HSNR v Minister for Immigration and Citizenship [2026] FCA 324

Federal Court of Australia|2026-03-25|Before: Moore J

The applicant advances a single ground of jurisdictional error, namely, that the Tribunal misconstrued the application of Primary Consideration 1 and arrived at a finding that was illogical. The applicant's originating application dated 7 August 2025 expressed that ground in the following way:
1. In deciding to affirm a decision of the first respondent to refuse to revoke the cancellation of the applicant's visa, the second respondent (Tribunal) acted on an incorrect understanding of the law and arrived at a finding that was illogical.

(a) When considering the first primary consideration in par. 8.1 of Ministerial Direction 110 (Direction 110), being "The Protection of the Australian community" the Tribunal conflated the seriousness of the applicant's criminal conduct with the nature of the potential harm to the Australian community should the applicant reoffend.

(b) In the present case the seriousness of the applicant's criminal conduct - involving the cultivation of large commercial quantity of cannabis - ought to have been assessed separately to the relative harm that the drug might cause, so that any such charge would be serious, regardless of the evidence of harm which the conduct might cause to the community.

Expressed simply, the applicant contends that, having regard to the two limbs in Primary Consideration 1, the Tribunal impermissibly imported considerations of the seriousness of the applicant's criminal conduct (i.e. the first limb) into its consideration of the risk to the Australian community if the applicant re-offended (i.e. the second limb).
The applicant does not seek to challenge the Tribunal's acceptance of Parliament's view that the offences the applicant committed were very serious offences for the purpose of the first limb. Rather, the applicant contends that the consideration of harm and risk to the Australian community under the second limb was a separate enquiry, which the Tribunal did not keep separate.
The applicant also characterised the error as one where the Tribunal permitted the seriousness of the offences for the purposes of criminal sentencing to "bleed into" its assessment under the second limb. When asked in the course of the hearing to identify the passages in the Reasons that demonstrated that impermissible "bleeding", the applicant identified paragraphs [69] and [72] of the Reasons.
As extracted above, the Tribunal stated at Reasons [69]:

Given the Tribunal has found, for reasons set out earlier, that the offences of cultivation and supply of a large commercial quantity of an illicit drug (including cannabis) to be serious, it is satisfied the nature of the potential harm to the Australian community if the Applicant commits further offenses or engages in other serious conduct would be serious. If this eventuated, such conduct could involve physical and psychological harm to members of the community

The Tribunal considers the potential harm to the Australian community as a result of the cultivation and supply of a large commercial quantity of illicit drugs - including cannabis - is serious, even if less so than other some other [sic] illicit drugs, tobacco and alcohol in terms of overall health burdens. At the time of the Tribunal's decision the cultivation and supply of commercial quantity of cannabis remains prohibited.

The applicant submits in its written submissions that it is apparent from these paragraphs that "the Tribunal said, in effect, given that the Tribunal had found (in the first leg) that the offences were serious, it followed that the harm to the community would also be serious" (emphasis in original).
In response, the Minister makes a number of points. First, the Minister submits that paragraph [69] of the Reasons "cannot be read divorced from the context in which it appears." The Minister points to other passages in the Reasons that the Minister says indicate that the Tribunal was undertaking a proper consideration of the second limb: i.e. the risk to the Australian community: Reasons [70] - [73], [108], [116] and [117].
Secondly, the Minister submits that in considering the second limb, one cannot divorce that consideration from a consideration of the seriousness of the criminal offending, because it is the potential for reoffending in the same manner that creates the relevant risk: i.e. that it is a large scale operation, that the applicant had a very significant role, and other matters going to objective seriousness. It follows, so the Minister submits, that there must necessarily be an interrelationship between the seriousness of the conduct and a consideration of the risk to the community. On that approach, some form of "bleeding" is in fact required for the purposes of proper analysis.

