Tran v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 114

(1) placed weight on an irrelevant consideration in applying cl 8.1 of Ministerial Direction 99, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99): Ground 1A; and

(2) made findings that were procedurally unfair and legally unreasonable in respect of certain courses undertaken by the appellant: Ground 1C.

1. On 31 August 2021, the appellant was convicted and sentenced to:

(1) three years and three months imprisonment for cultivating a narcotic plant, being cannabis;

(2) one year and nine months imprisonment for trafficking a drug of dependence; and

(3) three months imprisonment for theft of electricity.

The total effective sentence imposed was three years and nine months.

1. On 21 September 2021, the appellant's visa was mandatorily cancelled under s 501(3A) of the Act (Cancellation).
2. On 24 April 2023, the appellant was notified that a delegate of the Minister had decided, under s 501CA(4) of the Act, not to revoke the Cancellation.
3. On 26 April 2023, the appellant applied to the Tribunal for review of the decision not to revoke the Cancellation. There was no issue that the appellant did not pass the character test under s 501CA(6) because of s 501CA(7) (substantial criminal record). At issue before the Tribunal was whether there was "another reason", under s 501CA(4), why the Cancellation ought to be revoked.
4. On 12 July 2023, the Tribunal affirmed the delegate's decision not to revoke the Cancellation (Decision) and delivered written reasons (Reasons).

GROUND 1A: DID THE TRIBUNAL CONSIDER SOMETHING IRRELEVANT?

1. By Ground 1A, the appellant alleges that the Decision is affected by jurisdictional error on the basis that the Tribunal took into account an irrelevant consideration in assessing the protection of the Australian community, being that the appellant had overstayed his student visa and worked in Australia outside the conditions of that visa, and had worked while an unlawful non-citizen.
2. Ground 1A raises the question of the meaning of the words "other serious conduct" in cl 8.1 of Direction 99.
3. Direction 99, which was issued by the Minister under s 499 of the Act, provided the framework within which decision-makers were required to approach the task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA of the Act. Direction 99 relevantly provided:

5.2 Principles

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA are identified in Part 2.

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

1. Informed by the principles in cl 5.2, decision-makers were required to take into account the "primary" and "other" considerations in cl 8 and cl 9 of Direction 99, where relevant to the decision: cl 6, Direction 99.
2. Clause 8 relevantly provided:

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

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

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

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

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

(5) expectations of the Australian community.

(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

(a) the nature and seriousness of the non-citizen's conduct to date; and

(b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

1. The Tribunal's Reasons at [41]-[73] broadly reflect the structure of Direction 99 relating to protection of the Australian community from criminal or other serious conduct.
2. At Reasons [43], the Tribunal noted that the appellant's "August 2021 convictions", which were for cultivation and trafficking of cannabis and theft of electricity, "are his only recorded offences in Australia".
3. At Reasons [44]-[45], the Tribunal further discussed the offending. At Reasons [46], the Tribunal stated:

This primary consideration is not limited to criminal convictions and includes 'other conduct to date'. For example, the Applicant lived and worked in Australia unlawfully for approximately four years after his Student Visa was cancelled in 2013.

1. At Reasons [49], the Tribunal concluded that "the totality of the Applicant's criminal and other conduct is very serious".
2. The "other conduct" that was not the subject of any conviction was again referred to at Reasons [65]:

During his decade-long residence in Australia, he lived and worked illegally in the community for about four years... He has persistently acted in disregard of Australia's laws when in contest with his own interests.

The Applicant's decision to live illegally in the community for four years... enlivens concerns about his persistent tendency to breach Australian laws when his interests are involved, or perspectives are challenged.

Additionally, given the Applicant was arrested about a month after his illegal status in Australia was regularised, the Tribunal is unpersuaded that his fear of adverse visa consequences is a meaningful protective factor.

1. At Reasons [73], the Tribunal concluded, in respect of cl 8.1 of Direction 99:

When the very serious nature of the Applicant's offending and other conduct, is coupled with a moderate risk of re-offending, and the serious consequences arising from any repeat, this primary consideration weighs substantially against revocation.

