Cao and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1853

Cao and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1853 (12 September 2025)
Applicant/s:  Yuehua Cao
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/4181

Tribunal:General Member J Papalia
Place:Perth
Date of decision: 12 September 2025

Date of written reasons: 19 September 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 19 September 2025 at 1:22pm
CATCHWORDS
MIGRATION – visa cancellation – permanent resident visa – mandatory cancellation under s 501(3A) of Migration Act 1958 – where Applicant does not pass the character test – drug offending – prior visa cancellation– whether there is another reason to revoke cancellation – consideration of Direction no. 110 – protection of Australian community – strength, nature and duration of ties to Australia – best interests of minor children in Australia affected by the decision – whether Convention on the Rights of the Child would be contravened by expulsion of the Applicant - expectations of the Australian community – meaning of ‘crimes that are of serious international concern’ – legal consequences of decision – extent of impediments if removed –impact on Australian business interests- Applicant is a 54-year-old citizen of China – reviewable decision affirmed
LEGISLATION
Convention on Psychotropic Substances 1971, signed 21 December 1971, [1982] ATS 14 (entered into force 17 August 1982)
Convention on the Rights of the Child, signed 22 August 1990, [1991] ATS 4, (entered into force 16 January 1991)
Criminal CodeAct 1995 (Cth)
Criminal Property Confiscation Act 2000 (WA)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Misuse of Drugs Act 1981 (WA)
Sentence Administration Act 2003 (WA)
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed 20 December 1988, [1993] ATS 4, (entered into force 14 February 1993)
CASES
Re PGQM and Minister for Immigration and Citizenship [2025] ARTA 1245
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Re Scott and Minister for Immigration and Citizenship [2025] ARTA 997
NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582
RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Cth)
Statement of Reasons
The decision in this matter was made on 12 September 2025 and provided to the parties with a note that written reasons would be provided within a reasonable time.[1] These are those written reasons.
THE APPLICATION
[1] See Khalil v Minister for Home Affairs (2019) 271 FCR 326, [41], [48].

