So v Minister for Immigration and Citizenship [2026] FCA 345

1. This is an application for judicial review of a decision made by the second respondent (Tribunal) on 17 November 2025 affirming a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant's Resident Return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act).
2. The case raises a question regarding the interpretation of Ministerial Direction No. 110 concerning visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 110) and its interaction with Australia's international and "domestic" non-refoulement obligations. Before considering that question, it is appropriate to set out the relevant background facts and procedural history.
3. The applicant is a citizen of the People's Republic of China (specifically, the Special Administrative Region of Hong Kong). He came to Australia in August 2012 with his family when he was 15 years old. He was about 28 years old at the time of the mandatory cancellation of his visa, and he currently remains in immigration detention.
4. The applicant's visa status and lamentable history as a criminal in both Australia and New Zealand is set out in the Tribunal's decision (at [4]-[23]).
5. Most recently, he was convicted of an offence of supplying a prohibited drug of greater than the commercial quantity, as well as an offence of dealing with proceeds of crime of more than $100,000. For the former, he was sentenced to a term of five years and four months in gaol, with a non-parole period of three years. He was paroled in October 2024 and taken into immigration detention three months later, in January 2025.
6. In December 2024, the applicant's Resident Return visa was mandatorily cancelled under s 501(3A) of the Act on the basis that he had a "substantial criminal record" because he had been sentenced to a term of imprisonment of 12 months or more.
7. In May 2025, the applicant applied for a protection visa.
8. On 21 August 2025, a delegate of the Minister found that the power under s 501CA(4) of the Act to revoke the mandatory cancellation of the Resident Return visa was not enlivened, and refused to exercise such power (Non-Revocation Decision). Four days later, the applicant was informed of the Non-Revocation Decision. The same day, another delegate refused the applicant's protection visa application (Protection Visa Decision).
9. On 1 September 2025, the applicant applied for review of the Non-Revocation Decision. He did not seek a review of the Protection Visa Decision.
10. On 17 November 2025, the Tribunal affirmed the Non-Revocation Decision.

1. As is well-known from the plethora of cases concerning s 501CA of the Act, it relevantly provides:

Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

...

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

1. It was not in dispute (nor could it be) that the applicant did not pass the character test in s 501(6)(a) by reason of s 501(7)(c) of the Act.
2. As is also well-known, s 499 of the Act relevantly provides:
   1. Minister may give directions

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

...

(2A) A person or body must comply with a direction given under subsection (1).

1. Relevantly, Direction 110 was a ministerial direction given under s 499 of the Act.
2. While dealing with the Act, it is also worth mentioning s 11A(1), which also assumes relevance in this proceeding. It provides:

(1) An application under this Act is finally determined when:

(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review by application to the ART under Part 5; or

(b) a decision that has been made in respect of the application was subject to some form of review by application to the ART under Part 5 but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

1. In his originating application, the applicant advances three grounds for judicial review, which were refined to two during oral submissions. The remaining grounds are expressed as follows:
   1. The Tribunal erred in law and constructively failed to conduct the "review" required by the Act insofar as the Tribunal failed to read, identify, understand or evaluate the applicant's representations with respect to non-refoulement, and insofar as the Tribunal failed to comply with paragraph 9.1.2 of Direction 110 and s 499(2A) of the Act.

...

1. The Tribunal erred in law and constructively failed to conduct the "review" required by the Act insofar as the Tribunal confused the merits of the applicant's case with the merits of the Tribunal's earlier reviews in (at least) Palelei and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1758 and Gordon-Stables and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2296.

1. Counsel for the applicant, Mr King, candidly (and correctly) conceded that the ground one contained his best point, and I will deal with ground two very briefly at the end of these reasons.

1. In their written and oral submissions, counsel for the applicant and the respondent both referred to the various densely drafted paragraphs within sub-part 9 of Direction 110. Indeed, the applicant placed particular emphasis on paragraph 9.1.2, while the Minister focussed on paragraphs 9(1) and 9.1(2).
2. Despite its length, it is helpful to set out sub-part 9 of Direction 110 in full.

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on Australian business interests

9.1 Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

9.1.1. Non-citizens covered by a protection finding

(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.

(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.

(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations[)].