It is well settled that the reasons of the Tribunal must be read as a whole and should not 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) 185 CLR 259; [1996] HCA 6 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). In assessing whether the reasons of the Tribunal are vitiated by illogicality, this Court must be cautious to ensure it does not impermissibly engage in an assessment of the merits of the decision.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [135], Crennan and Bell JJ stated that a decision will be illogical or irrational if:

only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

Conversely, "a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker": SZMDS at [135].
This encapsulation by Crennan and Bell JJ of the "illogicality" ground has been endorsed by this Court, including the Full Court, on numerous occasions: see e.g. King v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 152 at [55] (Anderson, Feutrill and Raper JJ).
In CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61] (McKerracher, Griffiths and Rangiah JJ), the Full Court cited SZMDS at [124] and noted that "[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality."
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 (Griffiths, Perry and Bromwich JJ) at [47], the Full Court, quoting Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148], stated:

for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, "extreme" illogicality or irrationality must be shown "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal"

The Full Court in Archer v Minister for Immigration and Citizenship [2026] FCAFC 20 at [24] (Bromwich, Thawley and Kennett JJ) noted that the High Court's position is that "not every arguable logical weakness amounts to jurisdictional error - the question is whether the impugned step leads to a conclusion at which no rational or logical decision-maker could arrive on the same material."

When the Reasons are read as a whole, it is tolerably clear that the Tribunal gave separate consideration to the seriousness of the conduct (including as reflected by the treatment of that conduct by the criminal law) and the risk to the community from the possibility of the applicant reoffending.
It is clear that the Tribunal was cognisant of the applicant's contention that the risk of harm to the Australian community from cultivating cannabis had to be assessed separately from any consideration of the seriousness with which the criminal law treats that conduct for the purposes of sentencing. The Tribunal recorded this submission, and the relevant distinction, in the Reasons at [42], [43], [44] and [48].
The Tribunal then proceeded to give separate consideration of the risk which a re-occurrence of the cultivation and supply of cannabis would pose for the Australian community. Thus:

(a) at [50], the Tribunal observed that the cultivation and supply of a commercial quantity of cannabis had the potential to lead to harm to members of the Australian community;

(b) at [70], the Tribunal referred to the observations in GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 250 as to the "well recognised" harm which flows from the circulation and use of cannabis in the community, including physical dependence and mental health conditions;

(c) at [71], the Tribunal quoted from Australia's National Drug Strategy 2017 - 2026, which states that cannabis carries a significant burden of disease, in that it can result in various health impacts including mental illness, respiratory illness, and cognitive defects, and that is has particular implications for young adults because it is correlated with, and probably contributes to, mental disorders such as psychosis;

(d) at [72], the Tribunal drew a distinction between the impact of cannabis and other illicit drugs, as well as tobacco and alcohol, in terms of overall health burdens, but stated that the potential harm to the Australian community as a result of the cultivation and supply of a large commercial quantity of cannabis "is serious";

(e) at [73], the Tribunal concluded that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct "is likely to be considerable";

(f) at [108], the Tribunal observed that drugs, including cannabis, "can be very harmful to members of the Australian community"; and

(g) at [117], the Tribunal referred to the seriousness of the potential harm to individuals or the Australian community should the applicant engage in further criminal conduct, noting the harm that would be caused by the distribution of large amounts of drugs if repeated, "even cannabis".

None of these passages could be interpreted as the Tribunal concluding that the cultivation and supply of cannabis was a risk to the Australian community merely because the criminal law treated it as a serious matter. Further, by distinguishing cannabis from other drugs and treating cannabis separately, the Tribunal was acting consistently with the applicant's submissions to the Tribunal that there was a need to distinguish between criminal sentencing (which treated cannabis the same as other drugs) and the risk to the Australian community (where the impact of cannabis might be different from, and less than, other drugs).
The applicant's argument does not depend upon a construction of the Reasons whereby the Tribunal did not give any separate consideration to the risk of harm presented by a recurrence of the criminal offending to the Australian community. Rather, the applicant submits that the Tribunal allowed the seriousness of the conduct recognised by the criminal law to bleed into the second limb.
It may be recognised that there are certain passages in the Reasons which, if read in isolation, could provide some support for the applicant's contention. For example, Reasons [69] (set out above) states that given that Tribunal has found "for reasons set out earlier" that the relevant offences are serious, "it is satisfied [of] the nature of the potential harm to the Australian community if the Applicants commits further offenses ... would be serious." If that is merely a reference to its finding that the criminal law treats the offences as serious, then that could be problematic as the applicant suggests. Likewise, the last sentence of Reasons [72] refers to the cultivation and supply of cannabis remaining prohibited, when the balance of the paragraph is speaking of the potential harm to the Australian community. As the applicant submits, the prohibition of cannabis does not of itself address the question of risk of harm.
However, the reference in paragraph [69] to the reasons "set out earlier" includes paragraph [50] of the Reasons, which contains a statement about the potential for cannabis to lead to harm to members of the Australian community, and a note that this is "discussed in more detail below", which would include a reference to the Reasons at [70] - [73], [108] and [117]. In any event, it is not appropriate to read Reasons [69] in isolation, and there are other paragraphs that make the Tribunal's position plain on the risk that may arise from the commercial cultivation and supply of cannabis. Further, the reference to the offences being "serious" has a dual meaning, as the Minister submitted and as discussed below.
In relation to Reasons [72], the relevant reference is not the basis on which the Tribunal has reached a conclusion about the potential harm of the conduct in question, in light of other paragraphs, including adjacent paragraphs, that discuss that harm in a manner unconnected with the criminal law. Further, the continued illegality of cultivating cannabis could reflect, to some extent, an assessment by relevant authorities as to its potential for harm. It cannot be said to be irrelevant to the Tribunal's consideration, and it certainly does not appear to have been considered by the Tribunal to be determinative. As the Minister submits, this sentence appears, at least in part, to be a response to the applicant's submission before the Tribunal that cannabis had been decriminalised in the Australian Capital Territory.
Further, as the Minister submits, the first and second limbs of paragraph 8.1(2) of Direction 110 cannot be considered in isolation from each other. Under the second limb, the Tribunal is required to consider the risk to the Australian community "should the non-citizen commit further offences." The second limb of Primary Consideration 1 expressly notes (at paragraph 8.1.2(1)) that "[s]ome conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable." The second limb required the Tribunal to consider, cumulatively, the following considerations that are relevant to assessing the risk that may be posed by the applicant to the Australian community:

