by the sentencing judge was to the effect that the applicant had never been a drug user. Rather, in a part of the sentencing remarks dealing with the circumstances of offending, the sentencing judge recorded an acceptance that Ms Cheng did not use illicit drugs. In my view, that should be read as a finding that concerned the circumstances at the time of offending. It was not until much later in the sentencing remarks that consideration was given to Ms Cheng's personal circumstances. That later part of the remarks does not address whether Ms Cheng had a history of drug use. There is a reference to Ms Cheng being pregnant with her son at the time of the offending and sentencing.

40    The submission advanced by Ms Cheng as to an alleged departure from what was required of the Tribunal by the reasoning in HZCP was in the following terms:

…the Tribunal found that [Ms Cheng] 'had used drugs from the age of around 13 to shortly prior to her being imprisoned', that her 'previous rehabilitation' in Hong Kong had failed, and that her 'current rehabilitation' had not been tested in the community. [Ms Cheng's] evidence to the Tribunal was that she had 'used methamphetamine from around 13 to 25 years old', but had ceased prior to her pregnancy, some 24 months prior to her incarceration.

(footnotes omitted).

41    It was further submitted that there was an inconsistency between the Tribunal's reasoning as to the significance for Ms Cheng's past history of drug use and her risk of reoffending (on the one hand) and the findings by the sentencing judge that the purely financial motivation of Ms Cheng confirmed by the fact that she was not a drug user was an aggravating factor (on the other hand). It was said that there was no basis to go behind the specific factual findings on sentencing to the effect that Ms Cheng was not a drug user.

42    It was also submitted that the Tribunal reasoned that there has been an increase in the severity of Ms Cheng's behaviour over time which was also said to be inconsistent with the finding at sentencing that Ms Cheng was not herself a user of methamphetamine.

43    It may be accepted that part of the Tribunal's reasoning was to the effect that there had been an escalation in Ms Cheng's offending (otherwise described by the Tribunal as an escalation in the severity in her drug taking (para 100(b)). However, the Tribunal also found that the role of Ms Cheng in the index offences was 'by organising the dealing for financial gain' (para 100(d)).

44    I do not regard the Tribunal's findings as to Ms Cheng's history as a drug user in the past to be inconsistent with the finding made by the sentencing judge to the effect that Ms Cheng was not a user at the time of offending and was engaged in the offending for financial reward.

45    Earlier in its reasons, the Tribunal has described Ms Cheng's past drug use 'until she fell pregnant with Mr A' (para 61). The Tribunal referred to Ms Cheng's evidence that she had been 'a serious drug user between the ages of 13 and 25 while she was in Hong Kong (para 62) and her admission to using drugs thereafter, while in Australia. The Tribunal then put these matters together with Ms Cheng's offending in the following way (para 63):

[Ms Cheng's] conduct in the long term use of, and dealing in drugs for commercial gain, gave rise to her receiving a substantial custodial sentence…In sentencing remarks, the sentencing judge took account of the quantity of drugs, the financial gain sought, and the negative impact of drugs on society'

46    These passages of reasoning by the Tribunal distinguish between past drug use and drug use at the time of sentencing when the Tribunal describes Ms Cheng as acting for financial gain (a description consistent with the sentencing remarks). They are consistent with the sentencing remarks and, significantly, engage with the case as put by Ms Cheng to the Tribunal.

47    Earlier, the Tribunal summarised various submissions put by the Minister. In the course of doing so, the Tribunal recorded the following (para 54):

The Minister identified what it saw as relevant findings and observations by [the] sentencing judge…, namely: The jury rejected the evidence of [Ms Cheng] that she thought the substance was sugar; the jury rejected the evidence of [Ms Cheng] that she was acting under some form of duress; the judge observed that [Ms Cheng] had likely been involved in illicit drug use and dealing prior to the commitment of the index offences and she played a 'pivotal role' in the index offences; [Ms Cheng] was involved in the index offences for financial gain; and although [Ms Cheng] may have experienced anxiety and stress at the time of the index offences, there was no evidence to suggest her mental health contributed to her offending or to reduce her culpability.

