Federal Court of Australia

Puohotaua v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 141

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent to be agreed, or failing agreement, to be assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    I have had the benefit of considering the reasons of Downes J in draft. As explained by her Honour, the appellant’s responses to the impugned questions did not tend to incriminate him in the sense explained in the authorities. I respectfully agree with the analysis on that topic.

2    Any unfairness in the proceeding before the Tribunal could only have arisen by virtue of the appellant responding to questions on an incorrect assumption that he was compelled to respond.

3    In circumstances where there was no proper basis to claim the privilege, the appellant was, as a matter of law, compelled to respond. It follows that no substantive unfairness arose.

4    To my mind, that conclusion is sufficient to dispose of the appeal, without addressing arguments concerning materiality of error. In circumstances where the privilege against self-incrimination could not reasonably be asserted, any failure by the Tribunal to advise the appellant of his right to claim the privilege could not constitute an error.

5    I do not consider it necessary to consider the matters argued on the Minister’s notice of contention, whether through the lens of materiality or otherwise.

6    It is also unnecessary to determine whether the primary judge erred in concluding that there was sufficient material before the Tribunal to support its findings at [64] without reference to the appellant’s responses to the impugned questions. It is enough to conclude that the responses formed a part of the material before the Tribunal in circumstances that did not give rise to substantive unfairness, unfairness being the essential complaint made on the application for judicial review at first instance.

7    On that more confined basis, I join in the order dismissing the appeal.

Associate:

Dated:    17 October 2025

DOWNES J:

Synopsis

8    This is an appeal from the orders of a single judge of this Court made on 20 December 2024: Puohotaua v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1491 (PJ). By those orders, the primary judge dismissed the application for judicial review brought by Mr Tea Anaru Puohotaua (the appellant) of the decision of the former Administrative Appeals Tribunal (now the Administrative Review Tribunal, the second respondent) to affirm the decision of a delegate of the then Minister for Immigration, Citizenship and Multicultural Affairs (the first respondent) not to revoke the cancellation of the appellant’s Special Category (Temporary) (Class TY) (subclass 444) visa.

9    The sole issue for determination on this appeal is whether the primary judge erred in finding that the decision of the Tribunal was not affected by jurisdictional error resulting from what the appellant alleges was a denial of procedural fairness. The denial of procedural fairness is said to arise from the Tribunal’s failure to inform the appellant at the relevant Tribunal hearing of his right to claim the privilege against self-incrimination before answering questions which had a tendency to incriminate him.

10    It was common ground at first instance and on appeal that the Tribunal did not warn the appellant about his right to invoke the privilege against self-incrimination at any stage during that hearing; what is in issue is whether that failure resulted in a denial of procedural fairness, and whether any such error was material so as to be a jurisdictional error.

11    By his Notice of Appeal accepted for filing on 24 December 2024, the appellant raises a single ground of appeal which reflects the sole ground of review pressed at first instance:

1.     The learned primary judge erred in finding that the Administrative Appeals Tribunal did not fall into jurisdictional error by failing to afford the Appellant procedural fairness.

                Particulars

…

(B)     By his sole ground of review advanced before the Court below, the Appellant alleged that the Tribunal had fallen into jurisdictional error by denying him procedural fairness, in that the Tribunal did not warn him about his right to invoke the privilege against self-incrimination at any stage during its hearing of his application for review. It was not disputed that the Tribunal did not provide a warning.

(C)     The learned primary judge found that, with respect to relevant answers provided by the Appellant in response to questioning about alleged assaults in 2019 and 2022, and relating [sic] his drug use, that he was not exposed to a danger of prosecution (such that the Appellant was not denied procedural fairness by the Tribunal). The learned primary judge erred in so finding.

(D)     Further, the learned primary judge erred in also concluding that the Tribunal’s error was not material.

(Emphasis omitted.)

12    In the Notice of Appeal, the appellant seeks the following orders:

1.     The appeal be allowed.

2.    Orders 1 and 2 of the learned primary judge’s orders made on 20 December 2024 be set aside, and in their place the following orders be made:

(a)     A writ of certiorari be issued to quash the decision of the Tribunal made on 16 July 2024.

(b)     A writ of mandamus be issued directed to the Tribunal requiring it to reconsider and determine the Appellant’s application for review according to law.

(c)     The Tribunal take all necessary steps to have its decision dated 16 July 2024 removed from publication online.

(d)     The Respondents be prohibited from having regard to the transcript of proceedings and audio recordings related to the decision of 16 July 2024 in the Appellant’s remittal proceeding.

(e)     The First Respondent pay the Appellant’s costs.

13    The Minister, by a Notice of Contention filed on 31 January 2025, contended that the PJ was correct but should also be affirmed on grounds other than those relied on by the primary judge. In essence, the Minister contended that the evidence before the primary judge was insufficient to infer that there was a realistic possibility that the appellant would have asserted the privilege against self-incrimination had that privilege been adequately explained to him in the Tribunal proceedings and thus, the appellant did not discharge his onus in establishing that any error was material.

14    The second respondent lodged a Submitting Notice on 24 January 2025 and took no active part in the proceedings. It submits to any order the Court may make in the proceeding but wishes to be heard on the question of costs.

15    For the reasons that follow, the appeal must be dismissed, with costs to follow the event.

Background

16    The appellant was born on 1 September 1998. He is a citizen of New Zealand who moved to Australia in 2012 to live with his father, holding the visa: PJ [2].