The Applicant, Ms Cao, is a Chinese national who seeks review of a decision dated 18 June 2025, not to revoke the mandatory cancellation of her permanent resident visa.[2] This is the second time that Ms Cao’s permission to remain in this country has been cancelled.[3] For the following reasons, the Tribunal is not satisfied that there is ‘another reason’ to revoke the second mandatory cancellation decision. Accordingly, the correct or preferable decision is to affirm the reviewable decision.
[2] See Exhibit 1, p 33.
[3] See Exhibit 1, p 138.
BACKGROUND
Ms Cao is 54 years of age and was born in China.[4] She first entered Australia on 29 June 2006, on a temporary business visa.[5] She subsequently departed, and returned to Australia in March 2007. Ms Cao was then granted a series of bridging visas for the purposes of prosecuting a partner visa application.[6] During that time, her second child and first daughter (MVL) was born in Western Australia, in December 2008.[7]
[4] See Exhibit 1, p 142.
[5] Ibid.
[6] See Exhibit 1, p 142; see also Exhibit 6.
[7] See Exhibit 1, pp 110-112.
Ms Cao returned to China in April 2009 with MVL.[8] There, she collected her oldest child and only son (JC), who had been living with his maternal grandparents from infancy whilst Ms Cao worked abroad.[9]
[8] See Exhibit 1, pp 124, 142.
[9] See Exhibit 1, p 124.
Ms Cao obtained a provisional partner visa in April 2009,[10] and returned with her two children in August 2009.[11] She was granted permanent residency in January 2012.[12]
[10] See Exhibit 6.
[11] See Exhibit 1, p 142.
[12] See Exhibit 6.
The relationship with MVL’s father ceased at some stage thereafter.[13] Ms Cao then commenced another relationship with a person called Mr XH. Ms Cao initially told the Western Australian authorities that Mr XH introduced her to methylamphetamine in 2013.[14] She now says that it was a friend, known as ‘Sha Sha’, who introduced her (and then Mr XH subsequently) to it.[15]
[13] See Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [2.5].
[14] See Exhibit 1, p 384.
[15] See Exhibit 1, p 996, [9]-[12].
Ms Cao reportedly stopped using methylamphetamine when she became pregnant with her second daughter (JVH) in 2014.[16] However, by October 2014, Ms Cao was nevertheless a ‘mid to upper range’[17] drug-dealer, with a third person called Mr PM.[18] This drug-dealing was found to be solely for the purposes of commercial gain.[19]
[16] See Exhibit 1, pp 384, 508.
[17] See Exhibit 1, p 385.
[18] See Exhibit 1, p 383.
[19] See Exhibit 1, p 384.
In the early hours of 26 October 2014, Ms Cao arranged to meet Mr PM in Northbridge to provide him with a package of drugs (27.8 grams of methylamphetamine, at 59% purity).[20] Whilst Ms Cao was in the front passenger seat of Mr PM’s car (with Mr XH behind her), the handover was intercepted by the police.[21] Ms Cao and Mr XH denied their involvement in this transaction, and they were initially released without charge. Their interaction with police that night did not deter them, and they continued their illicit enterprise:[22]
(a)In the early hours of 28 November 2014, Ms Cao and Mr XH were, in fact, the victims of a violent home invasion relevant to the ills occasioned by methylamphetamine (and their drug-dealing).[23]
(The Tribunal interpolates here that JVH was born on 1 January 2015, in Subiaco).[24]
(b)In February 2015, Ms Cao was found in possession of approximately $235,000 in cash reasonably suspected to have been unlawfully obtained (that is, derived from drug-dealing) over two periods that month ($199,850 found concealed in the bedroom wardrobe on 2 February 2015; and $35,200 found in her handbag during a vehicle stop on 23 February 2015).[25] She was granted bail on 2 June 2015.[26]
(c)On 17 September 2015, Ms Cao was found, during another search of the family home, to be in possession of less than four grams of methylamphetamine with intent to sell or supply it to another, and approximately $52,000 in cash.[27] She was granted bail on 16 October 2015.[28] On the same date, Ms Cao was also in possession of a small amount of methylamphetamine mixed with caffeine for personal use.[29]
(d)On 6 March 2016, Ms Cao was re-arrested and charged with the October 2014 offending.[30] She was granted bail.
(e)On 16 March 2016, and again on 24 March 2016, Ms Cao met with an undercover police officer at her home and arranged to sell him approximately two ounces or 55.5 grams of methylamphetamine (at 75% purity).[31] The drugs were brought to the house by Ms Cao’s then co-offender, Mr TJDP.[32] Mr XH had been remanded in custody from about March 2016 for his involvement in drug-dealing activities.[33]
(f)Police executed a search warrant on the family house on 14 April 2016 and Ms Cao initially denied any involvement.[34] Police found drug paraphernalia at the scene and approximately $21,500 in cash.[35]
(g)Police executed another search warrant on 5 December 2016, finding methylamphetamine (less than a gram) and cannabis mixed with tobacco (less than two grams) in the bathroom ensuite.[36]
[20] See Exhibit 1, pp 379-382.
[21] Ibid.
[22] See Exhibit 1, pp 212-213, 376, 380.
[23] See Exhibit 1, pp 209-210, 214-215, 359-360, 370-371, 505.
[24] See Exhibit 1, pp 113-116.
[25] See Exhibit 1, pp 217, 258-259, 472-478, 504, 509-511.
[26] See Exhibit 1, p 474.
[27] See Exhibit 1, pp 219, 260-265, 479-485.
[28] See Exhibit 1, pp 266-267, 482.
[29] See Exhibit 1, pp 486-489.
[30] See Exhibit 1, pp 371, 380-381.
[31] See Exhibit 1, pp 361-362, 382.
[32] See Exhibit 1, p 382.
[33] See Exhibit 1, p 387.
[34] Ibid. See also Exhibit 1, pp 229-231.
[35] See Exhibit 1, pp 269-274, 279, 281, 494-495.
[36] See Exhibit 1, pp 283, 490-491.
On 18 December 2017, Ms Cao was found guilty of the October 2014 offences at a trial before Herron DCJ and a jury.[37] At a sentencing hearing before his Honour on 8 March 2018, Ms Cao admitted her guilt to the March 2016 sale of methylamphetamine.[38] She was sentenced by Herron DCJ to a total effective sentence of four years three months’ imprisonment (backdated to 22 February 2018).[39]
[37] See Exhibit 1, pp 418-419.
[38] Ibid.
[39] Ibid.
On 27 April 2018, the Magistrates Court dealt with Ms Cao for the balance of the 2015 and 2016 charges.[40] Ms Cao received concurrent sentences of imprisonment for the related drug and possession of unlawfully obtained cash offences (ranging from six to 12 months’ imprisonment).[41]
[40] See Exhibit 1, pp 211-213.
[41] See Exhibit 1, pp 517-518.
On 7 February 2019, Ms Cao’s then partner visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (first cancellation decision).[42] She was notified of that decision by hand, at Bandyup Women’s Prison, and was invited to make representations seeking revocation of the first cancellation decision.
[42] See Exhibit 1, pp 138, 869-873.
On or about 11 February 2019, Ms Cao sought revocation of the first cancellation decision, with the assistance of her son and the law firm who presently represent her in this application.[43] This included statements and written submissions to the effect that:
[i]f my visa is reinstated, I will never contemplate returning to this life I lived before my imprisonment. My family is worth more to me that all the money I would stand to make by selling drugs. The fact that I have put my presence in Australia in jeopardy by doing something like this just for money has deepened my feelings of shame, sadness and disappointment in myself. My family deserves better, and if I am given the opportunity, I will do better for their sake.[44]
[43] See Exhibit 1, pp 875-915.
[44] See Exhibit 1, p 889 [101]-[102].
Ms Cao claims that she did not understand the import of the first cancellation decision or the submissions she made about revocation of it. The Tribunal found that evidence to be entirely unconvincing. Ms Cao had the presence of mind to brief a Mandarin-speaking law firm to assist her with that process. She reportedly had, and continues to have, a reasonable grasp of spoken English (confirmed at the hearing before the Tribunal).[45] The contents of those representations unequivocally demonstrate that Ms Cao in fact understood the potential consequences of further criminal conduct with respect to the longevity of her permission to remain in this country.[46]
[45] See Exhibit 1, pp 225, 429, 530, 555.
[46] See also Exhibit 1, p 976.
In the event, on 22 April 2020, the Minister decided to revoke the first cancellation decision.[47] Ms Cao was notified in multiple ways about that outcome, including by hand on 22 April 2020.[48]
[47] See Exhibit 1, pp 916-919.
[48] See Exhibit 1, p 919.
During the same time period, Ms Cao was separately being assessed for conditional release on parole. She attended an interview with the Department of Justice on 16 March 2020.[49] The authors of the parole assessment made the following risk assessment:
Ms Cao’s offending behaviour appears to be linked with her substance abuse and poor cognitive skills. She appeared to accept limited responsibility for her actions, instead minimising and justifying her behaviour whilst externalising blame. During the interview, Ms Cao presented limited strategies to reduce her likelihood of re-offending and/or relapse to substance abuse, however verbalised her willingness to engage in any programmatic intervention deemed necessary.
Ms Cao presented as motivated to comply with all obligations and requirements of any Parole Order imposed and it was acknowledged she has not previously been supervised by this Department. Ms Cao would likely benefit from psychological counselling, substance abuse counselling for relapse prevention intervention and gambling counselling. These interventions, in conjunction with urinalysis testing and brief intervention during supervision, would provide the basis for any plan management. …[50]
[49] See Exhibit 1, pp 537-540.
[50] See Exhibit 1, p 539.
In late April 2020, the Prisoners Review Board of Western Australia (PRBWA) made a parole order with supervision and programme requirements. Ms Cao was released on that order on 21 May 2020.[51]
[51] See Exhibit 1, p 584.
During the period of the first parole order, Ms Cao attended meetings with Community Corrections; eight alcohol and drug counselling sessions with ‘Fresh Start’; and nine sessions with a private psychologist.[52] Her compliance with the order was ‘rocky’ and she was returned to custody between 25 May 2021 and 17 July 2021.[53] The Department of Justice record the following summary of Ms Cao’s compliance with the parole order:
Overall, Ms Cao attended as directed. [Community Corrections Officer] notes Ms Cao had several positive [urinalysis] results to amphetamines and methamphetamines early in her Parole Order, although provided negative [results from] end of August 2021 until Order closure May 2022. Ms Cao’s engagement with [alcohol and drug] counselling appeared to have a positive impact on her substance use and Ms Cao disclosed she was able to build a relapse prevention plan for the future. CCO encouraged Ms Cao to remain in contact with AOD counselling for a few months after Parole expiry for extra support.[54]
[52] See Exhibit 1, p 580.
[53] Ibid.
[54] See Exhibit 1, p 580.
Ms Cao now claims that the alcohol and drug counselling sessions she attended as part of the parole order (and the private psychological consultations) were ‘ineffective’ due to language barriers and because she was not honest with her general practitioner and psychologist regarding her drug use.
The Tribunal accepts that Ms Cao had been dishonest with her general practitioner and that the psychological sessions she attended during this period were specifically for anxiety and depression (rather than for substance use).[55] However, the Tribunal does not accept that Ms Cao did not understand how to seek help with addiction during this period.
[55] See Exhibit 1, pp 1081-1083, 1089-1116.
Ms Cao relapsed into drug use in the later part of 2022 (following completion of the parole order).[56] At some stage in the second half of 2022, she re-commenced selling and supplying methylamphetamine, partly to feed her habit but also to make money.[57]
[56] See Exhibit 1, pp 436-437.
[57] See Exhibit 1, pp 439-440, 456.
Ms Cao returned to China with her children between 25 March 2023 and 2 May 2023.[58] This travel was because Ms Cao’s father was gravely ill. The Tribunal was told that the father died whilst they were in China.
[58] See Exhibit 1, p 142.
Some two weeks after Ms Cao’s return to Australia, on 14 May 2023, police executed another search warrant on the family home.[59] There, they found ‘a small black drawstring bag’ on a chest of drawers, which contained two plastic bags with 44 grams (at 80% purity) and 7.93 grams of methylamphetamine (at 81 % purity), respectively.[60] They also found digital scales, a vacuum sealer, and $38,675 in cash.[61] Ms Cao’s mobile telephone was subsequently examined and contained messages which were suggestive of drug-dealing from approximately late 2022.[62] There was also a notebook containing handwritten notations suggestive of drug debts.[63]
[59] See Exhibit 1, p 252.
[60] See Exhibit 1, pp 424, 431, 455.
[61] See Exhibit 1, p 432.
[62] See Exhibit 1, pp 431, 436-440.
[63] See Exhibit 1, pp 431-432.
Ms Cao was charged with several offences arising from the May 2023 search, including possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another and dealing in money that is the proceeds of crime.[64] She was committed for sentencing in the District Court and, on 21 March 2024, Ms Cao was sentenced to a total effective sentence of four years four months imprisonment by Barone DCJ.[65]
[64] See Exhibit 1, pp 423, 469-471.
[65] See Exhibit 1, pp 469-470.
To the extent that Ms Cao proffered an explanation about the presence of those drugs and the cash at her home in May 2023 to the Tribunal in writing,[66] this explanation was inherently implausible and generally inconsistent with the convictions, which included an element of possession with intent (and the sentencing facts found by the District Court). The Tribunal does not accept that explanation.
[66] See Exhibit 1, p 997 [21].
The related weapons and drug paraphernalia charges were dealt with by an aggregate fine in the Magistrates Court on 25 March 2024.[67]
[67] See Exhibit 1, pp 211, 519-529.
On 31 July 2024, Ms Cao’s permanent resident visa,[68] which had been granted in February 2023 (prior to the return trip to China), was mandatorily cancelled under s 501(3A) of the Migration Act (second cancellation decision).[69] She was notified of the second cancellation decision and invited to make representations seeking revocation.
[68] Being a Class BB Subclass 155 Five Year Resident Return (permanent) visa; rather than the former Class BC Subclass 100 Partner (permanent) visa, which had been cancelled in 2019 and restored in 2020.
[69] See Exhibit 1, pp 143-150.
On or about 29 August 2024,[70] Ms Cao made representations seeking revocation.[71] Ms Cao briefed the same law firm to assist her with that application.
[70] See Exhibit 1, p 36 [3].
[71] See Exhibit 1, pp 68-137.
On 18 June 2025, a delegate of the Respondent (Minister) refused to revoke the second cancellation decision under s 501CA(4) of the Migration Act (Non-Revocation Decision).[72] Notification was not effected until 23 June 2025.[73]
[72] See Exhibit 1, p 33.
[73] See Exhibit 1, pp 25-32.
The Applicant sought review of the Non-Revocation Decision in this Tribunal, within time on 27 June 2025.[74] In accordance with s 500(6L) of the Migration Act, the Tribunal must determine the application by 15 September 2025. The decision was made on 12 September 2025, with reasons to follow shortly thereafter.
[74] See Exhibit 1, p 9.
THE HEARING
The parties appeared in-person before the Tribunal on 1, 2, 4 and 9 September 2025. Ms Cao was brought up from Wandoo Rehabilitation Prison for that purpose. She was represented by Ms Briony Chen of Tang Law Pty Ltd. The Minister was represented by Mr Lucas Roosendaal of Sparke Helmore Lawyers.
Throughout the hearing, the Tribunal was assisted by multiple NAATI accredited Mandarin interpreters, either in-person or by video-link. Both Ms Chen and Mr Roosendaal have tertiary qualifications in the Chinese language, and they were each able to raise any difficulties with the interpretation of the Applicant’s evidence as they arose. Any such difficulties were put to the respective interpreters for comment and the Tribunal is satisfied that the interpreting undertaken in this matter was competent and sufficiently adequate to enable the Applicant to give her evidence and present her case.
The following documents were marked as exhibits:
(a)Joint Hearing Bundle, including the parties’ respective written submissions (1,138 pages) (Exhibit 1);
(b)DFAT Country Information Report for the People’s Republic of China dated 27 December 2024 (DFAT Report) (72 pages) (Exhibit 2);
(c)Letter from Western Australia Police Force, Legal Services dated 4 August 2025 (three pages) (Exhibit 3);
(d)‘Methamphetamine: Forms and Use Patterns’ (2006) National Drug and Alcohol Research Centre, University of New South Wales (two pages) (Exhibit 4);
(e)Family Violence Restraining Order (FVRO) (Magistrates Court of Western Australia, Perth, MC/CIV/PER/RO/5732/2022) dated 30 November 2022 (seven pages) (Exhibit 5);
(f)Extract from the Department of Home Affairs’ Integrated Client Service Environment, ‘Visa list’ for the Applicant dated 2 September 2025 (one page) (Exhibit 6); and
(g)Department of Justice (WA), Wandoo Rehabilitation Prison Therapeutic Community Brochure dated 28 March 2025 (two pages) (Exhibit 7).