(footnotes omitted, emphasis added)

48    The highlighted phrase in the above passage does refer to likely involvement by Ms Cheng in illicit drug use. There was no statement to that effect in the sentencing remarks. The above passage appears to be a summary of matters addressed by the Minister in written submissions to the Tribunal because they follow the sequence and language of those submissions. Those submissions referred to the matters addressed by the sentencing remarks and included a submission that the remarks said that Ms Cheng 'had been involved in the business of illicit drug distribution prior to the 11 May transaction, including selling methylamphetamine to CA on previous occasions'. The Minister's submissions included the following as the fifth relevant matters addressed in the sentencing remarks:

There can be 'no doubt, and it is an aggravating factor' that [Ms Cheng] was involved in the transaction for financial gain. [This] was demonstrated by the very large quantity of the drug she expected to obtain and CA to receive (one kilogram in total), that the applicant was not a drug user and recorded discussions the applicant had with others in relation to the price and profit she would make…

(italics in original)

49    The submission refers expressly to the sentencing finding to the effect that Ms Cheng was not a drug user. This part is summarised by the Tribunal by saying that Ms Cheng was involved in the offending for financial gain. The Minister's submission itself does not refer to the sentencing remarks as including a description of Ms Cheng as having been a drug user. Additionally, as has been explained, when dealing with the material before the Tribunal, the finding actually made is to the effect that Ms Cheng ceased being a drug user when she became pregnant. I do not regard the inaccurate recording by the Tribunal of the terms of the Minister's submission as to what was included in the sentencing remarks as involving a finding by the Tribunal that Ms Cheng was a drug user at the time of her sentencing (contrary to the finding by the sentencing judge).

50    Significantly, the sentencing remarks concerning Ms Cheng not being a drug user formed part of the remarks that addressed the circumstances of the offending. They were not dealing with whether Ms Cheng had previously been a drug user. The issue of significance for the sentencing judge was whether Ms Cheng's behaviour at the time of offending might be explained by drug use on her part at that time. Notwithstanding the error by the Tribunal when recording the submission made by the Minister as to what had been said in the sentencing remarks, by the time of the Tribunal's findings at paras 61 to 63 and para 100, it is clear that the Tribunal is focussed on the period until Ms Cheng fell pregnant and consistently refers to her conduct at the time of offending as being engaged in for financial gain.

51    Further, the reference to increasing seriousness in the conduct of Ms Cheng is first explained as 'increasing seriousness…from her being a user of drugs, to her becoming a dealer in drugs for commercial gain' (para 62). Reading the Tribunal's reasons as a whole that change in Ms Cheng's activities over time is recognised by the Tribunal in its reasoning. Nothing in that approach is inconsistent with the sentencing findings (and therefore is not contrary to HZCP). As I have explained, the relevant part of the sentencing remarks is properly to be understood as a finding that Ms Cheng was not a drug user at the time of offending. The Tribunal's reasons concerned Ms Cheng's earlier history of drug use and recorded a finding that her use ended when she became pregnant. These matters were consistent with the sentencing judge's findings (which did not deal with whether Ms Cheng had an earlier history as a drug user) and engaged with the case as put by Ms Cheng which sought to explain her rehabilitation from her past drug use.

52    In HZCP, I agreed with the conclusion reached by McKerracher J, but added some observations of my own. They included the following (at [195]-[196]):

In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.

The statement by the Tribunal in the present instance that it could not examine the facts upon which the conviction was based, must be understood in a context where the Tribunal was invited to make factual findings that were contrary to those made by the sentencing judge in passing the sentence that enlivened the statutory power to be exercised by the Tribunal on review. It did not mean that it could ignore those facts. It meant that the Tribunal could not scrutinise or go behind those findings when reaching a decision as to whether it was satisfied that there was 'another reason' to revoke the decision under s 501(3A) to cancel the appellant's visa. The Tribunal was correct in that view.

53    In the present case, there was no such attempt by Ms Cheng and, for reasons that have been given, no such reasoning by the Tribunal.