17    On 8 August 2023, the appellant was convicted in the Supreme Court of Queensland and sentenced to multiple periods of imprisonment for 12 months or more for a range of offences, including the following:

Dangerous operation of a vehicle (domestic violence offence) (on 29/05/2021);

Choking suffocation (domestic relationship) (on 12/6/2021);

Assaults occasioning bodily harm (domestic violence) (on 29/05/2021, and between 11/06/2021 and 14/06/2021);

Common assault (domestic violence offence) (on or about 29/05/2021 and 12/06/2021);

Deprivation of liberty (domestic violence offence) (on or about 29/05/2021 and 12/06/2021);

Trespass (domestic violence offence) (on or about 29/05/2021);

Robbery with actual violence (on 12/01/2022);

Trafficking in dangerous drugs (between 02/10/2021 and 11/01/2022);

Supplying Schedule 1 dangerous drugs (on or about 07/01/2021); and

Possession of a Schedule 1 dangerous drug (on 13/01/2022).

18    On 1 September 2023, the appellant’s visa was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth): PJ [2].

19    On 4 September 2023, pursuant to s 501CA of the Migration Act, the appellant made representations seeking the revocation of the mandatory cancellation decision.

20    On 6 May 2024, a delegate of the Minister decided not to revoke the mandatory cancellation of the appellant’s visa, as the delegate was neither satisfied that the appellant passed the character test nor that there was “another reason” for revocation, pursuant to s 501CA(4)(b) of the Migration Act.

21    On 8 May 2024, the appellant then filed an application for merits review of the non-revocation decision of the delegate in the Tribunal, pursuant to s 500 of the Migration Act.

22    The Minister lodged material to be considered in the Tribunal hearing, which included material obtained under summons from the Queensland Police Service (QPS) and Queensland Corrective Services (QCS). The QPS material included a Solicitor’s office report (QPS Report) which recorded a complaint of domestic violence made against the appellant by his former partner on 17 July 2019 concerning events alleged to have occurred between 30 June 2019 and 17 July 2019. The appellant was not prosecuted in relation to these allegations, but following a further complaint made on 2 September 2019, a protection order was made in favour of that complainant on 9 October 2019, by consent, and without admissions. The QCS material included records of the appellant’s alleged involvement in assaults while he was on remand within Arthur Gorrie Correctional Centre on around 1 March, 14 June and 4 August 2022. The appellant was not prosecuted in relation to these events.

23    On 15 and 16 July 2024, the Tribunal heard the appellant’s review application. The appellant did not have legal representation when appearing before the Tribunal.

24    During the Tribunal hearing, questions were asked of the appellant in the witness box by the Tribunal member and the Minister’s legal representative, which he answered. There are four topics which the appellant contends fall within the ambit of the privilege against self-incrimination:

(1)    assaults which he was alleged to have committed on 1 March, 14 June and 4 August 2022 whilst he was on remand at the Correctional Centre (especially on 1 March);

(2)    a complaint of domestic violence made against him on 17 July 2019 concerning events alleged to have occurred between 30 June 2019 and 17 July 2019;

(3)    alleged illicit drug use by him and involvement in drug trafficking, without limiting questions to those offences for which the appellant had been charged, convicted and sentenced; and

(4)    alleged illicit drug use by him at the time he engaged in other offending (including while driving) in circumstances where he had been convicted of that other offending but not of any crime related to drug possession or use or driving under the influence of those drugs.

25    On 16 July 2024, the Tribunal delivered ex tempore reasons affirming the delegate’s decision not to revoke the cancellation of the appellant’s visa. Written reasons were delivered on 24 July 2024. In making its decision, the Tribunal was required to, and did, have regard to “Ministerial Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 110).

26    On 17 August 2024, the appellant filed an application for judicial review of the decision in this Court. An amended version of the application was filed on 26 November 2024.

27    The appellant’s key submission before the primary judge was that as a result of the failure to warn him about his right to invoke the privilege against self-incrimination, the Tribunal made findings in respect of the alleged assaults and alleged drug use which were subsumed in the Tribunal’s overall evaluative assessment in relation to Primary Considerations 1 (Protection of the Australian Community) and 5 (Expectations of the Australian Community) required by Direction 110: PJ [5].

28    On 20 December 2024, the primary judge dismissed the application for judicial review: PJ [43]. Her Honour considered that two questions arose: first, whether answering the impugned questions would have exposed the appellant to a danger of prosecution such that the Tribunal was required to warn him of that danger, and secondly, if that be the case, whether the Tribunal’s failure to warn the appellant of his right to refuse to answer those questions on the basis of the privilege was a material error: PJ [7]–[10].

29    As to the first question which concerned the alleged domestic violence events in 2019, the primary judge considered that the appellant’s responses to the relevant questions did not amount to admissions, but in any case it was “tolerably clear that no further action was going to be taken against [the appellant]”, as the QPS Report noted that the relationship with the complainant was over and so “the need for a domestic violence protection order is not required or justified”: PJ [17]–[18]. Her Honour considered a retrospective prosecution in relation to these events to be “most unlikely”, even if the appellant’s responses amounted to admissions, given that a protection order was subsequently made by consent in relation to other events, but the complainant had not since made any other complaints about the appellant, and the appellant was subsequently punished in the criminal law system for domestic violence offences committed in 2021: PJ [21].

30    In relation to the alleged assault in the Correctional Centre on 1 March 2022, the primary judge concluded that “[i]t cannot be said that there is any likelihood, or risk, of any steps being taken to prosecute [the appellant]” on the basis of anything he said before the Tribunal: PJ [27]. In particular, the primary judge had regard to a QCS report in evidence which stated that the incidents were “closed” after being referred to and returned from the Corrective Services Investigation Unit (CSIU) with a recommendation for internal management. The primary judge considered that it appeared likely that the appellant was “dealt with for a breach of discipline” in relation to the incident of 1 March 2022, and that it can be comfortably inferred that any steps to prosecute him in relation to this incident would have been taken in 2022. Her Honour also noted that the QCS report does not suggest that the appellant denied involvement in the fight, such that an admission before the Tribunal two years later could not take the position further than what was observable to the reporting officer and investigated by the CSIU: PJ [26].