The Tribunal notes that the Joint Hearing Bundle contained irrelevant and sometimes prejudicial materials, [75] which the Tribunal was told had been included for ‘completeness’. Consistent with what the Tribunal said in Re PGQM and Minister for Immigration and Citizenship [2025] ARTA 1245 at [9]-[14], I have not had any regard to these documents and the Tribunal expects that documents of that kind are not to be included in future tender bundles. The parties indicated that they were content with that course and the Applicant’s counsel confirmed that the Applicant did not seek recusal on the grounds of apprehended bias. The Tribunal notes that the Bundle was prepared by conferral,[76] and that these irrelevant documents were not objected to by the Applicant until part-way through the hearing. The Tribunal is satisfied that there was not a proper basis for recusal in any event.[77]
[75] See e.g. Exhibit 1, pp 218, 232-233, 234-235, 236-237, 239-240, 241, 242-245, 246-247, 248, 249, 250-251.
[76] The parties were directed to confer regarding its contents and preparation on 14 July 2025 (programming direction [5]).
[77] See MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152, [3], [32]-[52], [78]-[85].
At the hearing of the review, the Applicant was advised, in simple terms, of her right to invoke the privilege against self-incrimination prior to her giving evidence.[78] She was reminded of that right throughout the hearing. On one occasion, the Tribunal also explained the concept of ‘advice privilege’[79] to Ms Cao when she was being questioned about some of her prior dealings with her lawyers (and specifically her knowledge about the potential consequences of re-offending for her migration status). Immediately following that explanation, the Applicant’s counsel was granted a short adjournment for the purposes of explaining both concepts more fulsomely to the Applicant, in Mandarin.
[78] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65].
[79] See Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788, [8], [29]-[31].
On 4 September 2025, the Applicant sought that the Tribunal strike out some of her earlier oral evidence on the basis that it was ‘incriminating’. No objection was taken to the questioning at the time in which the evidence was given, and the Tribunal is not satisfied that the Applicant’s evidence was given under compulsion or in ignorance of the privilege against self-incrimination. Moreover, the evidence was of peripheral relevance. Accordingly, the Tribunal dismissed that interlocutory application.
At the substantive hearing of the review, the Tribunal took oral evidence from the Applicant and her son, JC.
LEGAL FRAMEWORK
The question for determination by the Tribunal is whether the decision not to revoke the mandatory cancellation of Ms Cao’s permanent resident visa is the ‘correct or preferable decision’ on the material before the Tribunal.[80]
[80] ART Act, ss 9, 54, 56(1)(a).
Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i)the Applicant passes the character test (as defined by s 501); or
(ii)there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, the majority of the High Court described this section of the Migration Act as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation if the decision-maker (whether the Minister, their delegate, or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked.[81] The majority held that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the Applicant.[82]
[81] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, [22].
[82] Ibid. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594, [6].
In reviewing decisions of this kind, the Tribunal must comply with Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction)[83] given by the Minister under s 499(1) of the Migration Act.[84] This is a legislative constraint on the Tribunal’s process of reasoning.[85] However, as the Full Court identified in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582,[86] the principles stated in Drake (No 2)[87] and the cases since, regarding the application of governmental policy, and the Tribunal’s ability to depart from it, where appropriate, remain applicable.[88]
[83] Direction, cl 1.
[84] Direction, cl 5.1(4); Migration Act s 499(2A).
[85] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, [33].
[86] Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, [23], [81].
[87] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[88] See also Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82, [27].
Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must ‘take into account’ the factors identified in cls 8 and 9 of the Direction (where relevant) in deciding the application.[89] In this review, those relevant factors are:
(a)the protection of the Australian community from criminal or other serious conduct;
(b)the strength, nature and duration of ties to Australia;
(c)the best interests of minor children in Australia;
(d)the expectations of the Australian community;
(e)the legal consequences of the decision; and
(f)the extent of impediments if removed.
CONSIDERATION
[89] Direction, cl 6.
Representations in accordance with invitation
Ms Cao was hand-delivered notification of the second cancellation decision on or about 31 July 2024, which is a method prescribed by reg 2.55(3)(a) of the Migration Regulations 1994 (Cth) (Regulations). The Applicant was taken to have received the notice when it was handed to her.[90]
[90] Migration Regulations, reg 2.55(5).
Regulation 2.52(2)(b) prescribes that any representations seeking revocation of the cancellation must be made to the Minister within 28 days after the person is given notice of the mandatory cancellation. As discussed at [26] above, Ms Cao made representations seeking revocation of the Cancellation Decision within that timeframe. They were in English and complied with the balance of the requirements set out in reg 2.52(4) of the Regulations.
Accordingly, the Tribunal is satisfied that Ms Cao made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.
Character test
The Tribunal must decide whether the Applicant passes the character test as defined by s 501 of the Migration Act.[91] Failure to pass the character test arises as a matter of law.[92]
[91] Direction, cl 5.1(3) and Annexure A; See also Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40] (not disturbed on appeal, [2025] FCAFC 78).
[92] See Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63].
Section 501(6)(a) of the Migration Act sets out that a person does not pass the character test if ‘the person has a substantial criminal record (as defined by subsection (7))’. The term ‘substantial criminal record’ includes when ‘the person has been sentenced to a term of imprisonment of 12 months or more’[93] and when they have been ‘sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’.[94]
[93] Migration Act, s 501(7)(c).
[94] Migration Act, s 501(7)(d).
It was common ground that Ms Cao did not pass the character test by virtue of the sentences of immediate imprisonment imposed by the District Court of Western Australia on 14 May 2023.[95] The Tribunal agrees.
[95] See ASFIC, [4.1]; RSFIC, [22]; see also Exhibit 1, pp 469-470.
The Tribunal finds that the Applicant does not pass the character test because she has a ‘substantial criminal record’ as defined in s 501(6)(a), read with ss 501(7)(c)-(d), of the Migration Act.
The Tribunal is therefore not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act.
Is there ‘another reason’?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant, and to any relevant primary and other considerations contained within the Direction, there is ‘another reason’ why the Cancellation Decision should be revoked.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date, and from any risk of such harm arising in the future.[96] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date, and the risk to the community if further offences are committed or the Applicant engages in other serious conduct.[97]
[96] See Direction, cls 8(1) and 8.1.
[97] Direction, cl 8.1(2).
It should be noted at this juncture that the Tribunal is not sentencing Ms Cao for her past deeds. That has already happened. Rather, the Tribunal must assess whether Ms Cao’s ‘continued presence here would be opposed to the safety and welfare of the nation’.[98]
[98] See Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [94].
The concept of ‘risk’, and whether it is ‘unacceptable’, under cl 8.1 of the Direction is not the same thing as the ‘likelihood of the non-citizen engaging in further criminal or other serious conduct’.[99] For this purpose, an ‘unacceptable risk’ is a risk which the Tribunal considers to be ‘unacceptable’ having regard to a variety of considerations, including:
(a)the nature and seriousness of the Applicant’s criminal offending and other conduct to date (including the sentences imposed by the courts for a crime or crimes);
(b)the likelihood of the Applicant engaging in further criminal or other serious conduct; and
(c)the nature of the harm that could be caused by further offending.
[99] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471, [74].
The Direction informs the Tribunal’s risk assessment, at cls 5.2, 8.1(1), 8.1.1(1) and 8.1.2(1), by reiterating, amongst other things, that the Executive Government:
(a)is committed to ‘protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’;
(b)considers identified types of conduct to be ‘very serious’ or ‘serious’; and
(c)considers that ‘the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.’
It follows that the ‘risk’ referred to in the balancing exercise contemplated by those clauses of the Direction is not to any risk that an applicant may commit further criminal or other serious conduct but is calibrated towards the Tribunal’s assessment of the nature and degree of the harm said to be in prospect in the case at hand.
Nature and seriousness of the conduct to date
The Tribunal has set out the historical background to this application at [2]-[28] above. Ms Cao is a repeat ‘drug trafficker’ within the meaning of s 32A(1) of the Misuse of Drugs Act 1981 (WA),[100] who has had her permanent residency cancelled twice as a direct consequence of the criminal sanctions imposed for her ‘mid-level’ dealing in methylamphetamine between:
(a)September 2014[101] and December 2016; and
(b)the second half of 2022 and May 2023.[102]
[100] See Exhibit 1, pp 417, 470.
[101] See Exhibit 1, p 380.
[102] See Exhibit 1, pp 56, 385.
The two drug trafficker declarations made by the District Court potentially expose the family home in Atwell to confiscation under the Criminal Property Confiscation Act 2000 (WA),[103] but the Tribunal was given no evidence about whether the Western Australian Government was pursuing that course.
[103] As to which see e.g. Cook v State of Western Australia [2025] WASC 347, [36].
Ms Cao admits that her offending to date is ‘serious and inexcusable’.[104] However, she sought to argue that the Tribunal should not classify her conduct to date as being ‘very serious’.[105] The Minister argued for the contrary conclusion.[106]
[104] See ASFIC, [4.10].
[105] See ASFIC, [4.11]-[4.16].
[106] See RSFIC, [30]-[37].
The Tribunal is required to assess for itself the nature and seriousness of an applicant’s conduct to date, and the weight which should be attributed to this factor.[107] It may be accepted, as Ms Cao argues, that her offending falls outside the range of conduct expressly identified in cl 8.1.1(1)(a) of the Direction as being viewed very seriously by the Australian Government and the Australian community. However, this is not determinative, and that clause does not limit the range of conduct that may properly be considered as either very serious or serious.
[107] See BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2025) 307 FCR 150, [107].
The Applicant’s history to date is identified in the three-page ‘History for Court – Criminal and Traffic’ prepared by the Western Australian Police Force and located at Exhibit 1, pages 211-213.
(a)Ms Cao has been sentenced to immediate imprisonment on three separate occasions (albeit the sentences imposed by the Magistrates Court on 27 April 2018 were ordered to be served concurrently with the sentences imposed by the District Court on 8 March 2018).
(b)It is trite to say that imprisonment is a sentence of last resort.[108] The sentences imposed by the courts reflect their assessment of the seriousness of the Applicant’s conduct. In particular:
[108] See McFarlane v State of Western Australia [2024] WASCA 33, [41].
oJudge Herron took a dim view of Ms Cao’s offending in October 2014 and March 2016, finding in March 2018 that:
(i)Ms Cao was involved in drug-dealing purely for commercial purposes;[109]
[109] See Exhibit 1, p 384.
(ii)the offending must be viewed in the context of active involvement in drug-dealing activities over a period of time;[110]
[110] Ibid.
(iii)Ms Cao’s role in the distribution of methylamphetamine was at the mid to upper range of the level of seriousness of such offending and greater than the role played by her then co-offenders; Ms Cao was the ‘principal offender’ in the enterprise;[111] and
[111] Exhibit 1, p 385.
(iv)The potential degree of harm which would have been caused to the community had the methylamphetamine not been seized and instead been distributed into the community would have been ‘significant’, including the ‘well-known’ proposition that this illicit drug ‘no only causes significant health risks to people using it, but it leads to a broad range of other criminal activity, including violence, aggravated burglary, and stealing/property offences.’[112]
[112] Exhibit 1, p 385. Similar remarks were made by Barone DCJ in March 2024, see Exhibit 1, p 56. See also La Rosa v The Queen (Supreme Court of Western Australia, 31 October 1996, Library No 960628C), at 14-15.
oMagistrate Campione held similar views to that of Herron DCJ in April 2018.[113] Her Honour found that:
[113] See Exhibit 1, p 509.
(i)Ms Cao had been in possession of ‘very significant sums of money’;
(ii)there was ‘significant drug dealing activity that was going on’;
(iii)Ms Cao’s motivations were commercial and to be viewed on the basis that the offending was not isolated or deterred by the involvement of the authorities or being placed on bail; and
(iv)Methylamphetamine is ‘such a disease in our community’.[114]
oBoth Herron DCJ and Magistrate Campione accepted the submissions advanced to them that Ms Cao was aware of the ‘extreme nature of [her] offending’ and was ‘motivated to address [her] involvement in illicit drugs and to engage in counselling’.[115] The Tribunal will return to that proposition in the context of its risk assessment below.
oJudge Barone held, on 21 March 2024, that:
(i)Ms Cao had been engaged, over a period of time, in the sale and supply of methylamphetamine;
(ii)‘these offences are serious’ and ‘cause a lot of harm in the community’;
(iii)notwithstanding the possession of just under $40,000 in May 2023 as the proceeds of crime, Ms Cao was not ‘living a lavish lifestyle’ and this money is ‘indicative of [Ms Cao] being a mid to low-level user/dealer, funding [her] addiction through her offending and topping up, it seems, [her] provision for [her] life and family beyond [her] legitimate work’;
(iv)Ms Cao’s addiction and financial stressors ‘puts the context behind [the] offending, but can never excuse it’; and
(v)Ms Cao ‘found it difficult to resist methylamphetamine after [she] was released from goal’ in May 2020 (and again in July 2021).[116]
(c)Lastly, Magistrate Lemmon, on 25 March 2024, sentenced Ms Cao to an aggregate fine of $800 for the related weapons and drug paraphernalia offences from May 2023.[117]
[114] See Exhibit 1, pp 509-510.
[115] See Exhibit 1, pp 388-389, 510.
[116] See Exhibit 1, pp 455-463.
[117] See Exhibit 1, pp 519-529.
The features which elevate the overall objective seriousness of Ms Cao’s conduct to date, as identified by the Minister in oral closing submissions, include its frequency; the cumulative effect of repeated offending; and the fact that the most recent offences occurred following an earlier mandatory cancellation, where it is beyond any real doubt that the Applicant was cognisant of the potential consequences of further offending in terms of her migration status.
For the above reasons, the Tribunal finds the nature and seriousness of the Applicant’s criminal offending and other serious conduct to date to be very serious.
Risk to the Australian community should the Applicant engage in further conduct
The Tribunal is required to have regard to the future risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[118]
[118] Direction, cls 8.1.2(2)(a)-(b).
There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[119]
Nature of harm
[119] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].
Both parties contended that further offences involving the distribution of methylamphetamine into the Australian community could have wide-ranging effects on those involved and the community more broadly.[120]
[120] See ASFIC, [4.18]; RSFIC, [39]-[42].
The Tribunal reiterates the comments made by the courts in dealing with Ms Cao for her past crimes (quoted above). It is the experience of the courts,[121] and of the Tribunal,[122] that illicit drugs cause or materially contribute to a very significant proportion of criminal offences committed in this country, either as a result of users acting under their influence or because of the need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. That was clearly the case for Ms Cao over the past decade. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of them; to dealing with the increased demand placed on the health system by drug users; and with respect to many other facets of life that are each affected by its corrosive touch.
Likelihood of re-offending
[121] See State of Western Australia v Saxild [2008] WASCA 156, [9]-[11].
[122] See Re Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171, [50]-[58].