54    The Minister advanced a submission to the effect that the finding by the sentencing judge to the effect that Ms Cheng was not a drug user at the time of offending was not a finding essential to the sentence and, on that basis, the reasoning in HZCP did not apply. Those submissions pointed out that the relevant finding was made when dealing with the circumstances of offending. However, they also sought to submit that the finding as to Ms Cheng's drug use was not 'essential' and therefore was not a finding to which HZCP applied. For reasons I have given, I prefer to deal with the first part of Ground 1 on the basis that the premise for the ground (that there was some form of finding that Ms Cheng had not been a drug user) has not been established.

55    In any event, Ms Cheng's evidence as to her past drug use did not seek to challenge the basis on which she had been sentenced. She had been sentenced on the basis that she had not been a drug user at the time of her offending. She was not sentenced on the basis of any finding as to whether she had been a drug user in the past. So, even if the finding by the sentencing judge is to be construed as a finding that Ms Cheng had never been a drug user, it was only the finding as at the time of offending that supported the sentencing. The principles in HZCP did not concern factual findings that did not support the sentence that was made.

56    It follows that there was no jurisdictional error by the Tribunal in considering the material advanced by Ms Cheng concerning her history of drug use before the drug offending for which she was convicted and sentenced and which formed the basis for the cancellation of her visa.

The second claim: alleged error in finding Ms Cheng used drugs until shortly prior to her incarceration when the only evidence of her drug usage at that time was to the contrary

57    The second claim made as part of Ground 1 is premised on a contention that the Tribunal found that Ms Cheng used drugs until shortly prior to her incarceration.

58    The submission focussed upon the finding by the Tribunal at para 100(a) where the Tribunal described Ms Cheng as having 'used drugs from the age of around 13 to shortly prior to her being imprisoned'. The Tribunal's language is to be understood in the context of a timeline where there is no dispute that there was material before the Tribunal as to her drug use between the ages of 13 and 25 and further drug use after that in Australia. As has been mentioned, the findings by the Tribunal at paras 61 to 63 were to the effect that Ms Cheng had been a drug user between the ages of 13 and 25 whilst in Hong Kong and that she also used drugs while in Australia (when she was older than 25). However, the finding made was that she used drugs 'until she fell pregnant with Mr A'. The contention advanced was that Ms Cheng's pregnancy started over 2 years before her incarceration.

59    In the above circumstances the submission amounts to a claim that, in the context of Ms Cheng's long history of drug use' the words 'shortly prior' were not supported by the evidence. Reading the Tribunal's words without an eye attuned to error, and considering the context of the Tribunal's other findings as to drug use, I regard the expression shortly prior to refer to the long history of drug use up until Ms Cheng fell pregnant. Therefore, the premise for the second claim forming part of Ground 1 is not established.

60    Further, even if the error was established, it was a factual error minor in degree and consequence which fell well short of any basis upon which unreasonableness or illogicality in the Tribunal's overall approach to fact-finding may be demonstrated.

61    Ms Cheng also took issue with the Tribunal's finding that she had explained to the Tribunal that she had been 'a serious drug user' on the basis that she did not give evidence in those terms. The Tribunal did not need to support that finding by the use of that precise language by Ms Cheng herself. There was ample material advanced by Ms Cheng herself to support that characterisation of her history of drug use.

62    A submission was advanced to the effect that the Tribunal had conflated two notions of rehabilitation in reaching conclusions concerning the rehabilitation of Ms Cheng. It was said that at times the Tribunal used rehabilitation to refer to the rehabilitation from offending which involves an appreciation for the law, education and training alternatives. This was contrasted to rehabilitation from drug use. This was said to demonstrate a misunderstanding of the nature of the submission.

63    The submission was put at a high level of generality. It was not indicated how the different usage might be said to have led to some form of misunderstanding of the material before the Tribunal or the contentions advanced for Ms Cheng. Usage by the Tribunal of the same term to describe different concepts of rehabilitation does not demonstrate jurisdictional error. Both concepts were relevant to the Tribunal's reasoning.

