Federal Court of Australia

Mao v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 153

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s informal application for the Court to receive further evidence on appeal be dismissed.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, such costs to be determined on a lump sum basis.

4.    Within 21 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

5.    In the absence of any agreement:

(a)    within a further 14 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant, Ms Shanshan Mao, who was born in China and is a citizen of New Zealand, appeals from a judgment of a judge of this Court, dismissing an application for judicial review of a decision of what was then the Administrative Appeals Tribunal (the Tribunal).

2    The background to the appeal may be briefly outlined as follows. In January 2014, the appellant and her family migrated from New Zealand to Australia. While in Australia, the appellant held a Special Category (Class TY) (Subclass 444) visa (the visa).

3    In 2015, the appellant (who was working as a loan manager with the Australia and New Zealand Banking Group Limited (ANZ Bank)), her husband (Mr Shaojing Niu) and a co-offender (Mr Tuo Dong) commenced a criminal enterprise involving the lodging of multiple bank loan applications to secure funding for property investment and development projects. False claims were made about Mr Niu’s employment, assets and liabilities. A corporate entity was established through which some property transactions passed.

4    The fraud was discovered by a bank investigator, following which the appellant’s employment with the ANZ Bank was terminated.

5    In July 2021, the appellant pleaded guilty in the County Court of Victoria to eight counts of obtaining a financial advantage by deception. In March 2022, the appellant was convicted of those offences. The County Court found that the total financial advantage obtained was around $9 million, which was derived by “using outright lies, deliberate omissions and fraudulent documents”. The appellant was sentenced to three years’ imprisonment.

6    On 18 July 2022, the appellant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). The appellant sought revocation of the cancellation decision.

7    On 17 July 2023, a delegate of the first respondent (the Minister) decided not to revoke the cancellation decision (the non-revocation decision) and provided a statement of reasons for the non-revocation decision.

8    The appellant applied to the Tribunal for review of the non-revocation decision.

9    On 11 September 2023, the appellant was released on parole and taken into immigration detention. She has since been deported to New Zealand, where she currently resides.

10    On 26 and 27 September 2023, a hearing before the Tribunal took place. The appellant was not legally represented at that hearing.

11    On 9 October 2023, the Tribunal decided to affirm the non-revocation decision.

12    The appellant applied to this Court for judicial review of the Tribunal’s decision.

13    On 1 April 2025, the primary judge dismissed the application for judicial review: Mao v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 289.

14    The appellant appeals to the Full Court from the judgment of the primary judge. In her notice of appeal, the appellant relies on four grounds, some of which comprise several paragraphs raising discrete points. Although the matters raised on appeal broadly correspond with those raised before the primary judge, the numbering of the grounds and the order in which they appear are different from the grounds relied on at first instance. Broadly, the grounds relate to the Tribunal’s treatment of the appellant’s risk of reoffending and the evidence relating to that issue.

15    As part of her appeal grounds, the appellant challenges the primary judge’s rejection of the tender of two documents, namely:

(a)    an email from the appellant’s New Zealand probation officer dated 10 September 2024 (Supplementary Appeal Book (SAB) pp 61-63) (the Probation Officer Email); and

(b)    the Parole Manual published by the Adult Parole Board of Victoria in March 2017 (SAB pp 64-102) (the 2017 Parole Manual).

16    At the hearing of the appeal, the appellant made an informal application for the Court to receive further evidence on appeal, namely the Parole Manual published by the Adult Parole Board of Victoria in June 2020 (SAB pp 103-147) (the 2020 Parole Manual). No objection was taken to the application being made informally rather than in accordance with r 36.57 of the Federal Court Rules 2011. We heard submissions on that application and indicated that we would make a decision on the application in our judgment.

17    For the reasons that follow, we have concluded that:

(a)    no error is shown in the primary judge’s refusal to admit the Probation Officer Email and the 2017 Parole Manual;

(b)    the application for the Court to receive further evidence on appeal should be dismissed; and

(c)    the appeal should be dismissed.