The parties jointly agreed, in closing submissions, that the evidence suggested that Ms Cao would likely be in the ‘low to moderate’ range of likelihood of re-offending in a similar way. That concession was appropriate.
The Applicant initially claimed in evidence that she did not ‘have enough learning or knowledge’ the first time she faced consequences for her drug-dealing. She told the Tribunal that she did not know how to ‘resolve the problem’. That ‘problem’ appears to have been her addiction to methylamphetamine, her then poor employment prospects, and the need to finance her living expenses, including familial obligation to transfer money to China to assist her family resident there (particularly her then ailing father) and to provide for her children (especially the daughters).
The Tribunal is not satisfied that the Applicant did not know or appreciate that she was breaking the law or that she was consequently at risk of imprisonment and ‘deportation’.[123] Rather, the Applicant’s conduct between 2014 and 2023 is indicative of a general disregard for the law and for the consequences of breaking it. This is apparent from the commission of multiple crimes whilst on bail and her return to drug-dealing significant amounts of methylamphetamine in late 2022. However, it must be said, to Ms Cao’s credit, that she appears to have taken steps to turn her life around. Ms Cao has stopped smoking. She exercises regularly. And, significantly, between 26 June 2024 and 8 April 2025, she successfully completed the Wandoo Therapeutic Community Program.[124] The Tribunal was provided with a heavily redacted Completion Report for that programme dated 5 May 2025.[125] There seems to have been no basis in law for most of those redactions, but the Tribunal did not have the time necessary to rectify this with the Department of Justice.[126]
[123] In the colloquial sense, rather than the concept used in Pt 2 Div 9 and s 5(1) of the Migration Act.
[124] See Exhibit 1, pp 957-964, 983, 985, 991-995, 1018, 1020.
[125] See Exhibit 1, pp 957-964.
[126] As to which, see s 500(6L) of the Migration Act.
The Wandoo Completion Report refers to a treatment assessment conducted in June 2024.[127] The Tribunal was provided with a copy of the Treatment Assessment Report (TAR).[128] At that time, the Applicant was assessed by the Western Australian authorities as being a ‘medium’ risk of re-offending.[129] The clinician identified within the TAR that Ms Cao had ‘significant outstanding treatment need’ for illicit substance use.[130] They said:
Based on the integration of all the information gathered from collateral documentation, the treatment assessment interview, and the risk tools; it is hypothesised that the factors predisposing Ms Cao to developing offending behaviour included a challenging upbringing in China, where she experienced recurring emotional and physical abuse from her mother. It is the Treatment Assessor’s opinion that the precipitating factors triggering Ms Cao’s onset of offending behaviour, include her transition from prison into the community in 2021, her father’s death in 2023 resulting in her becoming responsible for sending money home to her family in China, and her relapse to illicit substance use. It is possible that the factors perpetuating this behaviour included the family dynamics and culture in China, such that it falls on her to financially support her family there, feeling to proud to ask others for financial support, the financial pressures of being a single mother of two young daughters in Australia, lack of capacity for engagement in positive leisure and recreation, having peers and acquaintances involved in the illicit drug trade, and the ongoing negative influence that her mother has on her in late adulthood. Ms Cao has protective factors in the form of positive support from friends in the community, marketable skills for legitimate employment, her own import business to return to, a strong work ethic and desire to upskill, stable accommodation with a pro-social friend, and no current substance use in prison.[131]
[127] See Exhibit 1, p 959.
[128] Exhibit 1, pp 541-544.
[129] See Exhibit 1, pp 541-557.
[130] See Exhibit 1, pp 543-544.
[131] Exhibit 1, p 543 [8] Formulation of Treatment Needs.
The authors of the Wandoo Completion Report summarise the identified treatment needs set out in that TAR as:
(a)Problematic alcohol and drug use;
(b)Relationships with antisocial peers; and
(c)Emotional regulation.[132]
[132] See Exhibit 1, p 959.
They identified in their summary of Ms Cao’s participation in the programme and recommendations for the future that:
Ms Cao was observed to make gains regarding her AOD use through identifying how she relied on it to help her function, manage emotions and meet financial needs. She implemented new strategies to manage her time better through using a diary. She consistently engaged in pro-social activities while in the program including choir, culture club and crochet.
Ms Cao did make gains in relation to her relationships which was noted in her increased confidence in groups and her ability to be assertive and give feedback to [redacted]. She reported [redacted] and was focused on pro-social connections. Ms Cao made gains in relation to her emotional regulation as she was observed to use reframing strategies and goal setting that she was advised helped her feel less stressed overall.
Based on Ms Cao’s self-report and observation by facilitators during the program it is recommended that the following be addressed post-release to manage her risk of reoffending:
·Regular urine analysis.
·AOD focussed counselling.
·Engagement with peer led support groups.[133]
[133] Exhibit 1, p 963.
Ms Cao is eligible for release on parole from 13 September 2025, subject to any decision to be made by the PRBWA.[134]
[134] See Exhibit 1, p 571; Sentencing Act 1995 (WA), s 93.
The Tribunal was told that the PRBWA have deferred their decision on whether to grant the Applicant conditional release on parole until 25 September 2025 (pending the outcome of this review). However, the Tribunal was provided with the Parole Review Report prepared under s 17 of the Sentence Administration Act 2003 (WA) (Sentence Administration Act) on 18 July 2025.[135] That report indicates that Ms Cao has returned negative results for random drug and alcohol tests conducted in prison since 2023,[136] that she ‘continues to demonstrate positive conduct in [prison] since the completion of the Therapeutic Community Program’, and that she has no prison charges from this term of imprisonment.[137] It was noted that Ms Cao is medicated for anxiety and depression but is otherwise well, both mentally and physically (that accords with her evidence to the Tribunal).[138] The prison authorities recommended conditional release on parole as follows:
…pending confirmed, suitable accommodation in view of:
1.     Participation in voluntary programs and education, which demonstrates a motivation and willingness to address offending behaviour.
2.     Successful completion of the Wandoo Therapeutic Community with reported gains.
3.     The parole plan includes community and family supports.
4.     Positive prison conduct and excellent industry reports, which demonstrate an ability to comply with directions within a custodial setting.
5.     The fact the conditions of parole will further reduce the risk to the safety of the community.
6.     The fact that supervision for the remainder of the sentence in the community to monitor Ms Cao’s behaviour, assisting her reintegration and rehabilitation is likely to offer more protection to the community in the long term than her release without any supervision at the end of her sentence.[139]
They also recommended that the PRBWA impose programme and supervision requirements on any order.[140]
[135] See Exhibit 1, pp 571-578.
[136] Exhibit 1, pp 573-574 [7.2].
[137] Exhibit 1, p 574 [7.5].
[138] See Exhibit 1, pp 575-576 [11].
[139] Exhibit 1, p 577-578 [14.1], [15.1].
[140] See Exhibit 1, pp 577-578 [14.2], [15.2].
The Applicant’s parole term expires on 13 September 2027.[141]
[141] See Exhibit 1, p 571.
The PRBWA will be required to consider the ‘release considerations’ set out in s 5A of the Sentence Administration Act, including the ‘safety of the community as a paramount consideration’.[142] For similar reasons expressed in Re Scott and Minister for Immigration and Citizenship [2025] ARTA 997 at [117]-[120], the Tribunal accepts that the views of the Western Australian authorities with respect to the Applicant’s risk of recidivism are relevant to, but not determinative of, the Tribunal’s risk assessment.
[142] See Sentence Administration Act 2003 (WA), s 5B.
For the above reasons, the Tribunal finds, on the evidence before it, that Ms Cao poses a low to moderate likelihood of re-offending. In particular, she has ongoing treatment needs relating to addiction (and potentially also emotional regulation and to a lesser extent negative peers). Steps have been taken to address those needs, but Ms Cao requires further supervision and support, particularly in a community setting.
Conclusion on the protection of the Australian community
The Tribunal finds the Applicant to pose a risk to the Australian community. It has found that:
(a)further involvement in drug dealing has the potential for very serious harm; and
(b)the Applicant poses a low to moderate likelihood of committing such conduct in the reasonably foreseeable future notwithstanding that she has developed some insight into her offending behaviour and has been attending the rehabilitative courses available to her in prison; and
(c)there is potential supervision and treatment by Western Australia until September 2027.
The question that arises then is whether that risk is ‘unacceptable’?
The Minister argued that the risk was unacceptable because of:
(a)the risk assessments made by Western Australia;
(b)the Applicant’s claimed insight, remorse, and protective factors are akin to the representations made to the Minister (and to Western Australia) in 2019-2020 and these factors did not prevent her from relapsing into methylamphetamine use and drug-dealing; and
(c)the financial and personal stressors that remain (notwithstanding the death of Ms Cao’s father in early 2023).[143]
[143] RSFIC, [43]-[44]; Closing submissions.
The Applicant’s counsel argued that this matter was ‘about the journey for a woman that once struggled with addiction but now stands changed, rehabilitated, remorseful, and determined to return home to her children.’[144] It was conceded that the Applicant poses a risk to community safety but it was put that this was an acceptable risk because her attitudes have now changed, her key relationships have changed (especially with respect to her children), and that some of the financial pressures have lifted.[145]
[144] Closing submissions.
[145] Closing submissions. See also Reply Submissions, [5.16]-[5.39].
The Direction contains policy guidance, at cls 5.2, 8.1(1), 8.1.2(1), to the effect that:
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to …remain in Australia. Being able to …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 (cls 5.2(1), 8.1(1));
The safety of the Australian community is the highest priority of the Australian Government’ (cl 5.2(2)). ‘To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 8.1(1));
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (cl 5.2(3));
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a [measurable] risk of causing physical harm to the Australian community (cl 5.2(4));
In considering the need to protect the Australian community …from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some 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 (cl 8.1.2(1));
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify …revoking a mandatory cancellation (cl 5.2(7)); and
The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify …revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a [measurable] risk of causing physical harm to the Australian community (cl 5.2(8)).[146]
[146] The tolerance identified at cl 5.2(6) of the Direction does not arise on the facts; cf ASFIC, [4.53].
The Tribunal is authorised, but not bound, to give the above policy guidance weight.[147] The Tribunal respectfully considers the policy considerations identified above to be appropriate, and to conform with the terms of the Migration Act and the nature of the power found in s 501 and its analogous provisions.
[147] See Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCFAC 82, [22]-[23], [27[-[28]; Price v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 301 FCR 484, [71]-[72].
The Applicant contravened the expectation that she be law-abiding and not cause or threaten harm to the Australian community. She has repeatedly engaged in the sale and distribution of methylamphetamine into the Australian community. She was reminded of that expectation when she was imprisoned in 2018, and when her permanent residency was subsequently cancelled. Ms Cao then deliberately chose to ignore the perils associated with further drug dealing. She has been imprisoned for that conduct and now faces the prospect of removal from this country. The Tribunal has found, on the evidence before it, that Ms Cao poses a low to moderate likelihood of recidivism in the reasonably foreseeable future. That assessment is primarily based upon the substantial steps taken to address drug addiction in the last 12 months, which has reduced that likelihood from a higher starting point. There is two further years of imprisonment or supervision by the Western Australian authorities to run their course and this offers some measure of community protection because of the opportunity for further treatment needs to be met in that structured way. However, putting that all together, the risk of re-offending in this case is properly characterised as being ‘unacceptable’ because of the inherently serious nature of dealing in commercial or trafficable quantities of methylamphetamine and the evidence before the Tribunal demonstrative of its potential repetition being more than a remote possibility (that is, a risk that is not trivial or transient). The Tribunal is conscious of the adverse effects that a conclusion of this kind might have on Ms Cao and her family and has weighed that in the balance, given the burden that such a conclusion might have on the outcome of these proceedings based upon an assessment made about the risk of the commission of future crimes. Nevertheless, the Tribunal considers that the Applicant presently poses an ‘unacceptable’ risk to the Australian community.
The Tribunal finds this primary consideration to weigh heavily against revocation.
Strength, nature and duration of ties to Australia
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia.[148] The Tribunal must also consider the strength, nature, and duration of any other ties that the Applicant has to the Australian community, having regard to how long she has resided in Australia,[149] and the ‘strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia’.[150]
[148] Direction, cl 8.3(1).
[149] Direction, cl 8.3(2)(a).
[150] Direction, cl 8.3(2)(b).
The Applicant’s ‘immediate family members’[151] in Australia comprise her Australian-citizen children:
(a)JC (30), who lives with his long-term partner (ML) in Burswood.[152] JC works as a mechanic at a Toyota dealership.[153] ML is a permanent resident who works for a large bank.[154] His evidence to the Tribunal was to the effect that he desired his mother to remain in Australia and that her absence, in prison, has increased the burden on him to care for (or at least contribute to the upbringing of) his two half-sisters. He told the Tribunal that he did not think he could look after his two sisters if the Tribunal made an adverse decision because he would probably have to ‘quit my job and break-up with my girlfriend’. He was challenged on both propositions and indicated that he had historically reduced his hours of employment to look after the sisters in March 2018 (when he then worked at Crown Casino on a part-time basis whilst studying for his trade certificate); and that he (and his partner) had moved into the family home for that purpose (the first-time round). He said that he had promised his partner that they would not do so again and that they ‘honestly… do not really like kids’; instead, they would like to travel and to save for buying their first house. Subsequently, in cross-examination, JC then indicated that he wanted to get married and have children with his partner, and he said that looking after his sisters would likely get in the way of that goal being realised. JC was asked to explain the current living arrangements. He told the Tribunal that both sisters presently reside at the family home in Atwell. They are cared for by a combination of MVL’s paternal grandparents (who own that residence), their mother’s good friend (Mrs JC) and her parents (whom the sisters view as their grandparents) and him. The Tribunal got the distinct impression that JC was generally exaggerating the burden posed by his sisters and how a potential adverse decision may affect his life and long-term relationship.[155] This was conceded by the Applicant’s counsel in closing. For example, in re-examination, he testified that MVL had been to Hong-Kong ‘quite a few times’ with her father on holiday. However, JC was asked what would happen to his sisters if their mother was required to be removed from Australia and he gave the following frank appraisal:
[MVL] is almost an adult, so I think she will be just fine, but mum is the only person she speaks to with a full heart.
In respect of JVH he said,
[she] is like Matt Damon in Good Will Hunting, she is really smart. Our mother is like Robin Williams in that movie. If not for Robin, she will be like a street kid or worse. She needs proper guidance from her mother, like anger management, patience, discipline and manners. Things that can only be taught by a parent. She does not need to listen to me and her thinking and mine can be quite different because she was raised here. I lack the patience.
(b)MVL is 16 years of age.[156] She is completing Year 11 and intends to study biochemistry at university.[157] The Tribunal was provided with a letter authored by a psychologist in June 2023, indicating that MVL had been experiencing ‘significant symptoms of anxiety and distress and low mood’ because of the Applicant being arrested in front of her (and her younger sister) in May 2023, and the Applicant then being taken into custody thereafter.[158] She provided a letter dated 26 August 2024 asking for the second cancellation decision to be revoked.[159] MVL’s father is 68 years of age.[160] The Tribunal was told by Ms Cao that the father has a ‘serious problem with diabetes’ and lives in public housing.[161] It seems that MVL sees her father on a monthly basis.[162] JC told the Tribunal that MVL’s father was ‘not a good choice; he is recently retired and let’s just say his English is not that good and nor is his personal hygiene’. Various people also put forward suggestions that MVL might be ‘autistic’ or have ‘behavioural issues’ regarding their sexuality.[163] However, there was no expert evidence about this.
(c)JVH is 10 years of age.[164] She is completing Year 5.[165] Mrs JC describes her as ‘very talkative, finds it hard to focus on learning, … short-tempered, …highly competitive [and] displays symptoms [which might be] consistent with ADHD, such as difficulty maintaining attention, impulsivity, emotional outbursts, and challenges with self-regulation.’[166] As with the speculation about MVL, there was no expert evidence about JVH. It seems that she has a limited relationship with her 42 year old father.[167] The Tribunal was provided with an interim FVRO made by the Perth Magistrates Court on 30 November 2022, against JVH’s father and for the protection of Ms Cao.[168] JVH is specifically not included in that interim order and there was no proof of service or of a final order having been made for the purposes of s 16 of the Restraining Orders Act 1997 (WA).[169] On its face, the interim order has ceased in any event. The Tribunal was told that Ms Cao is contemplating making a fresh application for one, and potentially including JVH as a protected person in that application. The Tribunal was separately provided with two police incident reports, dated 6 January 2016 and 6 February 2016, respectively,[170] regarding attendance at the family home in response to concerns raised by Ms Cao at that time in respect of aggression by Mr XH (particularly when he was affected by illicit drug use). On both occasions, police orders issued. The Tribunal notes that Ms Cao was drug dealing for the majority of JVH’s life, save for the periods where she has been in custody (discussed further below). It is nevertheless clear to the Tribunal that there is a meaningful relationship between Ms Cao and her youngest daughter and that the daughter wants her mother to be caring for her in-person.[171]
[151] As to which see Re Anane and Minister for Immigration and Multicultural Affairs [2025] ARTA 822, [82]-[85].
[152] See Exhibit 1, p 124.
[153] See Exhibit 1, p 1026 [2].
[154] See Evidence on 9 September 2025.
[155] See also Exhibit 1, p 1025 [18].
[156] See Exhibit 1, pp 110-111.
[157] See Exhibit 1, pp 952-956, 999 [34].
[158] See Exhibit 1, pp 128-129
[159] See Exhibit 1, p 107. See also an undated letter to the District Court (in 2023) at Exhibit 1, p 126.
[160] See Exhibit 1, p 111.
[161] See Exhibit 1, p 1000 [37].
[162] See Exhibit 1, p 128. Cf Exhibit 1, p 1024 [8], [12].
[163] See Exhibit 1, pp 999 [34]-[35], 1024 [8], 1026 [7]-[8].
[164] See Exhibit 1, pp 113-115.
[165] See Exhibit 1, pp 946-951.
[166] See Exhibit 1, p 1024 [10].
[167] See Exhibit 1, pp 114, 997 [16], 999-1000 [36]-[37], [42], 1024 [9], 1027 [11].
[168] Exhibit 5.
[169] See in particular, Exhibit 3.
[170] Exhibit 1, pp 220-227.
[171] See Exhibit 1, pp 108-109, 127.