Ground (2): Alleged error in failing to advert to, understand and evaluate the significance of an extensive body of material relied upon by the applicant

64    Ms Cheng contended that the evidence before the Tribunal 'included a substantial, uncontradicted primary institutional records spanning 2020 to 2025'. It was said to comprise the Parole Board Order, ten Department of Justice management plans and certificates of completion of rehabilitation programs, employment-related programs and life-planning programs.

65    As to these matters, at para 100(k), the Tribunal found:

I accept that [Ms Cheng] is deeply remorseful for the index offences. She has stated so repeatedly to me and several witnesses affirmed that she has insight into the wrongfulness of what she did and committed not to repeat it. [Ms Cheng] has attended several courses to assist her with rehabilitation. She is described as a role model in prison and was a mentor for other inmates. She understands the harmful effects of drugs and is committed not to reoffend.

66    The above finding is clearly very favourable to Ms Cheng. It accepts her deep remorse, her insight into her offending and her commitment to rehabilitation. Having made those findings in those terms it could not be said that the failure to refer in detail to the institutional records that supported those findings constituted some form of failure to undertake the fact-finding task or to advert to, understand and evaluate the institutional records. On the contrary, it indicated an acceptance of the force of those records.

67    Separately, it was said that the material demonstrated social links established by Ms Cheng while in custody serving her sentence which was not brought to account when considering her ties to the Australian community (being one of the matters to which the Tribunal was required to have regard by the terms of the Direction). It was said that there was a failure to engage in the decision-making task when it came to that alleged 'substantial and significant material' when making findings as to Ms Cheng's ties.

68    The Tribunal referred to Ms Cheng's ties to family members (especially her ties to Mr A) and to the Australia community in terms that reflected the contentions advanced by her to the Tribunal. Those submissions were introduced in the following terms:

[Ms Cheng] has now resided in Australia for over a decade. More importantly, her formative life events in adulthood have occurred in Australia, including:

•    the birth of her only child;

•    the development and maintenance of a long-term co-parenting relationship;

•    her extensive rehabilitation and reintegration efforts; and

•    the establishment of deep and ongoing social and family networks

69    It may be noted that those submissions did not refer to alleged ties made whilst in prison. Later in the submissions there was the following further submission: '[Ms Cheng's] ties to Australia are further strengthened by her rehabilitation trajectory, which has occurred entirely within the Australian correctional and community context'. However, the submission focussed upon her rehabilitation activities. It did not suggest that there were personal ties that were of significance.

70    In those circumstances, it was open to the Tribunal to approach its fact-finding task concerning the ties of Ms Cheng to Australia in the way in which it did.

71    Although not mentioned in the particulars to Ground 2, Ms Cheng made submissions in support of Ground 2 to the effect that the Tribunal 'did not…meaningfully engage with the information' that an investigation by the Department of Communities into the safety of Mr A related to concerns of emotional abuse and family domestic violence of Ms Cheng's former partner (the father of Mr A) towards his current wife.

72    Ultimately, the submission made was to the effect that the Tribunal's finding about the parental arrangement that was in place for Mr A was made without any reference to the risk that the parental arrangement was putting Mr A at risk of family domestic violence and that all adults who were responsible for the best interests of Mr A (including his father) preferred that he live with Ms Cheng.

73    The Tribunal was required by the Direction to have regard to the best interests of Mr A as a minor child in Australia affected by the decision to be made by the Tribunal. It dealt with the interests of Mr A in some detail (paras 119 to 134). The Tribunal found expressly that the best interests of Mr A weigh very seriously in favour of revocation of the visa cancellation (para 133). As to the alternative parenting arrangement in place for Mr A, the Tribunal found:

There is already an alternative parental arrangement in place and those have enabled Mr A to function well at school, to be socially adapted, and to function with telephone and weekly in-person support from [Ms Cheng]. Mr A receives care from his father and parental grandparents. He performs well at school and, according to evidence before me, is generally a happy and well-functioning child. [Ms Cheng] also said in oral evidence that the current accommodation arrangements for Mr A are likely to remain in place, but with him visiting [Ms Cheng] for sleepovers and short stays

74    The parenting arrangement in place is one which provides for Mr A to be cared for by his father and paternal grandparents.