1. The Primary Judge's reasons (PJ), insofar as they are relevant to Ground 1A, are as follows:
   1. Mr Tran first maintains that the Tribunal fell into error insofar as it was moved to consider that his having remained unlawfully in Australia fell within what cl 8.1(1) of Direction 99 describes as "other serious conduct". Simply put, Mr Tran maintains that his continued presence in Australia following the cancellation of his previous (student) visa (and prior to his being granted the Visa) was not conduct that was apt to be considered pursuant to cl 8.1.

...

1. Regardless, in order that the Tribunal's Decision to take account of that consideration might bespeak jurisdictional error as alleged, it is necessary that Mr Tran should show that it was irrelevant in the sense that Mason J recognised in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40. That invites some analysis as to whether there is something about the subject matter, scope or purpose of the Act that precluded the Tribunal, in the present matter, from bringing Mr Tran's unlawful presence in Australia to bear upon its consideration of cl 8.1 of Direction 99.

2. Clause 8.1 of Direction 99 required the Tribunal, in the course of considering the protection of the Australian community from criminal or other serious conduct, to reflect upon "the nature and seriousness" of Mr Tran's conduct: Direction 99, cl 8.1(2)(a). In considering the nature and seriousness of that conduct, cl 8.1.1(1) of Direction 99 required that it have regard to the non-exhaustive list of "types of crimes or conduct" that "the Australian Government and the Australian community" view as "serious".

3. There is nothing about the subject matter, scope or purpose of those provisions or the statutory authority that underpins them that required the Tribunal here, when assessing the nature and seriousness of his conduct to date, not to take account of Mr Tran's having remained and worked unlawfully in Australia. Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055 (Meagher J), which Mr Tran advanced in support of that very proposition, is in fact no such authority.

4. On the contrary, in assessing the nature and seriousness of Mr Tran's conduct to date, the Tribunal was entitled to take account of anything that rationally bore upon that assessment. So long as it was made with appropriate compliance with the instruction conveyed by cl 8.1.1, the Tribunal's assessment in that regard was not otherwise constrained.

5. But even were it otherwise - that is to say, even if cl 8.1.1(1) of Direction 99 precluded the Tribunal, when considering the nature and seriousness of Mr Tran's conduct to date, from having regard to conduct that was not at the same level of seriousness as the species listed in subparagraph (b) - it does not follow that what the Tribunal did in the present matter involved consideration of an irrelevant matter. It is not in controversy that, during the period spanning the cancellation of his previous visa through to the granting of the one that he now wants back, Mr Tran remained in Australia unlawfully. He was not entitled to live or work here and yet he did both. He apparently received payments in cash, which was not declared for income tax purposes. It is not necessary that the court now should conclude that his conduct was relevantly criminal. It suffices to observe that it was open to the Tribunal to consider that it was serious; and, in particular, of an equivalent seriousness to the other species of conduct listed in cl 8.1.1(1)(b) of Direction 99.

6. Clause 8.1(1) of Direction 99 required that decision makers "...should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they [amongst other things] will respect important institutions". There is no reason to doubt that the regulatory framework that governs Australia's immigration policy should qualify as one such institution.

7. It follows that the Tribunal's Decision here to take account of Mr Tran's unlawful presence in Australia after the cancellation of his previous visa - and to factor it into its assessment under cl 8.1.1 of Direction 99 of the nature and seriousness of his conduct to date - does not bespeak any error of law on the Tribunal's part. On the contrary (and with respect), the Tribunal was entitled to reason as it did.

(Original emphasis.)