31    In relation to the alleged drug use, the primary judge concluded that it did not follow from anything the appellant said before the Tribunal that he had admitted to the possession of any quantity of drug for personal use that would incriminate him or, at least, there would be no greater risk of prosecution for such an offence than would stem from the admissions he had already made about his drug use in his personal statement in support of revocation of the cancellation decision and in earlier unsolicited admissions in evidence to the Tribunal: PJ [31].

32    As to materiality, the primary judge concluded that even if it were assumed that the appellant would have refused to answer the questions asked by the Tribunal, had he been appropriately warned of his rights, the absence of his answers could not have produced a different result because his admissions added nothing to the material already before the Tribunal: PJ [38]. The primary judge was satisfied that the Tribunal’s conclusions were supported by ample evidence before it, absent any of the answers to the impugned questions, and so there is no realistic possibility that the Tribunal could have reached a different decision had it warned the appellant about his rights in relation to the privilege: PJ [41]–[42].

Legal Framework

33    An appeal to this Court is by way of rehearing, meaning that the appellant must demonstrate legal, factual or discretionary error by the primary judge: see Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, McHugh, Gummow and Hayne JJ).

34    At first instance, the onus was on the appellant to establish that the Tribunal made a jurisdictional error, being an error that results in an administrative decision lacking any legal force (or being “invalid”): LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24]–[25] (Kiefel CJ, Gageler and Keane JJ).

35    In most cases an error will only be jurisdictional if it was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred: LPDT at [7] (Beech-Jones J agreeing at [38]). The standard of “reasonable conjecture” required in assessing the counterfactual scenario and whether the decision could, not would, have been different absent the error has been described as “undemanding” or “not onerous”: Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ), [47] (Gageler J); MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

36    The rules of procedural fairness apply in connection with the conduct of a review by the Tribunal under s 500 of the Migration Act: see s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

37    The requirements of procedural fairness are moulded by the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [25]–[26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).

38    In Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [37], Allsop CJ accepted that a tribunal may deny an unrepresented party procedural fairness if its questioning strays into matters about which the unrepresented party could invoke the privilege against self-incrimination without warning the person. See also Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080 at [59]–[61] (McDonald J); Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653 at [50]–[51] (Meagher J); Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802 at [35] (Thawley J).

39    The privilege against self-incrimination is a fundamental common law right: see Sorby v the Commonwealth of Australia (1983) 152 CLR 281 at 294 (Gibbs CJ), 309 (Mason, Wilson and Dawson JJ), 311 (Murphy J); X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [104] (Hayne and Bell JJ) and [158]–[160] (Kiefel J); Meneses v Directed Electronics OE Pty Ltd (2019) 273 FCR 638; [2019] FCAFC 190 at [85]–[87] (Moshinsky, Wheelahan and Abraham JJ). The Full Court in Meneses at [85] explained it as a right not to answer questions or produce documents or things where there would be a tendency to expose the individual to a criminal charge, citing Griffin v Pantzer (2004) 137 FCR 209; [2004] FCAFC 113 at [43] (Allsop J, Ryan and Heerey JJ agreeing).

40    The privilege against self-incrimination was at the time of the Tribunal hearing reflected in s 62 of the AAT Act as an exception to the express statutory obligation to answer questions:

62 Refusal to be sworn or to answer questions

…

(3)     A person commits an offence if:

(a)     the person appears as a witness before the Tribunal; and

(b)     the member presiding at the proceeding has required the person to answer a question; and

(c)     the person fails to answer the question.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(4)     Subsection (3) does not apply if answering the question might tend to incriminate the person.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

41    As it then was, s 371(2)(c) of the Migration Act provided in similar terms that it is an offence for a witness to fail to answer a question of the Tribunal for the purposes of a review under Pt 5 of the Migration Act, which encompassed the appellant’s review application. Section 371(3) provided an exception to this offence where “answering the question might tend to incriminate the person”.

42    In practice, the privilege is raised by a person who objects to responding to a question asked if answering the question might tend to incriminate them, at which point it then falls upon the Tribunal to determine whether answering the question might tend to incriminate the person or whether the applicant should be compelled to answer the question. It is common ground that the manner of that determination was explained by the High Court in Deputy Commissioner of Taxation v Shi (2021) 273 CLR 235; [2021] HCA 22 at [34] (Gordon J, Kiefel CJ, Gageler and Gleeson JJ agreeing):

In assessing whether there are reasonable grounds for the objection, the court must assess whether there is a “real and appreciable risk” of prosecution if the relevant information is disclosed. The gist of the privilege is that disclosure of the information “would tend to expose the claimant to the apprehended consequence”. The “reasonable grounds” inquiry requires the court to assess, having regard to the circumstances of the case and the nature of the information which the relevant person is required to disclose, whether there are reasonable grounds to apprehend danger to them from being compelled to disclose the information. This requires consideration of whether information may tend to prove the commission of an offence, as well as the likelihood, or risk, of steps being taken to prosecute that offence. There must be some material upon which the court can be satisfied of these matters...

(Footnotes and emphasis omitted.)

43    There is some conceptual uncertainty as to whether the reasonable grounds analysis—being whether the unrepresented person giving evidence was in fact entitled to invoke the privilege against self-incrimination (requiring application of the test in Shi)—is best undertaken by the court hearing an application for judicial review on these grounds under (a) the framework of whether there was a practical injustice and denial of procedural fairness to the judicial review applicant and thus any error at all, or (b) the framework of whether any error on procedural unfairness grounds was material and thus jurisdictional.

44    In Bainbridge at [67]–[68], McDonald J observed that:

The precise relationship between denial of procedural fairness and materiality in a case like the present is somewhat unclear. In Nathanson, Kiefel CJ, Keane and Gleeson JJ said (at 103 [33]):

There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration … .

(Citation omitted.)