75    Significantly, the submission advanced did not point to any evidence beyond the open safety investigation which was said to arise from concerns of abuse related to Mr A's father directed towards his current wife. No submission was advanced by Ms Cheng to the Tribunal to the effect that there was a risk to Mr A if he was to stay in the household of his father. On the contrary, the submission relied expressly on the following statement in the report of Mr Albassit (whilst noting evidence that suggested that Mr A's relationship with his current wife is unstable):

[Ms A] has been raised…in a stable caregiving arrangement with his father and grandmother. This has provided consistency, routine and support.

76    No submission was advanced by Ms Cheng to the Tribunal to the effect that Mr A's safety would be in jeopardy unless he was able to be in a household with Ms Cheng or that Ms Cheng was in a position to establish a separate household.

77    Nevertheless, a submission was advanced in support of the appeal that there was a failure to engage with evidence of risk to Mr A. It was also said to be a matter that 'infected' the Tribunal's findings with respect to future risk to the community and the legal consequences of the decision. Respectfully, it is difficult to understand the precise character of these submissions and the extent to which they are advanced in support of Ground 2 or other grounds.

78    In circumstances where no case of the kind now suggested was raised before the Tribunal and where the only evidence pointed to is a single line in a report that referred to concern about abuse directed to the current wife of Mr A's partner and where Ms Cheng did not suggest that she would establish a separate household for her son rather than continue some form of shared parenting arrangement, I do not accept that there was any failure by the Tribunal to perform its decision-making function to consider and evaluate the evidence now relied upon.

79    The Tribunal does not have to refer to all the evidence. The Tribunal made findings based on other evidence that were positive about the relationship between Mr A's father and his current wife (para 117(f)).

80    No error of the kind alleged by Ground 2 has been demonstrated.

Ground (3): Alleged error in misconstruing and misapplying para 8.5 of the Direction.

81    Paragraph 8.5 of the Direction concerns 'Expectations of the Australian Community'. It begins by stating in sub-paragraph (1):

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

82    It then states in sub-paragraph (2):

In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind [with a list of kinds of conduct (a) to (f)].

83    The Tribunal made no finding that there was conduct of the kind listed in (a) to (f) of sub-para (2).

84    In its reasons, the Tribunal referred to the terms of sub-paras (1) and (2) (see paras 135 and 136). It then referred to the expectation of the Australian community that the Australian Government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct 'of particular kinds' (para 137). In doing so, the Tribunal simply stated one of the principles expressed in para 5.2(4) of the Direction, being the principles that provides the framework within which the Tribunal was required to approach its decision-making task and the language in sub-para (2) of para 8.5 (as quoted above).

85    The Tribunal then said:

The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)-(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered 'very seriously' or 'serious'.

86    As to this reasoning, Ms Cheng submitted that methamphetamine offences 'whilst capable of being very serious offences, are not included in that list'. It was submitted that the Tribunal was required to provide reasons for categorising Ms Cheng's offending as very serious because it could not rely on the list for that purpose. As to the Tribunal's actual reasoning as to seriousness, Ms Cheng advanced the following submission:

The Tribunal’s reasons for finding [Ms Cheng's] offending to be 'very serious' are tainted by reliance on the length of the sentence imposed by the Sentencing Judge in circumstances where the factual findings underpinning an aggravating factor were departed from by the Tribunal without explanation. The mere fact of the offending being a methamphetamine offence does not carry the inherent seriousness of a specified 8.5(2) offence and requires some reasonable basis for a finding of seriousness warranting the weight that the Tribunal gave to it.

87    Expressed in that way, the submission appears to assume success as to Ground 1.

88    The Tribunal recorded submissions advanced for Ms Cheng as to her particular circumstances, including the evidence of her rehabilitation and remorse (para 141). The Tribunal then recorded the Minister's submission to the effect that the views of the Australian community are articulated by Government and are not to be an individualised assessment of Ms Cheng (para 142).