1. The appellant submits that the pre-ambulatory words in cl 8.1 of Direction 99 are to "protection of the Australian community from criminal or other conduct". That, the appellant submits, immediately suggests that the phrase "other serious conduct" has some connection to the notion of protection of the Australian community; "other serious conduct" does not appear in cl 8 untethered and in the abstract. The appellant observes that the reference to the relevance of protecting the Australian community appears repeatedly in the heading of cl 8.1 and in the substantive text in cl 8.1(1) of Direction 99.
2. The appellant submits that a person who has no visa has the status of "unlawful non-citizen": s 14 of the Act. The appellant submits that while this status may attract certain consequences under the Act, contrary to the implicit assumption made by the Tribunal, there is no criminal offence committed, nor civil penalty provision contravened, nor any lesser or other form of legislative prohibition breached by simply being an unlawful non-citizen. The appellant submits that the same point applies in respect of working as an unlawful non-citizen. In neither case, it was submitted, is there any provision of the Act or a law that has been "breached", contrary to the Reasons at [68].
3. The appellant further submits that no aspect of protection of the Australian community is invoked by the mere circumstance of someone not holding a visa or working without one. The appellant submits that staying or working in Australia the moment after a visa expires does not somehow elevate the person overnight into a "risk", let alone one from which the Australian community requires protection. The risk the person poses turns, instead, on the risk that they will criminally offend or engage in some other offensive conduct. Whether serious or not, not holding a visa is simply unrelated to whether a person is a risk to the Australian community.
4. The appellant submits that the primary judge erred in concluding at PJ [37]-[42], that cl 8.1 permitted the Tribunal to take into account the appellant having had periods in which he lived and worked without a visa. The appellant submits that the "conduct" which the Tribunal could take into account, as part of the primary consideration of protection of the Australian community, had to be, as the name of the consideration itself suggests, conduct from which the Australian community required protection. The appellant submits that living and working without a visa is not that type of conduct.

1. The appellant, in his submissions, seeks to construe clauses 8.1, 8.1.1 and 8.1.2 of Direction 99 in an impermissibly narrow way which does not give effect to the text of the Direction. The parts of Direction 99 relevant to Ground 1A required the Tribunal to have regard to the following when considering the primary consideration of the protection of the Australian community:

(1) that "the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct": cl 8.1(1);

(2) the expectation that non-citizens are and have been "law abiding" and will "respect important institutions": cl 5.2 and cl 8.1(1);

(3) the nature and seriousness of the non-citizen's conduct to date": cl 8.1(2)(a);

(4) the risk to the community should the "non-citizen commit further offences or engage in other serious conduct": cl 8.1(2)(b);

(5) a non-citizen's "criminal offending or other conduct to date": cl 8.1.1(1);

(6) that the range of conduct "that may be considered serious" is not limited by cl 8.1.1(1)(b); and

(7) there is a need to protect Australian "individuals, groups or institutions" from "harm": cl 8.1.2(1).

1. Given the above extracts, it is evident from the plain words of Direction 99 that the "other serious conduct" referred to in cl 8.1(1) is not limited to criminal conduct or criminal convictions. It is apparent that "other serious conduct" is a broad concept that goes beyond physical harm and extends to conduct that is harmful to Australian institutions. Harm to entities that, by their very nature, cannot be harmed in a physical sense. Such harm would necessarily involve the undermining of the regulatory frameworks within which those institutions operate, and the associated economic implications for those institutions.
2. It is against this background that the Tribunal found that, by having remained in Australia as an unlawful non-citizen for around four years and having worked during that period, the appellant had engaged in "serious conduct". Relevantly, the Tribunal found at Reasons [65] and [68]:

[The applicant's] criminal and other conduct cannot be regarded as impulsive or short-lived. During his decade-long residence in Australia, he lived and worked illegally in the community for about four years, took illicit drugs over an approximately 18-month period and committed very serious crimes, and has since spent the last four years in custodial settings. He has persistently acted in disregard of Australia's laws when in contest with his own interests.

...

The Applicant's decision to live illegally in the community for four years, take illicit drugs, commit very serious crimes, and family violence against Ms Nguyen, enlivens concerns about this persistent tendency to breach Australian laws when his interests are involved, or perspectives are challenged.

