Background
FDB20, a Sri Lankan citizen, arrived in Australia in March 2013 at the age of 17. He held a Bridging E visa and had an outstanding application for a Safe Haven Enterprise protection visa. In April 2024 he was convicted of conspiring to import a commercial quantity of pseudoephedrine — a border-controlled precursor used to manufacture methamphetamine — and sentenced to five years and ten months’ imprisonment. The conviction triggered mandatory cancellation of his visa under ss 501(3A) and 501(6)(a) of the Migration Act 1958 (Cth), as he failed the character test upon receiving a custodial sentence.
The applicant sought revocation of the cancellation through the Department of Home Affairs, but a delegate of the Minister affirmed it in May 2025. He then applied to the Administrative Review Tribunal, which on 28 August 2025 also affirmed the delegate’s decision not to revoke the mandatory cancellation, applying Ministerial Direction 110. In reaching its conclusion, the Tribunal accepted that the sentencing judge and Corrective Services NSW both assessed the applicant as a relatively low risk of reoffending, but found that the risk nonetheless remained unacceptable. A critical element of the Tribunal’s reasoning was that the applicant’s self-reported anxiety and depressed mood during the offending period — described at [49] of its reasons as unresolved “psychopathological elements” — could not be excluded as a future risk factor in the absence of clinical verification or expert evidence addressing their impact on his capacity to resist coercion or the lure of financial gain.
The applicant sought judicial review in the Federal Court, arguing on four grounds: (1) denial of procedural fairness by failing to put him on notice that his anxiety symptoms would be characterised as psychopathological and treated as predisposing him to reoffend; (2) legal unreasonableness in finding an unacceptable risk; (3) misunderstanding and misapplication of the mental health evidence; and (4) failure to identify or explain the use of the term “psychopathological” in its reasons.
The Court’s Holding
Burley J dismissed the application on all grounds. On procedural fairness (Ground 1), the Court found that the general question of the applicant’s mental health was plainly in issue before the Tribunal: the applicant himself gave oral evidence about anxiety and stress, the Minister’s Statement of Facts, Issues and Contentions expressly referenced the sentencing judge’s remarks that his background rendered him more susceptible to making bad decisions, and the delegate’s own reasons had flagged the possibility of future stress or difficulty. In that context, the applicant was on notice that his mental health was a live issue. The Court reiterated the well-established principle — drawn from SZBEL [2006] HCA 63 and SZKTI [2009] HCA 30 — that procedural fairness does not oblige a decision-maker to disclose the particular arguments or reasons it may find persuasive. Nor did the Tribunal impermissibly reverse the onus of proof; it simply assessed the weight of the evidence before it and found the risk factors could not be ruled out.
On the remaining grounds, the Court emphasised that a court must not approach an administrative decision-maker’s reasons with an eye attuned to error, nor be distracted by looseness of language or unhappy phrasing, citing Wu Shan Liang [1996] HCA 6. Burley J acknowledged that [49] of the Tribunal’s reasons was “awkwardly worded” but, read in context, its meaning was clear: the Tribunal was uncertain whether the self-reported symptoms that coincided with the offending had been resolved, heard ongoing evidence of anxiety and stress from the applicant at the hearing, and received no clinical explanation mitigating their potential relevance to future risk. Taking those matters into account was within the Tribunal’s lawful remit. The threshold for establishing legal unreasonableness — illogicality or irrationality of a high order — was not met.
The Court accordingly dismissed the application and ordered the applicant to pay the First Respondent’s costs.
Key Takeaways
- A mandatory visa cancellation under s 501(3A) of the Migration Act 1958 can be affirmed even where both a sentencing court and a corrective services assessment rate an applicant as low risk of reoffending, provided the Tribunal identifies a cogent basis for finding the risk unacceptable — here, unresolved mental health symptoms that coincided with the offending and lacked clinical explanation.
- Procedural fairness in Tribunal proceedings does not require the decision-maker to disclose in advance the specific arguments, characterisations, or reasons it may rely upon, provided the underlying subject matter (here, the applicant’s mental health) is genuinely in issue and known to the parties.
- Courts reviewing migration decisions will not characterise reasoning as legally unreasonable merely because language is imprecise or “awkwardly worded”; the obligation is to read the reasons fairly and as a whole, not to search for error.
- Non-citizens facing mandatory visa cancellation who raise mental health factors should ensure those factors are addressed by clinical or expert evidence that both explains their historical impact on offending and assesses their current and future relevance — unsupported self-reports may leave an adverse inference gap that a Tribunal can exploit.
Why It Matters
This decision illustrates the significant weight Australian tribunals and courts place on community safety when applying Direction 110 to mandatory visa cancellations under s 501. Even a well-regarded, remorseful applicant with positive prison conduct and professional assessments of low recidivism risk may still face cancellation if unresolved risk factors — including psychological ones — cannot be clinically excluded. The case underscores that “low risk” in a criminological assessment does not automatically translate to an “acceptable risk” under the Migration Act framework, particularly for serious drug-importation offences.
For practitioners advising visa holders facing character-based cancellation, the judgment is a practical reminder of the evidentiary burden: where a client’s mental health formed any part of the offending context, proactive clinical evidence addressing current psychological status and its nexus (or lack thereof) to recidivism risk is essential. Relying on oral evidence of counselling attendance without expert opinion leaves an evidentiary gap that decision-makers may fill adversely.