9.1.2. Non-citizens not covered by a protection finding

(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

1. The Minister contends that Ground One is misconceived because, at the time of the Tribunal's decision, Australia could not, in the circumstances of this case, be in breach of its non-refoulement obligations (as explained in paragraph 9.1(2) of Direction 110 and contained in domestic law) with respect to the applicant because his application for a protection visa had been refused and he had chosen not to seek any form of review of that decision.
2. In support of this conclusion, the Minister relies on the decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582. In that case, it was explained that (at 596-597 [18] and [20] per Kiefel CJ, Keane, Gordon and Steward JJ):
   1. Australia's non-refoulement obligations, to the extent enacted as domestic law, are addressed in the Migration Act in provisions concerning the grant of protection visas, being a class of visa created specifically to allow decision-makers to grant visas to persons who cannot be removed from Australia consistently, but not co-extensively, with Australia's non-refoulement obligations under international law...

...

1. Australia's international non-refoulement obligations, as distinct from the criteria for the grant of a protection visa, are addressed separately and later in the scheme of the Migration Act in the context of removal. That distinction is important. In point of constitutional principle, an international treaty (or customary international law obligations of a similar nature) can operate as a source of rights and obligations under domestic law only if, and to the extent that, it has been enacted by Parliament. It is only Parliament that may make and alter the domestic law. The distinction also has significant consequences for discretionary decision-making under powers, such as s 501CA, conferred by statute and without specification of unenacted international obligations: such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error.

1. Relatedly, the Minister notes that the majority had earlier identified (at 593-594 [13]) that the obligation to remove an unlawful non-citizen under s 198 of the Act arises irrespective of (any broader) non-refoulement obligation in respect of the unlawful non-citizen in accordance with s 197C(1) and (2).
2. It is not entirely accurate, however, to characterise what the majority said about the obligation to removal an unlawful non-citizen under s 198 as arising irrespective of "any broader" non-refoulement obligation.
3. The point is that the removal obligation arises irrespective of whether Australia has "non-refoulement obligations" in respect of an unlawful non-citizen (as defined in the Act). That is, the removal obligation arises irrespective of whether such obligations are transformed into domestic law or remain part of international law. The evident purpose of the provision is to ensure that the removal obligation is not influenced by any non-refoulement obligation. Indeed, as the majority noted (at 593-594 [13]):

'[N]on-refoulement obligations' is defined in the Migration Act to include such obligations as may arise because Australia is party to the Convention relating to the Status of Refugees, the International Covenant on Civil and Political Rights or the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and obligations accorded by customary international law that are of a similar nature. In those circumstances, the Minister retains the personal non-delegable power to grant a visa to a person who is in detention under s 189 if they (sic) think it is in the public interest to do so.

1. This is reinforced by paragraph 9.1(2) of Direction 110, which makes it clear that "non-refoulement obligations" include both those reflected in the Act as "protection obligations" and those arising under certain international instruments. Further, paragraph 9.1(3) does not foreclose an applicant from raising international non-refoulement obligations for consideration; it merely says they will "generally not be relevant where the person concerned does not raise such obligations for consideration".
2. The Minister also makes the following submission:

Accordingly, where, as in this case, an unlawful non-citizen has made a valid protection visa application under the Act and that application has been finally determined adversely to the applicant then, prima facie, Australia cannot be in breach of its non-refoulement obligations as enacted in domestic law. Notably, as the Tribunal observed, it did not have the power to review (and thus be able to reverse) the delegate's protection visa decision. In other words, no matter what view this Tribunal may have reached, the applicant would remain a person who had been finally refused a protection visa under the Act for the purpose of section 197C. Accordingly, for the purposes of the Act, Australia had no protection obligations to the applicant which it could breach for the purpose of paragraph 9.1 of Direction 110. The position, of course, is different where those claims have not yet been resolved under the Act and that is why, in Plaintiff M1, the High Court consistently emphasised that its ruling applied to persons who remained "free" to apply for a protection visa: see e.g., at [9], [21] and [30].