The Applicant advanced a case to the effect that she was a long-term resident, who had established her life, home and family in Australia.[172] It was put that she had contributed positively through self-employment and by raising her children.[173]
[172] See ASFIC, [4.53]; Reply, [5.43]-[5.49].
[173] Ibid.
The Minister resisted the Applicant’s reported self-employment being given any meaningful weight and identified the only real social tie as Mrs JC.[174]
[174] See RSFIC, [49]-[51].
When Ms Cao first emigrated to Australia in March 2007 at 35 years of age,[175] she appeared to work in the agricultural sector. That employment ceased prior to 2014.[176] As set out in the Background section to these reasons, she then turned to drug-dealing for commercial gain and was otherwise in receipt of social security benefits for various periods.[177] Ms Cao was in custody for the following periods:
(a)14 April 2016 to 22 April 2016 (released to bail);
(b)25 November 2017 to 27 November 2017 (released to bail);
(c)18 December 2017 to 20 December 2017 (released to bail);
(d)8 March 2018 to 21 May 2020 (released to parole);
(e)25 May 2021 to 17 July 2021 (released to parole); and
(f)from 15 May 2023.[178]
[175] She was only present in Australia for 3 months in 2006, on a temporary business visa.
[176] See Exhibit 1, p 387.
[177] See Exhibit 1, pp 387, 1113-1115.
[178] See Exhibit 1, p 584.
At some stage when the Applicant was on parole, between 2020-2022, Ms Cao commenced an import/export business dealing in camping equipment from China.[179] There is some written evidence, from the Applicant, which suggests that this business started in early 2023, when the Applicant was in China.[180] In any event, Ms Cao intends to resume that business if she is released into the Australian community.
[179] See Exhibit 1, p 438.
[180] See Exhibit 1, p 997 [21].
In custody, the Applicant has completed various vocational courses, including Certificates I and II in General Education, textiles, construction/forklift, and food/barista qualifications.[181] There were positive reports about her work ethic.
[181] See Exhibit 1, pp 1013-1016, 1019, 1120-1121.
The real ‘other tie’ of any significance is Ms Cao’s relationship with Mrs JC and her husband, two children, and their parents. Mrs JC and her husband, WD, operate a business in Australia, Fiji, Singapore, and Thailand and have stated an intention to move to Singapore in the future. Their parents will remain in Australia, and it seems that Mrs JC, her husband and two children intend to remain Australian residents (but be based in Singapore for the foreseeable future). The Tribunal was told that they had an extensive property portfolio in Western Australia and about Mrs JC’s commendable efforts in ensuring that the Applicant’s daughters have been cared for appropriately whilst Ms Cao has been in prison. Ms Cao met Mrs JC when they were neighbours at some stage between 2007 and 2009.[182] In closing submissions, the Minister sought that less weight be given to Mrs JC’s written statements in support of the Applicant because she was not available for cross-examination. However, her attendance, whether by video link or otherwise, had not been sought by the Respondent until this submission was made. In those circumstances, the Tribunal was not prepared to give that evidence no weight.[183] It, however, accepts that there are elements of Mrs JC’s statements[184] which give rise to questions and are, as counsel identified, ‘irreconcilable’. Unfortunately, these were not able to be addressed during the review.
[182] See Exhibit 1, pp 898, 1023 [4].
[183] See Re Tarrant v Australian Securities and Investments Commission (2013) 62 AAR 192, [79], [81]; Polizzi v Commissioner of Police (No 2) [2017] WASC 166, [85]-[87].
[184] See Exhibit 1, pp 898-899, 1023-1025.
The Minister accepted that it was open to the Tribunal to give this primary consideration weight in the Applicant’s favour given her lengthy residence and family connections.[185]
[185] See RSFIC, [52].
Whilst the Applicant also sought to make something of her ‘extremely limited ties’ in China,[186] this submission mischaracterised the evidence before the Tribunal, which established that the Applicant’s mother, two siblings, and their family remain in China (as well as a series of other extended relatives) and that she is in regular contact with them.[187] To the extent that there was some material suggestive of a strained relationship with the mother,[188] this is also somewhat inconsistent with earlier material, and with the Applicant’s more recent written material and oral evidence, including the apparently extant obligation to transfer financial support (albeit the Tribunal was told that this has lessened since the father’s demise).[189]
[186] See Reply, [5.65].
[187] See Exhibit 1, pp 82, 909.
[188] See e.g. Exhibit 1, pp 458, 958.
[189] See Exhibit 1, pp 387, 990.
For the above reasons, the Tribunal finds, on the evidence before it, that the Applicant has made little contribution to the Australian community and that there are limited social links with Australian citizens or permanent residents. Nevertheless, Ms Cao has three Australian-citizen children resident here and they each want their mother to remain in Australia. She also has the support of some prosocial Australian ties.
The Tribunal finds that this primary consideration, including the impact on the Applicant’s immediate family and the strength, nature and duration of the Applicant’s other ties to Australia, weighs moderately in favour of revocation.
Best interests of minor children in Australia
The Tribunal is required to consider the best interests of minor children in Australia that are affected by the decision.[190] That requirement is imposed by the terms of the Direction itself and s 499 of the Migration Act rather than the Convention on the Rights of the Child, signed 22 August 1990, [1991] ATS 4, (entered into force 16 January 1991) (CROC).[191]
[190] Direction, cls 8.4(1), 8.4(2).
[191] See Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [60], [142]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, [64]. See also Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128 regarding the validity of Direction 110 and this issue.
The Minister’s Departmental procedural instructions, however, indicate that this element of the Direction was drafted to be consistent with Art 3 of the CROC.[192]
[192] Character and security instructions, Section 501: The character test, visa refusal and visa cancellation (2 August 2024) (VM-1001); see also Basile v Minister for Immigration and Citizenship (2011) 193 FCR 329, [47].
The Tribunal notes that the terms of the Direction, and also the Tribunal’s powers and procedures, are also consistent with Art 12 of the CROC.
The Applicant relevantly argued that the CROC should ‘inform the Tribunal’s assessment of the best interests of the [Applicant’s] children’, particularly the ‘principle’ that ‘children should not be separated from their parents against their will, except where necessary for the child’s best interests’.[193]
[193] ASFIC, [4.87].
Article 9 of the CROC provides:
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given are opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
The proper construction of this Article was dealt with by the Full Court of the Federal Court in NRFX v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 582 (NRFX), at [52]-[75]. In summary, the Full Court held that:
[56] … Considering closely the text, it is possible to perceive two distinct conceptions of “separation at play in [Art] 9 – namely:
a. a narrower conception in Art 9(1), which … is limited to the separation of the child from the parents; and
b. a broader conception in Art 9(4), which includes separation by the “detention, imprisonment, exile deportation or death… of one or both parents” and thereby extends to (but does not concern exclusively) the separation of the parents from the child.
[57] The consequence of reading Art 9(1) and (4) in this way is that the former sub-article does not apply to the deportation of a parent while the latter, on its own terms, does. The obligation to be met by the State in the event of such a deportation is therefore to provide the information identified in Art 9(4); the State is not obliged to ensure that the deportation is necessary for the best interests of the child in accordance with Art 9(1).
(original emphasis)
For those reasons, on a proper interpretation of the CROC, the Applicant’s submission cannot be sustained.
The Tribunal notes that the Full Court in NRFX also referred to overseas appellate authority,[194] which was to the same effect, and that an extension of time in which to seek special leave to appeal from that judgment was refused by the High Court of Australia on the basis that it was not attended by sufficient doubt.[195]
[194] Naidike v Attorney General of Trinidad and Tobago [2005] 1 AC 538, 559 [74]; ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, 179 [25]; Chief Executive of the Ministry of Business, Innovation and Employment v Liu [2014] 2 NZLR 662, 669 [19]; See also Ye v Minister for Immigration [2009] 2 NZLR 596, [66]-[71], cited with approval by the Supreme Court of New Zealand in Ye v Minister for Immigration (2010) 1 NZLR 104, [24], and which includes references to separate Canadian authority.
[195] NRFX v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASL 112, [2].
By reason of the terms of the Direction, and Art 3 of the CROC (absent procedural fairness), the best interests of relevant minor children in Australia are of primary relevance to the exercise of the power to expel a non-citizen parent found in s 501 of the Migration Act. Such children are also generally to be given an opportunity to be heard about decisions of that kind affecting them (Art 12).[196] However, this does not mean that the Tribunal must always accord primacy to the interests of a relevant child over any other relevant primary considerations identified within the Direction, including consideration of whether it is necessary to expel the non-citizen parent in the interests of protecting the peace, order, and good government of the Commonwealth.[197]
[196] See also ART Act, ss 55, 74.
[197] Direction, cl 7; Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; See Baker v Minister for Immigration and Citizenship [2012] FCAFC 145, [56]; SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129, [39]; see also Lynch v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1128, [39].
As there are two relevant minor children in this application (MVL and JVH), the Tribunal is required to give their interests separate consideration to the extent that their interests may differ.[198] Clause 8.4(4) of the Direction outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision.
[198] Direction, cl 8.4(3).
The Tribunal has already summarised some of the evidence before it concerning both MVL and JVH in the context of the Strength, nature and duration of ties primary consideration. It was accepted by the Minister that the best interests of each child weighed in favour of revocation, and, in respect of JVH, powerfully so. Counsel poignantly acknowledged in closing submissions that this was the ‘most confronting issue’ before the Tribunal and that the Minster was cognisant of the practical effect of the potential physical separation of Ms Cao from her children and that it was not contended by the Minister that ‘a mother’s love is replaceable’. Counsel submitted that some of the Applicant’s submissions on this issue appeared to be divorced from the evidence before the Tribunal, and that they involved a conflation between the best interests of the children and the other consideration of the impediments to the Applicant’s removal in China. The Tribunal agrees.
MVL
In considering the best interest of MVL, the Tribunal has had regard to:
(a)The nature and duration of the mother-daughter relationship, including that there have been relatively lengthy absences from the age of nine caused by the Applicant’s imprisonment (set out above). However, Ms Cao has seen her children regularly whilst in prison and there is evidently a meaningful relationship between them, including what was described by Barone DCJ in March 2024 as ‘a very significant impact on their life as their mum’;[199]
(b)MVL is 16 years and nine months old. She is in Year 11. There are no court orders relating to parental access and care. The Tribunal is prepared to accept that there is a prospect that Ms Cao may play a positive parental role in the future, however the opportunity to influence, particularly in the formative years, could fairly be said to be somewhat limited.
(c)Ms Cao’s prior conduct has negatively impacted MVL, including triggering symptoms of distress, anxiety, and depression.[200] Potential recidivism by Ms Cao could have similar negative impact. However, MVL will be 18 years old prior to the completion of Ms Cao’s parole term (not that reaching the age of majority necessarily means that one does not need or desire their mother in their lives).
(d)MVL has described the thought of losing her mother as ‘unbearable’.[201] It is accepted that there is potential for ongoing contact by telephone and other remote means, and by travel to China (as has occurred in the past), however there is no substitute for physical presence on a regular basis.
(e)There are other persons fulfilling a parental role, particularly MVL’s father (albeit the evidence suggests that his involvement is somewhat limited) and her older brother. Mrs JC, her parents and the extended family (including JVH’s paternal grandparents) have also been playing a role. However, they clearly do not have any formal parental authority with respect to MVL.
(f)MVL is reaching a point of maturity where she can make decisions for herself, and the Tribunal gives weight to her views, including her desire that her mother’s permanent residency be restored.
[199] Exhibit 1, p 459. See also Exhibit 1, p 126.
[200] See Exhibit 1, p 128.
[201] Exhibit 1, p 126; see also Exhibit 1, p 107.
JVH
In considering the best interests of JVH, the Tribunal has had regard to:
(a)The nature and duration of the mother-daughter relationship, including that there have been lengthy absences from three years of age (with some of the offending pre-dating JVH’s birth and continuing in infancy until late 2016). However, as acknowledged at [108(a)] above, there is evidently a meaningful parental relationship between Ms Cao and JVH.[202]
(b)JVH is 10 years and eight months old. She is in Year 5. The Tribunal accepts that there is a prospect that Ms Cao may play a positive parental role in the future, depending on whether Ms Cao abstains from further illicit drug use and crime.
(c)JVH wrote to the District Court in 2023, indicating that without her mother she feels ‘scared and alone’.[203] She subsequently wrote to the delegate, indicating that she misses her mum and wants to have ‘sleepovers’ and ‘playdates’.[204]
(d)The Tribunal has some concerns that the Applicant’s methylamphetamine use potentially had a negative impact on JVH’s development (and might be the genesis of some of the concern’s expressed by others about JVH’s behaviour). Nevertheless, the Tribunal is prepared to accept that JVH listens to her mother and that there is no indication that Ms Cao in fact exposed her children directly to drug use (as opposed to the associated environment of it). Instead, the Applicant appears to have historically provided for her children despite her substance use and associated unlawful conduct.
(e)There are other persons fulfilling a parental role, particularly JVH’s paternal grandparents and her older brother (and, as with her sister, Mrs JC and her parents). There is evidence suggestive of rather limited involvement by JVH’s father (Mr XH), and of family violence potentially occurring in the family home in 2016. There are no court orders presently in place, and there is no evidence suggestive of risk of family violence being perpetrated by the Applicant.
(f)There is potential for ongoing contact by telephone and other remote means, and by travel to China (as has occurred in the past), however there is no substitute for physical presence on a regular basis and this would be preferable as JVH achieves various milestones, such as transitioning to high school.
[202] See Exhibit 1, pp 108-109, 127.
[203] See Exhibit 1, p 127.
[204] See Exhibit 1, p 109.
For the above reasons, the Tribunal finds that revocation would be in the best interests of both MVL and JVH. JVH’s interests are more pressing than MVL’s interests, given her younger age. Cumulatively, the best interests of relevant minor children weigh heavily in favour of revocation.
Expectations of the Australian Community
This primary consideration is a ‘kind of deeming provision’,[205] which requires the Tribunal to consider the Minister’s articulation of community expectations.[206] Clause 8.5(1) of the Direction provides that ‘the Australian community expects non-citizens to obey Australian laws while in Australia’. The Direction goes on to state that:[207]
[w]here 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 would not allow such a non-citizen to enter or remain in Australia.
[205] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76].
[206] Direction, cl 8.5(4).
[207] Direction, cl 8.5(1).
Clause 8.5(2) then adds to that first ‘norm’ and indicates that non-revocation may be appropriate in a particular case ‘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’. It specifies identified kinds of conduct, committed in Australia or elsewhere, as attracting that further expectation,[208] including ‘involvement or reasonably suspected involvement in …crimes that are of serious international concern’.[209] This term is not defined and separately appears in s 501(6)(ba)(iii) of the Migration Act. It should be given its ordinary meaning in context.
[208] Direction, cls 8.5(2)(a)-(f).
[209] Direction, cl 8.5(2)(e).