However, the kind of denial of procedural fairness that has been held to arise when a person is not informed of their privilege against self-incrimination is somewhat atypical. In such a case, the person has been deprived of an informed opportunity to exercise their right to decline to answer certain questions. The opportunity denied is not an opportunity to present evidence or make submissions on an issue that required consideration; if anything, the person is likely to have given additional evidence that they might not have given had they been made aware of the privilege (and, in some cases, this may give rise to a need to address that additional evidence in additional submissions). On one view, the denial of that opportunity itself should be characterised as amounting to a denial of procedural fairness, with the question of the materiality of that denial to the decision under review being a distinct question. On the other hand, although there is a broader sense in which it can be said that a person has been treated unfairly if they have been denied the practical opportunity to exercise their legal rights, it might be thought that there will only be a denial of procedural fairness in relation to the decision under review if it is shown that the denial of that right could possibly have affected the decision. On the latter view, the question of whether there has been a denial of procedural fairness at all may effectively be the same as the question of whether what occurred was “material”. It is unnecessary to resolve this question because, on either approach, the second ground of judicial review can succeed only if the failure of the Tribunal to inform Mr Bainbridge of his privilege against self-incrimination could have made a difference to the Tribunal’s decision.

(Emphasis in original.)

45    His Honour further stated at [109]:

The failure of the Tribunal to inform [the applicant] about [the privilege against self-incrimination] in connection with his drug use will have amounted to both a denial of procedural fairness and a jurisdictional error if it was material to the Tribunal’s decision. It is unnecessary to decide whether it would have amounted to a denial of procedural fairness even if it was not material to the Tribunal’s decision and therefore did not constitute jurisdictional error…

46    I respectfully agree with and will adopt the same approach in this case being that which is aligned to the second view expressed in Bainbridge at [68]. That is, I will determine whether the failure by the Tribunal to inform the appellant about the privilege against self-incrimination was material to the Tribunal’s decision as this will also determine whether there has been a denial of procedural fairness in relation to that decision and a jurisdictional error.

Consideration

Whether the appellant could have invoked the privilege against self-incrimination

47    As set out above, the appellant identifies four areas of questioning in respect of which he contends the privilege against self-incrimination could have been invoked by him successfully (with the third and fourth area overlapping as they both relate to the appellant’s drug use).

Alleged assault in the Correctional Centre

48    Before the primary judge, the appellant confined his case to an assault alleged to have occurred at the Correctional Centre on 1 March 2022: PJ [11], [26], [27].

49    On appeal, the appellant made submissions that refer to the questioning in the Tribunal relating to three alleged assaults in 2022, including on 1 March 2022. The Minister objected to this, submitting that the appellant should not be permitted to depart from how he chose to confine the conduct of his case in the proceeding below. I agree.

50    As to the alleged assault on 1 March 2022, the relevant exchanges during the Tribunal hearing began with the following questions put to the appellant by the Senior Member:

Okay. There’s a report from prison dated 1 March 2022 - - -?---Yes.

- - - that you were fighting with another prisoner and you were told to stop and you stopped. Do you remember that?---Yes. Yes, I do remember.

…

There’s a file note from a few months later, June 2022. You and another prisoner were fighting on the A-side oval. You were told to stop fighting and you both said that you were just playing around and tackling each other. What was that?---Yes. So that was – we were playing a touch footy on the oval - - -

51    Counsel for the appellant accepts that this question and others in the course of the hearing did not necessarily reach the point of inviting incriminating answers because a fight might or might not constitute an assault, but submits that it is “teetering on the edge” of questioning that might expose the appellant to give incriminatory responses. Further exchanges relevant to these events began with the Minister’s representative examining the appellant as extracted above, and then continuing as follows with the Senior Member interjecting, relating to the alleged “proper fight” on 1 March 2022 and the “play fight” on 14 June 2022:

Okay. I suppose I’m trying to understand the difference between what you would call a proper fight and a play fight?---Well, so we were just - - - In the fight - - -?---In the fight there was obviously – we were fighting, and then we got told to stop. And then the play fight we were playing footy on the oval and one of the boys tackled me and we were just rolling on the ground, like just wrestling, sort of just mucking around. But they obviously thought we were taking it serious. But both of us admitted to saying that it was just a – it was just a muck around.

SENIOR MEMBER: No one was trying to hurt anybody?---Yes. No one was trying to hurt anybody, whereas the other one - - -

Yes. You were throwing punches?---There was – yes. Exactly right.

Yes?---That’s the difference.

MS TAYLOR: And in the other fight did anyone get hurt?---Which one?

The proper fight?---I guess both of us. Yes. I guess both of us did in a sense. Like, nothing major but.

So - - -?--- Like no – went to hospital and neither of us needed to go to like emergency, like to the nurse.

Well, would you agree that a fight can be serious even if you don’t have to go to hospital?---Yes. Yes. It was serious, but I admit like no one got seriously injured. I should’ve said it probably better. I said it like – but, yes. I do. I do agree with that.

…

But, I suppose going back to my question, and I think it – you know, just a yes or no answer would be fine – based on what you’ve said today and the evidence it’s true that being in prison didn’t stop you from engaging in physical violence?---Well, if you put it like that I guess no, it didn’t. That happened at the very start. Let’s say that happened when I first went in there. It’s almost two and a bit years ago now, and it’s - ever since then there wasn’t another altercation since while I’ve been in jail where I physically assaulted somebody.

But you would still accept that while you were in prison you did assault somebody?---Yes. Yes.

52    Reading this final question in context, although it does not specify a date or time of the alleged assault, it seems clear that it is a reference to the alleged 1 March 2022 incident, as the appellant characterised it. The appellant submits that this is plainly an admission of a criminal offence made in the absence of an adequate warning, which verified from the appellant’s own mouth what was alleged in the QPS Report for the incident “at around 1735 hours on 1st march 2022” which is described there as an “assault between [another prisoner] and [the appellant]”.