1. Properly analysed, the Minister's submissions contain a subtle conflation of "protection obligations" and "non-refoulement obligations". Paragraph 9.1.2(1) of Direction 110 expressly requires that claims raised by a non-citizen who is not the subject of a protection finding that may give rise to international non-refoulement obligations "must be considered". The provision recognises that a person may raise international non-refoulement obligations distinct from the statutory "protection obligations" assessed in the protection visa process. If the Minister's submission were correct, that is, that refusal of a protection visa necessarily forecloses further consideration of non-refoulement, these words in paragraph 9.1.2 would have no operative work to perform. I have difficulty in accepting that this is the proper construction of Direction 110.
2. Relatedly, the Minister also submits that paragraph 9.1.2 is not engaged because the relevant consideration in sub-part 9 concerns the "legal consequences of the decision" identified in paragraph 9(1)(a). It is said that once the applicant's protection visa application had been refused and finally determined, there were no "legal consequences" capable of engaging Australia's non-refoulement obligations for the purposes of Direction 110. The Minister also relies on s 11A(1) of the Act to point to the finality of the decision.
3. But sub-part 9 of Direction 110 does not confine the relevant consideration to obligations that have operative consequences under the Act. Paragraph 9.1(2) expressly recognises that Australia's "non-refoulement obligations" include obligations arising under international instruments such as the Refugees Convention, the CAT, and the ICCPR. It also says that "[t]he Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing". That is significant for what it does not say. There is no express or implied textual indication that such interpretation or commitment is exhaustive, and other paragraphs within sub-part 9 make it plain that international non-refoulement obligations can be raised and considered. Indeed, paragraph 9.1.2 proceeds on the basis that a non-citizen who is not covered by a protection finding may nevertheless raise claims capable of engaging those obligations, and provides that where such claims are raised, they must be considered.
4. The Minister decided to provide Direction 110 the way he did. For whatever reason, it distinguishes between two categories of cases: those where a protection finding has been made (addressed in paragraph 9.1.1) and those where no such finding exists (addressed in paragraph 9.1.2). In the latter category, Direction 110 expressly contemplates that international non-refoulement obligations may be raised and requires the decision-maker to consider them (Paragraph 9.1.2(1)). As noted above, the Minister's construction would collapse that distinction.
5. While it is accurate to conclude that a protection visa refusal means Australia cannot be in breach of its non-refoulement obligations "as enacted in domestic law", it can already be seen that this submission does not capture the full picture. Paragraph 9.1.2(3) expressly contemplates the existence of non-refoulement obligations that have been identified for a non-citizen via "some other process outside the protection visa process". Hence a protection visa refusal does not extinguish the existence of non-refoulement obligations otherwise arising.
6. The majority in Plaintiff M1/2021 (at 597 [20]) emphasised that international obligations "are not mandatory relevant considerations attracting judicial review for jurisdictional error" unless enacted. By refusing a protection visa, it has been determined that the enacted obligations are not met. However, the unenacted international obligations may still exist as a reason for revocation under s 501CA(4)(b)(ii), even if they are not mandatory.
7. The Minister's point regarding Plaintiff M1/2021 applying to persons who remain "free" to apply for a protection visa, with respect, puts matters too narrowly. If a person is not free to apply for a protection visa (relevantly, in the sense that their application has been refused), the concept of "another reason" in s 501CA(4)(b)(ii) becomes the only mechanism through which any non-refoulement obligations can be considered.
8. As would already be apparent, it was common ground the applicant applying for review of the Non-Revocation Decision had been refused a protection visa, and therefore, was not the subject of a protection finding. Before the Tribunal, he made claims which may have given rise to international non-refoulement obligations (see So and Minister for Immigration and Citizenship (Migration) [2025] ARTA 3000 at [174]-[178]).
9. Given the way that Direction 110 operated, the Tribunal was required to consider such claims. The Tribunal proceeded on the basis it was not required to consider them notwithstanding the provision of the applicant's so-called "Point-by-Point Rebuttal" of the delegate's decision, which was material said to support his claims of fear of harm if returned to Hong Kong.
10. For those reasons, Ground One succeeds. If a direction in terms of Direction 110 is thought by the Minister to be appropriate and is then issued, it necessarily follows it must be the subject of compliance (however complicated and poorly expressed one might think the Direction to be). In the end, the Tribunal failed to comply with s 499(2A) of the Act.
11. The applicant seeks a writ of certiorari issue, quashing the Tribunal's 17 November 2025 decision affirming the Non-Revocation Decision, as well as a writ of mandamus issue, remitting the matter to the Tribunal and requiring it to determine the applicant's application for review of the Non-Revocation Decision according to law.
12. The Tribunal's error was material to the Tribunal's decision in the sense that there was a "realistic possibility that the decision that was made in fact could have been different if the error had not occurred", and was jurisdictional in nature: see LPDT v Minister for Immigration [2024] HCA 12; (2024) 280 CLR 321 (at 327 [7], 329 [16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