1. Having regard to these matters, the appellant has not established that the Tribunal took into account an irrelevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, at CLR 39-40 (Mason J, Gibbs CJ and Dawson J agreeing). The Primary Judge was correct to find at PJ [36]-[38] that there is nothing in the subject matter, scope or purpose of the Act or Direction 99 that precluded the Tribunal from having regard to the appellant having lived in Australia unlawfully and having worked during that time.
2. The words of Direction 99 are broad and the way the Tribunal may assess risk is limited only by the bounds of logical reasoning in the sense described in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [131] (Crennan and Bell JJ). As Moshinsky J observed in BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68], the Tribunal, for the purposes of clauses 8.1(1) and 8.1.2(2)(a) of Direction 99, is not under any duty to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of the risk.
3. In those circumstances, the Tribunal's finding that living in Australia unlawfully for around four years and working during that time, comprised "serious conduct" did not involve jurisdictional error. That finding was sound and was open based on probative evidence. It was open to the Tribunal to make its own assessment based on the evidence before it and, given the appellant's non-compliant conduct which spanned a number of years, it is unremarkable that the Tribunal characterised such conduct as "serious".
4. We accept the Minister's submission that, having regard to the text of Direction 99, the appellant's conduct was plainly relevant to the protection of the Australian community for the following reasons.
5. First, persons living and working in Australia unlawfully present a risk of harm to the Australian community and its institutions, as they are engaged in conduct that circumvents regulatory requirements and frameworks and causes government authorities to incur costs. For example, unlawful non-citizens working in Australia cause costs to be incurred by migration authorities who seek to locate, and do locate, unlawful non-citizens to regularise their status in Australia.
6. Second, the fact that the appellant had remained in Australia unlawfully for around four years, and worked during that time, was probative as to whether he is "law abiding" and has "respect" for "important institutions" and, generally, whether he is likely to engage in "criminal or other serious conduct" in future, all being matters contemplated by Direction 99. The appellant's non-compliance with migration legislation, whether criminal or otherwise, is plainly relevant to his "persistent[] disregard of Australia's laws" and "persistent tendency to breach Australian laws", which the Tribunal identified at [65] and [68] of the Reasons.
7. Third, the appellant is incorrect to submit that him working as an unlawful non-citizen, was not a breach of the law.
8. At the relevant time, s 235(3) of the Act provided:

235 Offences in relation to work

...

(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.

1. Being an unlawful non-citizen engages statutory mechanisms under the Act which result in a person being subject to immigration detention and possible removal from Australia: ss 189 and 198 of the Act. In that sense, the Tribunal saying, at [68] of the Reasons, that the appellant has been in "breach" of the law by remaining in Australia unlawfully, merely states that the appellant has not complied with Australian immigration laws.
2. The reasoning of the Tribunal that the appellants conduct was "other serious conduct" from which the Australian community required protection, was orthodox and gave effect to the text of Direction 99.
3. For the reasons given, Ground 1A must be rejected as there was no error in the reasoning of the Tribunal for the reasons given by the primary judge at PJ [34]-[42].

1. By Ground 1C, the appellant alleges that the Decision of the Tribunal is affected by jurisdictional error on the basis that the Tribunal made findings that were procedurally unfair and/or legally unreasonable in respect of certain courses undertaken by the appellant.
2. Before the Tribunal, the appellant's case was that he had completed two courses relevant to recidivism risk: one for anger management and the other for drug abuse. The appellant submits that the Tribunal referred to these courses but gave them little weight for two cumulative reasons. The first of these reasons was because the courses were delivered in English and the Tribunal thought Mr Tran could not understand them. The Tribunal said, at Reasons [67]:

When challenged that his level of English raised concerns about how he could understand and complete these courses in one day, the Applicant responded through the interpreter that he is 'very confident' he can 'understand English'. This was unpersuasive given the Tribunal's observations of the Applicant over two days of oral evidence, including one occasion when [his representative] asked him to provide a response in English.

1. The appellant submits that this shows that the Tribunal drew negative inferences about the appellant's English capabilities from: (1) the fact that he used an interpreter; and (2) that he did not speak as well as a native speaker did, based on the quality of expression when he gave some of his evidence in English.

1. The Primary Judge's reasons, insofar as they are relevant to Ground 1C, are as follows:
   1. By his third challenge (or the third limb of ground one), Mr Tran submits that the Tribunal's Decision is a product of jurisdictional error in that it was premised upon a conclusion that his English language skills are sufficiently poor that he likely did not benefit much from the anger management and drug and alcohol abuse courses that he undertook in immigration detention. That conclusion, he says, was procedurally unfair or legally unreasonable because:

(1) having been asked to give (and having, for the most part, given) his evidence through an interpreter, Mr Tran's English language skills could not have been sufficiently apparent;

(2) he had requested and was denied an opportunity to demonstrate his English skills; and

(3) the Tribunal did not know the content of the courses.