53    The primary judge concluded at PJ [26] that an “admission before the tribunal that he assaulted someone in prison, cannot realistically be said to be an admission of an offence different from what was observable to the reporting officer and investigated by the CSIU”. I understand her Honour to be saying is that it cannot be said, looking at the material before the Tribunal and all the circumstances, that there is any real and appreciable risk of prosecution. Her Honour’s conclusion with respect to the alleged assault in the Correctional Centre must be read in light of her immediately preceding comment that an admission “cannot realistically be said to be” an admission different from what was already observable and investigated at the time of the incident: see PJ [26]. Relatedly, the Minister submits that the precise measure or degree of risk does not need to be ascertained, but to establish the entitlement to the privilege the risk must be of a nature “which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance”: citing Chardon v Bradley [2017] QCA 314 at [34] (Morrison JA, Fraser and McMurdo JJA agreeing at [1], [42]).

54    The appellant submits that it cannot be known what the authorities with prosecutorial discretion might do with admissions that were required to be given in response to the questions asked, and in that respect a distinction should be drawn between the interest which QCS had at the time of the incident in disciplining him under the Corrective Services Act 2006 (Qld) and whether, as a result of the questions asked at the Tribunal, he faces a risk of prosecution by the police. That distinction appears unimportant, however, because the CSIU was a branch of the QPS, albeit one attached to the QCS, so the investigation that had already been commenced and closed was by the police; a decision was already made then not to prosecute. However, the appellant emphasises that the difference now is that the questions asked of the appellant at the Tribunal about the 1 March 2022 incident invited, and the appellant gave, specific, direct admissions, which go beyond the material previously available to the prosecutorial authorities and which could defeat potential defences that might have obstructed prosecution relying on observable behaviour alone. The appellant submits that it would be a mistake to try and divine with some degree of certainty what in fact prosecutorial authorities might do with such admissions.

55    The appellant also submits that there must be error in the primary judge’s finding that “[i]t cannot be said that there is any likelihood, or risk, of any steps being taken to prosecute [the appellant] in respect of his conduct on 1 March 2022 on the basis of anything he said before the Tribunal”: PJ [27]. He submits that, without more, the only conclusion that was open was that there was some risk of prosecution and that risk was real.

56    In response, the Minister advances two reasons why there was no real and appreciable risk of prosecution for the assault the appellant allegedly committed on 1 March 2022: first, because the investigating authorities in the circumstances would be unlikely to prosecute, and secondly, because further prosecution is statute barred by virtue of s 115(2) of the Corrective Services Act, which states: “A prisoner must not be charged with an offence because of an act or omission if the prisoner has been punished for the act or omission as a breach of discipline”.

57    As to the second reason, the Minister submits that the evidence before the Tribunal indicated that the incident report was marked with the status “Closed”. The incident was referred to the CSIU, and three days after the investigation was initiated, it was returned from CSIU for closure with a recommendation for “internal management”, which the Minister submits was, in substance, disciplinary procedure. However, there is no evidence about, and there is no way of knowing, what a recommendation for “internal management” means and there is no evidence of actual punishment or disciplinary action against the appellant having been taken. Accordingly, I am not satisfied that s 115(2) of the Corrective Services Act applies.

58    As to the first reason, if on the material that QCS had before it at the relevant time—when eyewitnesses’ memories were fresh, the incident report records that no injuries were suffered by the other person involved and the consequences were more relevant—the prosecutorial authorities did not proceed to discipline or punish the appellant, I consider that there is no realistic basis to conclude that a real and appreciable risk of prosecution arose two years later simply because the appellant admitted before the Tribunal to “assaulting someone” in prison.

59    For these reasons, I am satisfied that any risk of prosecution arising from information that was required to be given in response to the questions asked about the alleged assault in the Correctional Centre would, as a matter of reasonable conjecture, be tenuous. This is especially having regard to the time that has passed without any steps taken since the CSIU investigation was closed on 7 March 2022, the fact that the appellant is now in immigration detention and is no longer at the Correctional Centre, and that, as found by the primary judge at PJ [26], any admission by the appellant that he “assaulted somebody in prison” seems unlikely to take the position further in any material sense than what was already investigated and recommended for closure by the CSIU, including that the reporting officer noted that the prisoners were “observed to be fighting”.

60    It follows that the information required by the questions asked of the appellant could not provide reasonable grounds for apprehending a real and appreciable risk of prosecution in relation to the alleged assault at the Correctional Centre on 1 March 2022.

Alleged domestic violence incidents

61    The impugned questions in the Tribunal hearing about alleged domestic violence related to events on 30 June 2019 and 17 July 2019. The relevant questioning by the Senior Member included the following:

I’m going to ask you about your offending now. Sorry, I’m just trying to find my place. I’m looking at police notes. I’m not sure if this one was actually prosecuted, but there’s a report. Police report that on 30 June 2019, you were with – who were you dating at that time?...

… You went to visit family and had an argument in the car on the way. When you left to go home – so when the person, the aggrieved, went to go home, you told the person to ‘Shut the fuck up,’ numerous times in the car. Upon arriving home, you told her to get out and get in the house. She went into the house, and you pushed her twice. I’m just putting that to you. Do you remember any of that happening?---Yes, it’s just – is this – what year is this?

2019. It doesn’t look like there was any conviction in relation to that, so if you don’t remember it, if you don’t think it happened, you can say that?---I don’t – I don’t remember it myself, sorry.

Okay?---(Indistinct) why they wouldn’t. That must have happened, but – yes. I don’t (indistinct).

62    The Senior Member continued asking questions about allegations made against the appellant by the same complainant concerning events on 3 July 2019 and 17 July 2019:

Yes. There’s a couple notes. I think again, it looks like nothing came of this. No further police action came of this. But the notes say that on 3 July 2019, after an argument the respondent, which is you, was asking the aggrieved questions...

On 17 of July, so that would be about two weeks later, you and her were at home and she said that she had numerous appointments through the morning. You got angry that you were going to be alone for five hours. You said she was shady, and you didn’t know where she really was, and she said she’d approved the appointments. You turned and threw a spatula, which hit her knee. She took most of her things and went to leave. The police thought that there was no reason that you would come into contact once the property had been collected and divided, so there was no need for a domestic violence protection order.