Relevantly, the Tribunal notes that:
(a)Australia is a signatory to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed 20 December 1988, [1993] ATS 4, (entered into force 14 February 1993) (UN Convention).[210]
[210] See also Single Convention on Narcotic Drugs, 1961, signed 30 March 1961, [1967] ATS 31, (entered into force 31 December 1967) (and Amendments thereafter); Convention on Psychotropic Substances 1971, signed 21 December 1971, [1982] ATS 14 (entered into force 17 August 1982)
(b)A ‘psychotropic substance’ is defined in Art 1(r) of the UN Convention to mean any substance, natural or synthetic, or natural material found in Schedules I, II, III and IV of the Convention on Psychotropic Substances 1971, signed 21 December 1971, [1982] ATS 14 (entered into force 17 August 1982) (Convention on Psychotropic Substances).
(c)Methamphetamine is a ‘psychotropic substance’ listed in Sch II to the Convention on Psychotropic Substances.[211]
[211] See Convention on Psychotropic Substances, Art 1 (e), Sch II Item 3.
(d)The recital to the UN Convention provides:
THE PARTIES TO THIS CONVENTION,
DEEPLY CONCERNED by the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society,
DEEPLY CONCERNED ALSO by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity,
RECOGNIZING the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States,
RECOGNIZING ALSO that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority,
AWARE that illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all levels,
DETERMINED to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing,
DESIRING to eliminate the root causes of the problem of abuse of narcotic drugs and psychotropic substances, including the illicit demand for such drugs and substances and the enormous profits derived from illicit traffic,
…
RECOGNIZING that eradication of illicit traffic is a collective responsibility of all States and that, to that end, co-ordinated action within the framework of international co-operation is necessary,
ACKNOWLEDGING the competence of the United Nations in the field of control of narcotic drugs and psychotropic substances and desirous that the international organs concerned with such control should be within the framework of that Organization,
REAFFIRMING the guiding principles of existing treaties in the field of narcotic drugs and psychotropic substances and the system of control which they embody,
RECOGNIZING the need to reinforce and supplement the measures provided in the Single Convention on Narcotic Drugs, 1961, that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, and the 1971 Convention on Psychotropic Substances, in order to counter the magnitude and extent of illicit traffic and its grave consequences,
RECOGNIZING ALSO the importance of strengthening and enhancing effective legal means for international co-operation in criminal matters for suppressing the international criminal activities of illicit traffic,
DESIRING to conclude a comprehensive, effective and operative international convention that is directed specifically against illicit traffic and that considers the various aspects of the problem as a whole, in particular those aspects not envisaged in the existing treaties in the field of narcotic drugs and psychotropic substances,
HEREBY AGREE as follows:
(e)Article 1(m) of the UN Convention defines the term ‘illicit traffic’ to mean the offences set out in Arts 3(1) and (2) of the Convention. This includes ‘the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the ... [Convention on Psychotropic Substances]’.
(f)Articles 21 and 22 of the Convention on Psychotropic Substances provides for the state parties to act against the illicit trafficking of such substances, including the making of penal provisions about it.
(g)In Australia, there are penal laws giving domestic effect to that international commitment on a state and federal level, including the Misuse of Drugs Act 1981 (WA) for which the Applicant has multiple convictions.[212] The Tribunal notes that, on a federal level, ‘traffic in a substance’ is defined in s 72.36 of the Criminal Code (Cth) in similar terms to the UN Convention definition quoted above.
[212] See also Criminal Code Act 1995 (Cth), ss 307.5, 307.10, 308.1, 308.2.
For those reasons, the Applicant’s evident involvement in the ‘illicit trafficking’ of methamphetamine is properly described as a crime that is ‘of serious international concern’ within the meaning of cl 8.5(2)(e) of the Direction.
The norms identified in the Direction ‘apply regardless of whether the [Applicant] poses a [measurable] risk of causing physical harm to the Australian community’.[213]
[213] Direction, cl 8.5(3).
The Tribunal is also specifically commanded to ‘proceed on the basis of the Government’s views as articulated’ in the Direction, ‘without independently assessing the community’s expectations in the particular case’.[214]
[214] Direction, cl 8.5(4).
The Tribunal notes that the Minister did not explicitly contend that any of the examples of the second norm in cl 8.5(2) of the Direction were engaged in this case.[215] However, the Tribunal respectfully does not consider that the applicability of this norm meaningfully adds anything to the first norm identified in cl 8.5(1). It would be different, if, for example, Ms Cao had been directly involved in the importation of illicit drugs into Australia (rather than their possession and distribution within Western Australia) or, in a more radical example, whether she had been involved in the commission of war crimes or crimes against humanity.
[215] See RSFIC, [58]; Whether that matters is an open question, see Cowgill v Minister for Immigration and Multicultural Affairs [2025] FCA 704, [74]-[75].
The Tribunal adopts the approach to this primary consideration identified by Justice Horan in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [50]-[59].[216]
[216] Cf ASFIC, [4.78]-[4.82];Reply, [5.59]-[5.61].
The Tribunal finds that this primary consideration weighs heavily against revocation and will weigh this against the other relevant considerations.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of its decision.[217] That is, the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power (including any decision under s 105 of the ART Act).
[217] Direction, cl 9.1(1). See also NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, [3], [9]-[10]; Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, [84], [88].
There are three major consequences of visa refusal or cancellation under s 501 and related provisions:
(a)
a prohibition, within the migration zone, on applying for other types of visas under