89    The Tribunal accepted the Minister's submission (para 143). After referring to aspects of the principles stated in the Direction, the Tribunal then reasoned as follows (para 146):

The nature of the character concerns and the index offences for which [Ms Cheng] has been convicted is such that the Australian community would not expect the [visa cancellation] to be revoked. These are very serious offences that attracted a substantial term of imprisonment because the drug trade and drug use is a scourge for the Australian community. Accordingly, the expectation of the Australian community weighs heavily against revocation.

90    To reason in that way did not involve a conclusion being reached without considering the seriousness of the offending. Earlier in its reasons, the Tribunal had addressed in some detail the nature and seriousness of Ms Cheng's offending. The reasoning at this point must be considered in that context. Based on that reasoning, the Tribunal had found that the conduct giving rise to offending that was very serious (para 65).

91    To the extent that Ground 3 relies upon the matters advanced to support Ground 1, for reasons that have been given in dealing with that ground, Ground 3 must be rejected. To the extent that Ground 3 relies upon a submission that the Tribunal did not reason why the conduct was very serious, that submission has not been established.

92    In written reply submissions, Ms Cheng made a submission to the effect that the Tribunal treated the weight of community expectations as fixed irrespective of the individual circumstances of Ms Cheng. In effect, it was submitted that although the expectation of the Australian community was fixed by the terms of the Direction, there was still a requirement to form a view as to the weight to be given that expectation when making the required decision. This, it was said, was not done.

93    However, the Tribunal did refer to the principles as stated in the Direction in identifying other aspects that might cause the consideration of the expectations of the Australian community to be given lesser weight (see paras 144 to 146). The Tribunal then concluded: 'On balance, I find this primary consideration weighs very seriously against revocation'. Therefore, it was not the case that the Tribunal reasoned on the basis that the expectation of the Australian community were to be given a particular weight that did not have regard to the circumstances that pertained to Ms Cheng.

Ground (4): Alleged error in misconstruing and misapplying para 9.1 of the Direction

94    The Tribunal was required by the Direction to consider the legal consequences of its decision, where relevant (para 9). Ms Cheng submitted that there had been a number of legal consequences that had not been considered.

95    As to the requirement to consider 'legal consequences', the terms of the Direction reflect a statutory requirement that arises in respect of decision made under s 501CA(4): Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [15]-[16], [24]-[25] and [34] (Kiefel CJ, Keane, Gordon and Steward JJ) and Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523 at [138]-[139] (Robertson, Moshinsky and Bromwich JJ). The requirement is to consider legal consequences that form part of the legal framework of a discretionary decision under that legislation where those consequences flow from the decision by operation of the Act. Less obvious, less certain and less substantial legal consequences are unlikely to be a basis for the application of the principle: Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 130 at [66]-[67] (Collier, Neskovcin and Moore JJ).

96    As to legal consequences, the Tribunal stated (para 150) that the consequences of a visa refusal or cancellation include:

(a)    Unlawful status;

(b)    The likelihood of becoming subject to detention and/or removal;

(c)    Refusal of other visa applications and cancellation of other visas;

(d)    A prohibition on applying for other visas; and

(e)    Periods of exclusion and special return criteria may apply.

97    The Tribunal also reasoned (para 155) that on the material before the Tribunal no claims were raised that Ms Cheng would face harm on her return to Hong Kong that would give rise to a non-refoulement obligation. The Tribunal then recorded that the parties agreed that the consideration should be given neutral weight (para 156). These aspects of the reasons reflected the terms in which submissions were advanced to the Tribunal by Ms Cheng. She did not advance the matters in the terms now sought to be raised.

98    The particulars to Ground 4 identified the following alleged direct legal consequences flowing from a decision not to revoke the cancellation of Ms Cheng's visa, namely:

(1)    it was said to automatically trigger a refusal of her outstanding application for a partner visa;

(2)    it was said to frustrate existing Family Court orders by which Ms Cheng shared parental responsibility mandated time with Mr A which, as a matter of practicality could not be carried into effect if she was removed from Australia;

(3)    it was said to frustrate Ms Cheng's parole status and conditions;

(4)    it was said to create practical and humanitarian concerns for Ms Cheng on her return to Hong Kong because she would have to disclose the circumstances in which she was being returned.