She said that you’d been in a relationship for the last year and had lived together for that time. Do you remember any of that?---I don’t remember that first one with the – Chris was there. But I do the second one. (Indistinct.)

Tell me, who was that with?---That was with [the complainant].

…

So on the 17 July, she went to the Cleveland Police Station to tell the police what you’d done. She said, since March, which was three months previous, and their return from holiday in New Zealand, you had been more aggressive. She said, in New Zealand, there was a domestic violence incident in which you were arrested in order to do an anger management course, and that, once you’d returned to Australia, you’d been accusing her of cheating with one particular person and you’d been checking her phone. Do you remember any of that stuff?---Yes. Yes, I do.

So what’s going on? You’ve been with her for a while. You go to New Zealand, and suddenly there’s domestic violence?---Yes. So that happened back in New Zealand.

…

Yes?---And I completed that, and I come back over here, and we did start a relationship again, and I had found out when I was in New Zealand that she was seeing someone else, and things were just (audio malfunction). I fully – I was quite aggressive in – towards her because of

Was it jealousy?---Yes. Definitely jealousy.

Okay?---So, yes, when I did come back from New Zealand, I was a lot more aggressive (indistinct) our relationship (indistinct).

63    The same events of 30 June 2019 and 17 July 2019 were the topic of questions put by the Minister’s representative during cross-examination of the appellant in connection with the domestic violence protection order made by consent against the appellant in 2019:

- - - and the order was made on 9 October 2019, and do you agree that you’re – that you’re the respondent in that order?---Yes.

… Okay. Can you explain the circumstances under which this order came into effect?---So like we spoke about before, I received – this come under effect due to the pushing and aggression thing and the spatula.

…

Did you lose your temper often when you were in that relationship?---Yes. At that point, yes. Yes.

You agree that you pushed your ex-partner?---Yes.

You agree that you swore at your ex-partner as well?---Yes.

You agree that you pushed her to the couch and you threw a spatula at her?---Yes.

64    The appellant submits that his responses made in the course of the Tribunal hearing were admissions that could increase the risk of prosecution. The appellant disputed the primary judge’s findings at PJ [14] and [17] that it is not clear that any admissions of common assault, threats of violence and actual violence were in fact made, and that at most his responses amounted to admissions of recollecting the circumstances of the incident on 17 July 2019 and of being “aggressive” towards his then partner because of jealousy, falling short of an admission of the commission of any offence.

65    The appellant submits to the contrary on the basis that his responses amounted to specific and direct admissions from the alleged perpetrator in circumstances where he and the complainant were the only witnesses to the incident, going beyond what the prosecutorial authorities had available to them previously. In my view, this submission obfuscates the required analysis, which is whether the questions asked of the appellant required the disclosure of information that would have a tendency to incriminate.

66    Insofar as the appellant’s submission is made with respect to the questions asked by the Senior Member—“Do you remember any of that happening?”, “who was that with?”, “Do you remember any of that stuff?”—there is very little to suggest that the information required by those questions could be apprehended to create any real and appreciable risk of prosecution; as the appellant acknowledged in oral submissions, the questions about the appellant’s recollection were “Delphic” and ambiguous.

67    On the other hand, the questions asked by the Minister’s representative in cross-examination, although not referring to specific dates, required answers in the nature of admissions that are referable to the allegations. The appellant submits that there is no basis for concluding what the authorities with prosecutorial discretion might do as a result of this new evidence of direct admissions, where there is no record of a decision having been made not to prosecute in relation to evidence that might have been elicited under examination in the Tribunal proceeding.

68    The Minister submits that the appellant did not face any real risk of prosecution in relation to the incidents of 30 June 2019 and 17 July 2019, and that examining the appellant directly about them in a manner which may have caused him to confirm as correct what was alleged in the QPS Report would not change that. In particular, the Minister relies on the QPS Report which stated that the “need for a domestic violence protection order is not required or justified” and the clearance status is marked “Finalised”. The Minister submits that, in circumstances where the appellant was the subject of other scrutiny from investigatory authorities after this time, there was ample opportunity to investigate or prosecute the appellant in relation to this incident, but there was no evidence that he was ever even interviewed about it; rather, the Minister submits that the QPS Report indicated the police did not have a desire to take further action in relation to these allegations. This is compared with a separate incident which the police deemed did require further action, a protection order was sought and made by consent, and without admission, on 19 October 2019 protecting the same complainant. Further, the appellant was investigated, prosecuted and convicted for domestic violence offences against another victim between May and June 2021. The Minister thus submits that if the appellant faced any risk of prosecution in relation to the conduct described in the QPS Report, it could be expected that steps would have been taken long before the appellant gave evidence at the Tribunal in 2024.

69    In the circumstances, I consider that there is no error in the findings of the primary judge at PJ [18] and [21] that it was “tolerably clear that no further action was going to be taken against [the appellant]” and that “[t]here was no material before the Tribunal to suggest that any such steps were likely”. In particular, there was no evidence before the Tribunal suggesting any investigatory steps had been taken by police in relation to the 30 June 2019 or 17 July 2019 incidents in the five years that followed before the Tribunal hearing. By contrast, steps were taken in relation to other allegations of domestic violence by the appellant: a protection order was sought and granted on 19 October 2019 following a fresh complaint on 2 September 2019 by the same complainant (but, again, no criminal prosecution pursued as far as the evidence reveals); and the appellant was investigated, prosecuted and convicted for criminal domestic violence offences against another complainant between May and June 2021. In those circumstances, it was open to the primary judge to conclude that a retrospective prosecution would appear most unlikely (PJ [21]), even taking the appellant’s case at its highest.

70    Accordingly, the information required by the questions asked of the appellant could not provide reasonable grounds for apprehending a real and appreciable risk of prosecution in relation to the alleged domestic violence incidents on 30 June 2019 and 17 July 2019.