(a) the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and

(b) the likelihood of the applicant engaging in further criminal or other serious conduct.

The second limb thus requires consideration of the seriousness of the offences which the applicant committed, including objective matters as to the degree of culpability, because the risk which the Tribunal is considering includes, inter alia, the risk of these offences (or offences of a similar type) being committed again. References in the Reasons to the "seriousness" of the offences cannot sensibly be construed as limited to the seriousness with which the criminal law treats cannabis, but include references to the quantity of cannabis, the applicant's role, and other objective matters pertaining to culpability. The offences were considered by the Tribunal to be "serious" not just because the criminal law treats the commercial cultivation and supply of cannabis as serious, but also because (inter alia):

(a) the applicant's offending "involved the cultivation and supply of a large commercial quantity of a prohibited drug, cannabis": Reasons at [47];

(b) the applicant's involvement was significant as "she negotiated the price of the land, purchased the land, was involved in the purchase of the greenhouse and equipment" and "clearly played a very significant role in its operation": Reasons at [47];

(c) the applicant "was at a high echelon" and "very close to the top" of the operation: Reasons at [47]; and

(d) the applicant's criminality was in the mid-range of objective seriousness for an offence of this nature: Reasons at [49].

References by the Tribunal to "seriousness", when referring to the second limb, must be understood as including a reference to these matters, which are appropriate matters for the Tribunal to take into account in connection with the second limb.

Read as a whole, the Reasons do not involve any impermissible bleeding of the treatment of the relevant offences by the criminal law into the Tribunal's consideration of the second limb. Nor do the Reasons involve any illogicality. The Reasons do not contain the errors alleged by the applicant.
The application should be dismissed, with costs.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moore.