s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[218]
(b)refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and
(c)the possible application of periods of exclusion and special return criteria under s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person under s 195A.
[218] See also Migration Act s 46(1)(d).
These adverse consequences can each be avoided by a positive decision to revoke the cancellation decision, and it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[219]
[219] See Stoneley and Minister for Immigration and Multicultural Affairs [2025] FCA 143, [36].
When Ms Cao’s permanent resident visa was cancelled, she became an ‘unlawful non-citizen’.[220] That is, a non-citizen in the migration zone who did not hold a visa that is in effect.[221] This status conferred liability to be detained under s 189(1) of the Migration Act. Such administrative detention has yet to occur because the Applicant is separately imprisoned pursuant to a warrant of commitment.
[220] Migration Act s 15.
[221] See Migration Act ss 13-14.
Ms Cao is relevantly required to be detained under the Migration Act until she is either removed from Australia under s 198 or granted a visa (including having her visa restored to under s 501CA(4)).[222] Sections 198(1) and 198(2B) of the Migration Act relevantly provide for removal from Australia either at written request, or where there has been a mandatory cancellation and a subsequent decision made not to revoke that cancellation, respectively.
[222] Migration Act ss 196(1)(a), 196(1)(c), 196(4)-(5), 501C(6)-(7).
The duty to remove an unlawful non-citizen arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.[223] However, s 198 of the Migration Act does not require or authorise a non-citizen’s removal to a country if, during the course of a protection visa application, there has been a protection finding made for the person with respect to that country.[224]
[223] See Migration Act, s 197C(2).
[224] See Migration Act, s 197C(3).
Ms Cao has not made a protection visa application and specifically did not raise any of Australia’s non-refoulement obligations for consideration in this application.[225]
[225] See Closing submissions.
There is no reason to suppose that any required removal to China would not be practicable in the reasonably foreseeable future and Ms Cao has returned there relatively recently (in early 2023). However, it was accepted by the parties in closing submissions that a likely consequence of a decision to affirm the reviewable decision in this case would be that the Applicant would be excluded from Australia (and from the members of her Australian family, unless they travelled to her) into the foreseeable future, and that this would be a factor that could favour revocation.
The legal and other consequences of the Tribunal’s decision weigh in favour of revocation.
Extent of impediments if removed
The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to China, in establishing herself, and in maintaining basic living standards (in the context of what is generally available to other citizens in that country), taking into account the Applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical, and/or economic support available to her in China.[226]
[226] Direction, cl 9.2(1).
The Applicant is 54 years of age. Ms Cao testified that she is generally in good health, is ‘very fit’ and exercises daily and has quit smoking. She is medicated for anxiety and depression. This is confirmed by the recent Parole Review Report.[227] The Tribunal put the Applicant’s prison medical records to Ms Cao for comment during the hearing,[228] and she indicated that the other diagnoses listed in that medical record, such has hypertension and shoulder pain, are ‘not a big problem’ or have resolved with treatment.
[227] Exhibit 1, pp 575-576 [11].
[228] See Exhibit 1, pp 628ff.
It was appropriately conceded that there would not be any substantial language or cultural barriers to Ms Cao’s return to China, given her background.[229] The Applicant did, however, argue that she had been ‘absent for two decades’ in closing submissions. This was inconsistent with the evidence before the Tribunal indicating return travel in 2006, 2007, 2009, 2012 and 2023.[230]
[229] See ASFIC, [4.90].
[230] See Exhibit 1, p 142.
Similarly, it was accepted by the Applicant that she would have access to the social, medical and/or economic support available to Chinese citizens in China.[231] However, the primary thrust of the Applicant’s argument was that this support would be limited.
[231] See ASFIC, [4.90].
The Applicant’s mother, two brothers and their families remain in China. The Tribunal was told that one of those siblings is presently in prison in China for an unrelated assault. It was put that the relatives would be unable to provide Ms Cao with long-term accommodation.
In terms of medical and/or economic support available in China, it was accepted that China provides official welfare which includes medical and unemployment benefits.[232] However, it was fairly noted by counsel for the Applicant that the quality and availability of those services was reportedly dependent upon the financial situation of the local government authority in various parts of China.[233]
[232] See DFAT Report, [2.13]. See also Exhibit 1, p 1053.
[233] See DFAT Report, [2.13]-[2.14].
The DFAT Report notes that ‘in-country sources’ had advised them in 2023 that ‘it would be possible for a person without family support to subsist, depending on their individual circumstances, opportunity and intersectional risks (age, health, ability to work and level of education).’[234] Similarly, DFAT advise that public healthcare in China is considered to be comparable to international standards but that there is variable quality and access between urban and regional areas.[235] DFAT observe that there has also been recent national investment in treatment for people with depression and anxiety.[236]
[234] DFAT Report, [2.15].
[235] DFAT Report, [2.38].
[236] See DFAT Report, [2.42]-[2.43].
The Tribunal notes that the Applicant is Han Chinese and told the Tribunal that she has both a national identity card and household registration (Hukou). Internal relocation is common within China for people with that profile.[237] Ms Cao previously worked in China and abroad in several countries. Her family resident in China live in the prefecture-level city Yueyang, in Hunan Province.[238] The Tribunal notes that Ms Cao has also recently obtained a series of vocational qualifications in prison, including considerably improving her written English competency. Moreover, the Tribunal was told that the Applicant speaks, reads, and writes both Mandarin and Cantonese.
[237] See DFAT Report, [5.25]-[5.26].
[238] See Exhibit 1, pp 1070-1071.
The Tribunal is not satisfied, on the evidence before it, that the Applicant would not be able re-establish herself and maintain basic living standards in China. Rather, the evidence suggests the opposite. However, as the Applicant submits,[239] the potential separation from her children and loss of her Australian-support network would present significant emotional and practical impediments to Ms Cao re-establishing residence in China. Ms Cao’s mental health and struggles with addiction would also likely feature in those impediments.
[239] See ASFIC, [4.90]-[4.91].
The Tribunal notes that the chances of Ms Cao being ‘re-tried’ in China for her drug crimes in Australia is ‘close to zero’,[240] and that she returned to China without incident in early 2023.
[240] DFAT Report, [5.30]-[5.31].
The Tribunal considers that the Applicant will be personally and deeply affected by permanent removal to China. This potential emotional and psychological hardship can be withstood, and the Applicant has previously adjusted to life in foreign places, including living and working in multiple countries and the confines of prison, with little issue. However, this potential adjustment should not be easily dismissed.
The Tribunal finds that the Applicant could likely re-establish herself in China and maintain basic living standards. Nevertheless, removal is a potentially devastating consequence, with very real impediments to living a similar standard of living to what is available here and to any return to Australia, including associated negative impacts on her immediate family (particularly her minor children). This weighs in favour of revocation.
Impediments to relocation by the daughters
The Applicant raised various impediments to the relocation of her children to China.[241] The Tribunal accepts that there would likely be several impediments to the daughters relocating to China (particularly JVH, who reportedly has limited Chinese language competency). However, this is not a mandatory relevant consideration for the purposes of the Tribunal’s decision on this application. The purpose of considering their best interests as a primary consideration operates on the assumption that they are within the jurisdiction and will remain here in the reasonably foreseeable future. The Tribunal has considered the hardship occasioned by the potential separation of their mother in determining whether there is another reason to revoke the second cancellation decision. Moreover, the prospect of their relocation would need to be a decision for the Applicant and their respective fathers to consider and make in the future, which Ms Cao freely acknowledged during the hearing.
[241] See ASFIC, [4.92]-[4.95].
Impact on Australian business interests
The Applicant raised her plans to continue with an import/export business in Australia as a potential factor in support of revocation.[242] The Tribunal does not agree that this prospect should be given any weight. There was no evidence before the Tribunal of the former business having in fact commenced (as opposed to the acquisition of stock by the Applicant whilst she was in China in 2023) or that it, in fact, contributed to the Australian economy in any meaningful way, including with respect to the payment of taxes. Moreover, this future business interest does not relate to the delivery of a major project or an important service in Australia.[243] For those reasons, the Tribunal considers that this other consideration is neutral (if it could be properly said to arise at all).
[242] ASFIC, [4.101]-[4.102].
[243] See Direction, cl 9.3(1).
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is ‘another reason’ why the mandatory cancellation decision should be revoked.[244]
[244] See CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [27]-[28]; VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160, [8].
Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is ‘generally to be given greater weight than other primary considerations’, and that, otherwise, the relevant ‘primary considerations should generally be given greater weight than the [relevant] other considerations’. This guidance is consistent with the principle articulated at cl 5.2(2), that ‘the safety of the Australian community is the highest priority of the Australian government’.