99    Before considering each of these claims, I note that (2) and (3) do not deal with consequences that form part of the legal framework of the decision to be made by the Tribunal, namely whether to revoke the cancellation of Ms Cheng's visa on the basis of her conviction and sentence. The visa cancellation operates for the purposes of the Migration Act and has consequences for Ms Cheng's possible removal, the visa applications she can make now and in the future and possibly whether she will be held in detention pending her removal. No doubt there will be other indirect consequences which flow from the decision not to revoke the cancellation of her bridging visa. Those indirect consequences may even be said to be legal in character. However, it is not every such 'legal' consequence of the Tribunal's decision that must be considered by the Tribunal. Rather, it is the consequences in the wider legislative framework within which a decision for the purposes of s 501CA(4) takes effect to which the Tribunal must have regard. I am not persuaded that claims (2) or (3) fall within the scope of that requirement. Nevertheless, against the possibility that I am wrong in that view, I will consider each of the claims made.

100    As to (1), the consequences for Ms Cheng's partner visa application were separately considered by the Tribunal (paras 169 to 172). The Tribunal there accepted a submission by the Minister that the consequence for the partner visa application did not raise a consequence of a kind that had not already been considered. In effect, the legal consequence was that Ms Cheng's partner visa application could not be pursued and she would be removed. It was not suggested that there was some other aspect to the legal consequence. It was open to the Tribunal to deal with the legal consequence for the partner visa application in that way. In substance, it did not ignore the legal effect. It simply reasoned that the legal effect led to consequences of a kind that had already been considered.

101    As to (2), a decision not to revoke the cancellation of the visa would not directly or indirectly affect the Family Court orders. Rather, it would alter the factual circumstances in which those orders would operate because Ms Cheng would no longer be in Australia. It is not suggested that there was material before the Tribunal to indicate that Ms Cheng's legal rights under the parenting arrangements would change or her legal status or standing to seek orders would be affected. Her parental status would continue to be recognised by the Family Court. To the extent that the complaint is that there would practical difficulties for Ms Cheng in maintaining contact with Mr A if she was removed from Australia, it could not be said that a consequence of that kind was not considered by the Tribunal. It was the consequence that was behind the reasons why the Tribunal concluded that the best interests of Mr A weigh very seriously in favour of revocation. The Tribunal referred expressly to the submission by Ms Cheng about the impracticalities of maintaining close contact of she was removed (para 122).

102    As to (3), Ms Cheng's parole conditions were not affected by the decision. They remained unchanged. Rather, her migration status changed. The Tribunal's decision had no legal operation when it came to the parole conditions. It was submitted that a consequence of Ms Cheng's removal would be that she would be in breach of her parole conditions. The Minister did not dispute that contention. That aspect was not considered by the Tribunal (noting that it was not suggested that it had been put in those terms to the Tribunal). Therefore, if I had not reached the conclusion I have explained above as to (3) then it would be a legal consequence that was not considered. However, for reasons I have given above, it was not a legal consequence that the Tribunal was required to consider.

103    As to (4), as has been explained, those matters were addressed by the Tribunal. It concluded on the basis of the submission advanced by Ms Cheng that there were no such consequences. In the absence of any indication as to why that position may not be correct, the Tribunal was entitled to act on the basis of Ms Cheng's submissions in that regard. As was explained in Comcare v Fiedler [2001] FCA 1810; (2001) 115 FCR 328 at [39]:

The Tribunal is not, as a general rule, required to ignore the fact that one or both parties have made admissions or concessions, express or implied, that particular issues which the original decision-maker may have had to consider need not be the subject of inquiry and determination by the Tribunal. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision.

104    It follows that Ground 4 has not been made out.

Conclusion and orders

105    As none of the grounds of review have been made out the application must be dismissed with costs.

Associate:

Dated:    30 October 2026