At the date of this decision, the applicant is a 36 year old woman who is a citizen of Vietnam. The applicant arrived in Australia on a student visa in 2009 when she was 19 years of age.
The applicant married her first husband in Vietnam in 2010, and she shares a son with him who was born in Vietnam in April 2011. It appears that the applicant's son continues to reside in Vietnam with his maternal grandmother. She divorced her first husband in late 2011.
Subsequently, the applicant married her second husband in Australia in 2012. In December 2019, she was granted a Partner (Class BS) (Subclass 801) visa (Partner Visa).
In August 2020, the applicant was arrested and charged with offences relating to the cultivation and supply of a commercial quantity of a prohibited drug, being cannabis.
On 7 April 2022, the applicant pleaded guilty to and was convicted by Judge Pickering SC of the New South Wales District Court for these offences, namely, knowingly taking part in the cultivation of a large commercial quantity of a prohibited plant (cannabis) and knowingly taking part in the supply of a large commercial quantity of a prohibited drug (cannabis) (2022 Offences). The applicant was sentenced to an aggregate term of imprisonment of 5 years and 6 months commencing on 27 August 2020, and expiring on 26 February 2025 with a non-parole period of 3 years and 2 months. The applicant was granted parole on 26 October 2023.
This was the applicant's first custodial sentence and, prior to this, the applicant did not have any history of criminal conduct.
On 26 July 2022, the applicant's Partner Visa was mandatorily cancelled under s 501(3A) of the Migration Act on the basis that she did not pass the "character test" as she was serving a sentence of imprisonment on a full time basis in a custodial institution. She sought revocation of the mandatory cancellation of her Partner Visa, and on 13 March 2024, a delegate of the Minister decided not to revoke the mandatory cancellation. The applicant sought merits review of that decision before the Tribunal who ultimately on 5 June 2024 affirmed the decision. That Tribunal decision is not the subject of this application for judicial review.
Subsequently, on 8 July 2024, the applicant applied for a Protection Visa. On 17 July 2024, a delegate of the Minister refused to grant the Protection Visa. That decision was the subject of merits review by the Tribunal who, on 18 November 2024, found that the applicant was owed protection obligations under s 36(2)(aa) of the Migration Act and set aside that decision and remitted the matter back to the Minister for reconsideration. That decision is not the subject of this application for judicial review.
On 11 February 2025, a delegate of the Minister gave notice to the applicant of its intention to consider the refusal of her application for a Protection Visa. The delegate invited the applicant to comment on the materials before the Minister that indicated that she may not pass the character test, and to provide reasons as to why the application should not be refused even if she did not pass the character test.
On 10 April 2025, a delegate of the Minister refused the applicant's application for a Protection Visa because she did not satisfy the character test under s 501(1) of the Migration Act. That decision was affirmed by the Tribunal on 3 July 2025. It is that decision which is the subject of the present application for judicial review.
The applicant is currently on a Bridging (Removal Pending) (Subclass 070) visa. If her application for a Protection Visa remains refused, her position thereafter may be affected by the decision of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37.

At the hearing before this Court, the applicant's counsel (who also appeared for the applicant before the Tribunal) said that paragraph [48] of the Reasons summarised submissions he had made, including by reference to the decision in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (Bromberg J) at [41] - [95], which is footnoted in the Reasons at [48].
In the Reasons at [50], the following passage appears:

After addressing those submissions, the Tribunal stated at Reasons [69] - [73] as follows (italics in original):
1. Given the Tribunal has found, for reasons set out earlier, that the offences of cultivation and supply of a large commercial quantity of an illicit drug (including cannabis) to be serious, it is satisfied the nature of the potential harm to the Australian community if the Applicant commits further offenses [sic] or engages in other serious conduct would be serious. If this eventuated, such conduct could involve physical and psychological harm to members of the community.
2. In GNRK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 250 the Member noted the 'well recognised' harm which flows from the circulation and use of cannabis in the community including short term and long-term effects was set out [sic], including physical dependence and mental health conditions including depression.
3. In the section on cannabis in Australia's National Drug Strategy 2017 - 2026 it states:

The Tribunal accepted that the risk of the applicant engaging in further criminal or serious conduct was low (at Reasons [111]) and accepted that the applicant had taken steps to improve her psychological vulnerability (at Reasons [113]). The Tribunal also acknowledged that the applicant's offending took place in the context of the applicant being under financial stress and undiagnosed mental health issues, but that she had undertaken programs to address those issues: Reasons [115]. The Tribunal noted that she was still under significant financial stress, in large part due to the debts her mother had incurred in Vietnam: Reasons [115].
However, the Tribunal's ultimate conclusion was that Primary Consideration 1 weighed moderately in favour of refusing the grant of the applicant's visa:
1. ...overall, the Tribunal considers the offences involving the cultivation and supply of a large commercial quantity of the illicit drug, cannabis, for which the Applicant was convicted and received a significant custodial sentence, to be serious. The Tribunal considers the Applicant is at low risk of reoffending, however continuing.
2. Given the seriousness of the potential harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and taking into account the Government's view that the Australian community's tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increases and noting the harm that would be caused by the distribution of large amounts of drugs if repeated (even cannabis), the Tribunal considers even an appreciable risk is unacceptable. It notes in this regard even a low risk of offending is unacceptable if the gravity of the harm that might eventuate is sufficiently serious: Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [30].
3. Having had regard to the nature and seriousness of the Applicant's conduct (which the Tribunal has assessed as serious) and the risk of her reoffending (which the Tribunal has assessed as low however unacceptable), the Tribunal concludes this consideration weighs moderately in favour of refusing to grant the Applicant's visa.

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)