The Tribunal has no good reason to depart from that policy position,[245] and does not consider that, in their application in this case, those policy positions will produce an unjust result. Further, the Tribunal notes that the above policy guidance does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[246]
[245] See Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276, [25]-[26].
[246] See Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545.
The Tribunal has found that the Applicant poses an unacceptable risk of re-offending. Her previous conduct was undoubtedly very serious and is of a kind where its risk of repetition is unacceptable. The protection and expectations of the Australian community primary considerations weigh powerfully against revocation. Against this, it was clear that an adverse decision would detrimentally impact the Applicant’s three children, particularly her minor daughters. The best interests of those minor children are a strong factor in favour of revocation. There are also established ties in Australia. However, as a non-citizen, Ms Cao’s permission to remain in this country can be cancelled. That happened by command of Parliament. The Tribunal, after considering each of the relevant considerations identified within the Direction, is not satisfied that there is ‘another reason’ to revoke that cancellation decision.
In summary, the Tribunal has considered the relevant considerations in this matter and determined that there is not ‘another reason’ to revoke the cancellation. Those factors which weigh against revocation, particularly the considerations of the protection of the Australian community and the expectations of the Australian community, outweigh those factors that are in favour of revocation, including the impact of an adverse decision on the Applicant’s immediate family and her other ties to Australia, the best interests of her two minor daughters, the consequences of an adverse decision and the impediments to removal. The correct decision is therefore to affirm the decision under review.
DECISION
The Tribunal affirms the reviewable decision.
149.

I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

...................[SGD].....................................................
Associate

Dated: 19 September 2025

Date of hearing: 1, 2, 4 and 9 September 2025

Solicitor for the Applicant: Ms Q B Chen, Tang Law Pty Ltd

Solicitor for the Respondent: Mr L Roosendaal, Sparke Helmore Lawyers

Date of hearing:	1, 2, 4 and 9 September 2025
Solicitor for the Applicant:	Ms Q B Chen, Tang Law Pty Ltd
Solicitor for the Respondent:	Mr L Roosendaal, Sparke Helmore Lawyers