Alleged drug use (in general and in connection with other offences)

71    During the Tribunal hearing, the following exchange occurred:

In 29 May 2021 – this is one of the domestic violence offences that you were convicted of in the Supreme Court?---Yes.

… You dragged her from the friend’s car into your own car, causing bruising to her arm, and drove away… You drove dangerously around the streets for about two hours, and you didn’t stop at – you were not stopping at red lights or intersections to prevent her from safely leaving the vehicle... So you’ve admitted to all that?---Yes.

…

The next one was June, so the following month. Again, you were violent to her…

You went to her car and joined her in the car. You drove away despite being asked not to by her. During the drive, she started hyperventilating and kicked her legs, causing the windscreen to break. You ran away from the car – no, sorry, she ran away from the car and you chased her. Was she your ex at that point - - -?---No.

…

Were you affected by drugs at that time?---Yes.

Which drugs?---Well, yes, just cocaine and - - -

What about the first one in May? Were you affected by drugs then when you were driving around?---Cocaine as well.

…

Apart from what you were doing to your partner, did you think that it was a bad idea to drive around when you’re coked up?---Like, in that point in time, where my headspace was at, I probably wasn’t even thinking about what was right and wrong in that moment.

72    As to the appellant’s drug use whilst he was driving in May and June 2021, the appellant submits that his admission may be used in connection with prosecution for the offence of driving a motor vehicle while under the influence of a drug pursuant to s 79(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (Transport Act). However, the prosecution of this offence was statute barred by s 123V(4) of the Transport Act by the time of the Tribunal hearing. Accordingly, there was no real and appreciable risk of prosecution arising if the information was disclosed.

73    As to the questions asked and answered which related to drug use in general at other times, the following exchanges with the Senior Member are also relevant:

That’s all right. What did you learn in your drug and alcohol course?--- Just, like, understanding what drugs does to your, like, brain… and you wouldn’t even realise why you’re abusing it because you use it for a certain reason when you are taking it…what I realised was, like, I thought I was sweet, but really, it’s doing all this stuff into your brain...

And cocaine? Was that the big one for you?---That was – so probably from – when did I get – I got started 2022. Cocaine from probably 2021 to 2022 was a very, very bad effect on me.

74    The following exchange occurred with the Minister’s representative:

You said you were selling drugs as to supplement your – or to feed your habit. Were you generating income or profit from selling drugs as well?---Maybe a little bit, but not much. It was more going all back towards feeding my drug addiction. Any money I could get was going towards that.

75    Answers were also given to the following questions put by the Senior Member:

So how are you going to make sure that, you know, given that cocaine does make you feel good and that it pushes the bad thoughts away, how are you going to not – how are you going to make sure you don’t resort to cocaine again?--- … and then I got into the drugs and then getting off the drugs and getting back into that healthy lifestyle…

…

I just want to check what the psychologist said. He said that you started using marijuana and ecstasy in 2015 to fit in with your mates. Is that right?---Yes. I wasn’t really – so the ecstasy was probably more – wasn’t an everyday occurrence with it. That would’ve probably been, like, at, like, schoolies or something and I had said that, so - - -

Right. Okay. So not so much with the ecstasy?---But weed was – weed was a very, very big thing.

…

You used cocaine recreationally from around 2017 and then worse when strain appeared in your relationship in mid-2021?---Yes.

76    The appellant submits that at the relevant times of the events in connection with his admissions relating to drug use in general, it was an offence in Queensland for a person to unlawfully possess a dangerous drug (including ecstasy, marijuana and cocaine), pursuant to s 9(1) of the Drugs Misuse Act 1986 (Qld). The appellant submits that while he had been found guilty and was sentenced for offences against s 9(1) twice—the first on 26 November 2019 by the Magistrates’ Court of Queensland for an offence that occurred on 16 October 2019, the second on 8 August 2023 in the Supreme Court of Queensland for an offence that occurred on 13 January 2022—he had not been found guilty of such an offence in relation to events in 2021 or prior to 2019. Accordingly, the appellant submits that, when he was asked about and made admissions of his illicit drug use at the times other than those relevant to his convictions, these direct admissions go further than the material previously available to authorities with prosecutorial discretion and thus create an increased risk of prosecution in relation to unlawful possession of “a dangerous drug” at those points in time.

77    While admissions that a person used an illicit substance could tend to prove that the person had, at some point, possessed that substance, thus contravening s 9(1) of the Drugs Misuse Act, such admissions by the appellant in the Tribunal hearing placed him in no greater jeopardy of prosecution in circumstances where he had already made prior admissions about his drug use, which admissions related to the same time periods. These include admissions:

(a)    in the appellant’s “personal circumstances form” submitted to the Department of Home Affairs, which stated:“[a]t the point of my offending i [sic] was addict [sic] to drugs which lead [sic] me to a path of crime”;

(b)    in information provided by the appellant and incorporated in a report by a forensic psychologist and clinical neuropsychologist filed in criminal proceedings in the Supreme Court of Queensland such as that the appellant “started using marijuana and ecstasy in 2015, to fit in with his mates…” and “started using cocaine recreationally from around 2017, and worse when strain appeared in his relationship in mid-2021”.

all of which were recorded by Ryan J (Supreme Court of Queensland) in her Honour’s sentencing remarks.

78    On that basis, the questioning as to the appellant’s drug use at the Tribunal hearing could only have elicited answers which did not add anything to the body of evidence already available to any prosecutorial authority and which evidence was before the Tribunal.

79    Accordingly, the information required by the questions asked of the appellant could not provide reasonable grounds for apprehending a real and appreciable risk of prosecution in relation to his drug use, including in connection with driving a motor vehicle while under the influence of a drug.

Conclusion

80    For these reasons, I am satisfied that even if the appellant had been warned about his right to invoke the privilege and had objected to the impugned questions, the Tribunal properly exercising its authority would have in any event required him to answer the questions. It follows that the failure by the Tribunal to inform the appellant of the privilege was not material to its decision. As a result, there was no denial of procedural fairness and no jurisdictional error by the Tribunal.