1. As I indicated earlier, Ground Two can be dealt with briefly.
2. The applicant submits that the Tribunal copied irrelevant and adverse factual findings from unrelated reviews, and therefore, the fair-minded lay observer might reasonably apprehend that the Tribunal may not have brought an impartial mind to the impugned review.
3. The adverse findings upon which the applicant relies concern methylamphetamine, which the applicant submits has nothing to do with the facts of the impugned decision: the applicant in this case was convicted of supplying a commercial quantity of heroin, not methylamphetamine.
4. The applicant highlights the passages in the Tribunal's previous decisions from which the Tribunal copied text into the impugned decision. The particular adverse findings upon which the applicant relies appear in the headnote's catchwords "sold/supplied trafficable quantity of methylamphetamine" and at [90] of the substantive reasons, being "methylamphetamine [is] the worst of the worst", and "social cost ... estimated to be over $5 billion".
5. Another error proffered by the applicant is that the decision record wrongly identified the legal representative for the Minister.
6. Although inattentive, the Tribunal was not erroneous in using its own previous decisions as a template. Considering the requirements of ss 501 and 501CA of the Act and the terms of Direction 110, repetition in the framework of reasoning is inevitable: see XYJY v Minister for Immigration and Citizenship [2025] FCA 1572 (at [68] per Halley J).
7. It is regrettable the Tribunal failed to proofread its decision properly and remove from its reasons the irrelevant words in the headnote naming the incorrect drug, the irrelevant paragraph at [90], as well as the name of the incorrect legal representative. However, considering the Tribunal's reasons as a whole, it is plain the Tribunal understood that the drug which the applicant supplied in a commercial quantity in this case was heroin (see So and Minister for Immigration and Citizenship (Migration) [2025] ARTA 3000 at [16], [20], [52], [66] and [88]). It is also evident the Tribunal paid close attention to the evidence and submissions made before it.
8. Having considered the Tribunal's reasons, I am satisfied that there was no error in the reasoning process in the nature contended for by the applicant. The assertion the Tribunal appears to have conflated the representation, evidence, and submissions of the Minister between multiple reviews goes too far.
9. To the extent the applicant alleges apprehended bias by the Tribunal, it is misconceived. The fact that the Tribunal engaged in a proofreading or editing error and failed to delete or replace certain text does not give rise to apprehended bias. No fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial mind to the impugned review.
10. Ground Two is not made out.

1. I will make the following orders: (a) a writ of certiorari issue, quashing the 17 November 2025 decision of the Tribunal to affirm the 21 August 2025 decision of a delegate of the Minister not to exercise power pursuant to s 501CA(4) of the Act to revoke the mandatory cancellation under s 501(3A) of the Act of the applicant's Resident Return visa; and (b) a writ of mandamus issue directed to the Tribunal, requiring it to consider the applicant's application according to law.
2. I also propose to make an order that provides for costs to follow the event. That course is justified because counsel for the applicant orally confined argument to those grounds which could properly be maintained and, in doing so, avoiding the unnecessary consumption of court time. This was a course more measured than is sometimes encountered.
3. Having made that order, I wish to reiterate a broader point. Migration litigation is not a species of civil litigation which operates by different rules or expectations from other civil litigation in this Court.
4. Practitioners appearing in this jurisdiction perform an important public service, and the Court is grateful for the assistance they provide. But over a number of years, I have observed a tendency, in numerous cases, even in cases of some merit, for notices of appeal or applications to be framed in a prolix fashion, advancing a multitude of grounds, some of which have no reasonable prospect of success. The consequence is that the Minister is required to respond to unmeritorious points, and scarce judicial resources are diverted to their disposition.
5. Practitioners in migration matters, like all practitioners, are subject to obligations to conduct litigation consistently with the overarching purpose. Barristers appearing in migration matters for applicants or appellants ought to remind themselves that they are required to assist their client to facilitate the quick, inexpensive and efficient resolution of the real issues in dispute: see s 37N(2) of the Federal Court of Australia Act 1976 (Cth). There is no Pt VB "carve out" just because one is appearing in a migration matter.
6. This obligation is not discharged by advancing every conceivable argument; it requires judgment, restraint, and a focus upon the points that matter. It follows that, even where an applicant is ultimately successful against the Minister, it should not be simply assumed that all costs will necessarily be recoverable where unmeritorious grounds have been pursued alongside those which succeed. Sound advocacy does not consist in obscuring good points among bad ones; it consists in identifying and advancing the former with clarity and discipline.
7. The approach taken in this case provides a useful illustration of that principle in practice. Mr King, having appreciated how the matter lay, ultimately confined the case to arguable points and thereby avoided the diversion of time to unmeritorious contentions. Equally, the Minister's submissions were put by Ms Francois with her customary force and skill, and were concise and of real assistance to the Court; they reflected a proper focus upon the dispositive issues rather than peripheral matters.
8. In this way, the conduct of practitioners for both parties provides a model of how migration litigation should be conducted in this Court: with some realism and a shared appreciation that the efficient disposition of the real controversy is in the interests not only of the parties, but of the administration of justice.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.