1. Mr Tran offered his completion of the two courses as evidence of his commitment that, if the Cancellation were revoked, he would not reoffend or engage in other serious misconduct. By his written submissions before this court, Mr Tran maintains:

   1. There are two errors here. First, the Tribunal did not ask [Mr Tran] or his counsel to provide further information about the content of these courses. Nor did it seek out this information for itself, as it was entitled to do. In the circumstances, the assumption that the courses were of little or no use to [Mr Tran] is unreasonable.
   2. Separately, the Tribunal's unfavourable assessment of [Mr Tran's] ability to understand English is entirely unreasonable and procedurally unfair...

2. The first of the "two errors" can swiftly be addressed. There was nothing unreasonable about the Tribunal's failure to ask for further information about the content of the courses. The power that the Tribunal here declined to exercise - that is to say, the power of revocation conferred by s 501CA(4) of the Act - was one that Mr Tran asked it to exercise. It was for Mr Tran to establish his case in that regard: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643, 655 [48] (Rares and Robertson JJ). The Tribunal was under no duty - and certainly not one referrable to common law standards of natural justice or procedural fairness - to make inquiries about aspects of the case that he advanced: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 290 (Mason CJ and Deane J); Abebe [v The Commonwealth of Australia (1999) 197 CLR 510], 576 [187] (Gummow and Hayne JJ).

3. Albeit not in an identical context, the proposition was put succinctly in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123, 1129 [24] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law.

1. Similarly, I do not accept that the Tribunal's assessment of Mr Tran's English language skills was attended by any procedural unfairness or want of reason. It may be accepted that Mr Tran, having given his evidence via an interpreter, had limited opportunity to impress upon the Tribunal the extent of his English language skills. Nonetheless, two observations bear noting.
2. First, he had an opportunity to showcase his English skills. As has already been recorded (above, [29]), Mr Tran's evidence was not given exclusively in Vietnamese. Intending no disrespect, it is apparent that those parts of his evidence were not inconsistent with the Tribunal's observations about his English proficiency.
3. Second, it is perhaps somewhat generous to suggest that Mr Tran was denied an opportunity to demonstrate his English skills directly to the Tribunal. It is apparent that the opportunity that Mr Tran requested was to demonstrate, in his own words, his remorse and regret for having engaged in his past conduct. That was precisely the opportunity that he was afforded and of which he availed himself.
4. What's more, it is equally apparent that the opportunity that he was afforded to that end was one with which neither he nor his representative took issue. There was, for example, no resistance to the Tribunal's request that Mr Tran's plea be made "just through the interpreter" (above, [29]). Not only was that not objected to, Mr Tran expressed his gratitude for the opportunity that he was given.
5. The Tribunal's conclusions about Mr Tran's English language skills and the benefit that he might have realised from the courses that he undertook are not vulnerable to challenge in the ways that he posits. There was no procedural unfairness as alleged and the Tribunal did not proceed upon reasoning that was unreasonable or illogical in a way or ways capable of sustaining jurisdictional error.

58. It follows that ground "1C" is not made good.

(Original emphasis.)

1. The Tribunal's assessment of the appellant's English language skills was not attended by any procedural unfairness or want of reasoning. The Tribunal had the benefit of observing the appellant's English language skills when he gave evidence over two days during the hearing before the Tribunal.
2. The appellant was not denied procedural fairness before the Tribunal. He was afforded the opportunity to impress upon the Tribunal the extent of his English language skills. He availed himself of that opportunity. The Tribunal, however, having observed his English language skills, found that the appellant's response through an interpreter, that he is "very confident" he can "understand English", was unpersuasive. That was a finding which was open on the evidence, and which was logically explained in the Tribunal's Reasons at [67].
3. An examination of the transcript of the hearing before the Tribunal, which is set out at PJ [26]-[29], provides ample evidence that there was a sound basis for the Tribunal not being persuaded to accept the appellant's claim that he was "very confident" he can "understand English". There is no error in the reasoning, nor in the finding which the Tribunal arrived at in assessing the appellant's ability to understand and comprehend English.
4. For the reasons given, Ground 1C must be rejected.

1. The appeal is dismissed. The appellant will pay the Minister's costs of the appeal.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Anderson, McElwaine and Neskovcin.