Notice of Contention

81    By the Notice of Contention, the Minister contends that the appellant failed to discharge his onus to establish any denial of procedural fairness was material because the evidence before the primary judge did not support the conclusion, as a matter of reasonable conjecture, that the appellant may have availed himself of the privilege against self-incrimination if an appropriate warning had been given. The Minister submits that, in circumstances such as the present case where there is evidence before the Tribunal to show that the appellant had some level of awareness of the substance of the privilege against self-incrimination, there arises an evidential onus on the judicial review applicant at first instance to put on evidence which explains both their understanding (or lack thereof) of the privilege and what they might have done had they been appropriately warned about it.

82    In response, the appellant submits that it can be inferred that he was unaware of the “metes and bounds of the rights that underpin the privilege” notwithstanding that no evidence was adduced.

83    In this case, there was evidence before the Tribunal that indicated that the appellant had some awareness of the privilege against self-incrimination. This included material in which the appellant was either informed, or demonstrated awareness, of his “right to silence”, such as instances in which he exercised his right to remain silent as recorded in police documentation. For example, a court brief prepared by the QPS regarding events on 5 and 27 April 2015 states that when the appellant was apprehended by police exiting a vehicle whilst he was not the holder of a driver licence, the appellant “decline to be interview [sic]”. In a further example, related to alleged breaches of domestic violence protection orders on 17 May 2016, the court brief records that when apprehended by police at the “job address”, the appellant was “reluctant to talk to Police about the disturbance incident”, and later when he was arrested and taken to the police station, “he was given his rights and cautions and was subsequently offered to participate in an electronically recorded interview to which he agreed to be interviewed”.

84    During the hearing, there was this exchange between the Minister’s representative and the appellant:

I should probably say you do have a right not to self-incriminate. So – but if I can ask you, when you say one of them was a proper fight what do 25 you mean by that?---Well, it’s not incriminating myself. Like we obviously – it’s in the documents where it says that we had a fight and then when we got told to stop we got told to stop, and so that’s what I done. I shouldn’t have said a real fight. We had a fight, and then the other one was a play fight.

85    Notably, the appellant did not ask what was meant by a “right not to self-incriminate” and he observed (correctly) that “it’s not incriminating myself”. The appellant also answered a later question after being informed by the Minister’s representative that he had a “right not to self-incriminate”. These matters tell against the inference which the appellant presses.

86    In Bainbridge, McDonald J stated at [122]–[123]:

Further observations about proof of facts necessary to establish materiality in this context

It may well be that the failure of the Tribunal to inform an unrepresented party about their privilege against self-incrimination will only amount to a denial of procedural fairness (or a material denial of procedural fairness) if the person did not, in fact, have an adequate awareness or understanding of the privilege at the time when they were questioned. If the person was already aware of, and adequately understood, their rights at the time when they appeared before the Tribunal, there would seem to be no practical injustice arising from the failure of the Tribunal to explain them. It should, of course, be borne in mind that the reality may often involve some nuance: even if a person has a general awareness that a privilege against self-incrimination exists under the law of Australia, it does not follow that they will necessarily call that general awareness to mind in context of a tribunal hearing, or appreciate that they are entitled to decline to answer questions about specific topics under oath.

It is the applicant in judicial review proceedings who bears the onus of establishing the facts necessary to demonstrate jurisdictional error (including breach of the rules of procedural fairness): MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at 524 [39] (Keifel CJ, Gageler, Keane and Gleeson JJ); LPDT at 615 [10]-[12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). It may be, therefore, that it will usually be incumbent on a person in the position of Mr Bainbridge to adduce evidence in judicial review proceedings sufficient to establish that he was not aware of his rights or the nature of the privilege against self-incrimination at the relevant point in time, or at least that he did not make an advertent decision to give evidence that might incriminate him with an appreciation that he was not required to do so. Mr Bainbridge did not lead any evidence of that kind in the present proceedings.

87    In response to the Notice of Contention, the appellant relied on the statements in Nathanson at [1]–[2] (Kiefel, Keane and Gleeson JJ, Gageler J agreeing at [59]) and [83]–[86] (Gordon J) that he was not required to go into evidence “to articulate a specific course of action which could have realistically changed the result”. However, in light of the observations by McDonald J in Bainbridge, which have force, the statement in Nathanson is not apposite to consideration of whether a judicial review applicant in the position of the appellant has demonstrated a material denial of procedural fairness in circumstances where (a) they complain that they were not informed of the privilege by the Tribunal (b) there is evidence which suggests that they were already aware of the privilege (c) the circumstances indicate that, notwithstanding that awareness, they did not seek to invoke the privilege.

88    Having regard to the evidence before the Tribunal in this case and the manner in which he responded to questions in the Tribunal, the appellant bore the evidential onus at first instance to establish his awareness (or lack of awareness) of the privilege against self-incrimination and what he might have done had he been informed of the privilege.

89    As no evidence was adduced by the appellant below, I infer that had any such evidence been adduced, it would not have assisted the appellant. This has the consequence that the appellant failed to discharge his onus to establish that any denial of procedural fairness was material because the evidence before the primary judge did not support the conclusion, as a matter of reasonable conjecture, that the appellant may have availed himself of the privilege against self-incrimination if an appropriate warning had been given.

90    For these reasons, I would uphold the Minister’s Notice of Contention, and dismiss the appeal for that additional reason.

Conclusion and disposition

91    For these reasons, the appeal must be dismissed, with costs to follow the event.

Associate:

Dated:    17 October 2025

O’SULLIVAN J:

92    I have had the benefit of considering the draft reasons of Downes J and agree the appeal should be dismissed for the reasons given by her Honour.

93    It is for the same reasons as given by Downes J that I would uphold the Minister’s Notice of Contention.

Associate:

Dated:    17 October 2025