The Tribunal’s reasons

18    The Tribunal set out the background facts at [10]-[21] of its reasons.

19    The Tribunal identified the issue to be determined at [30] of its reasons. The issue was whether there was “another reason” to revoke the cancellation decision: see s 501CA(4)(b)(ii) of the Migration Act. At [31] of its reasons, the Tribunal set out a passage from the judgment of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 (Plaintiff M1/2021). At [32]-[38], the Tribunal outlined Direction 99, being a ministerial direction made under s 499(1) of the Act.

20    At [39]-[84], the Tribunal described and discussed the evidence in the proceeding before it. The appellant gave evidence during the hearing. Her evidence included that the other co-offender (Mr Dong) gave Mr Niu the idea for the criminal enterprise (at [51]). The appellant also submitted that she was “in denial and trapped in the situation … I thought I’d sign and let him [Mr Niu] do what he wants” (at [51]). She referred to certain stressful events in her life in 2015 and cultural pressure to assist Mr Niu without question. The Tribunal stated at [52]-[53]:

52.    The Applicant agreed she was represented by senior counsel at her criminal proceeding and by another barrister when appealing her sentence but claimed she did not raise cultural issues and pressures because she and Mr Niu were represented by the same barrister. …

53.    The Applicant said the narrative she presented to the Tribunal at this proceeding is ‘true and correct, even if it appears contradictory to [her] earlier claims’.

21    One of the witnesses called by the appellant was Dr Marietta Martinovic, an Associate Professor in the School of Global, Urban and Social Studies at RMIT University (Dr Martinovic or A/Prof Martinovic). The documentary evidence included two letters from Dr Martinovic, dated 28 August 2023 and 21 September 2023. The Tribunal referred to the evidence of Dr Martinovic at [80]-[82] of its reasons:

80.    Associate Professor (“A/Prof”) Martinovic adopted her two letters as true and correct. She stated that her correspondence with the Applicant is in an official capacity on behalf of RMIT and relates to the ‘Think Tank Program’ she runs at DPFC [the Dame Phyllis Frost Centre]. This consists of fortnightly sessions of two hours each, which is the predominant context for her engagement with the Applicant between February 2023 and when she left prison in September 2023. Recently the Applicant asked A/Prof Martinovic for a supportive statement and assistance to locate a psychologist for offence-specific rehabilitation. A/Prof Martinovic said she did both and psychologist Ms Wallis ‘volunteered to take on Ms Mao’. She said the Applicant was unable to do offence-specific rehabilitation in custody because ‘there is no financial specific counselling – full stop – it just doesn’t exist’. A/Prof Martinovic said she works with organisations to provide this support for people ‘engaged in white collar crime’.

81.    A/Prof Martinovic said the Applicant provided her with a copy of the Minister’s submissions, so she is aware of the crimes committed. In response to questions from Ms Roeger [the lawyer representing the Minister], A/Prof Martinovic agreed she has no qualifications in psychology or psychiatry. She also confirmed that she has no experience on the Adult Parole Board and had not seen any of the documents relevant to the Board’s decision regarding the Applicant. A/Prof Martinovic stated the Adult Parole Board undertakes a ‘complex risk assessment process’ and while she was not ‘privy to the [Applicant’s] risk assessment’, she consulted the Parole Board website which ‘lays out the considerations’. A/Prof Martinovic opined: ‘If they are of the belief they’ll reoffend, there’s absolutely no way they would release a person like that’. When challenged by Ms Roeger that some risk can be managed with parole conditions, A/Prof Martinovic insisted ‘there’s a significantly low risk’ because the ‘Parole Board does not make risky decisions…they don’t just dish it out’.

82.    It was put to A/Prof Martinovic by Ms Roeger that given her limited contact with the Applicant, she is not well placed to provide risk assessment. A/Prof Martinovic said she had ‘done a lot of work in this area’ and claimed that ‘the nature of [the Applicant’s] offending is not a high-risk category’. She has done some work in corrections and believes ‘you don’t need to be [a psychologist or psychiatrist] to predict reoffending’. In relation to the Applicant having offended despite being in a stable, high-paying job with other protective factors, A/Prof Martinovic opined: ‘That often happens – it’s not an anomaly to the norm from a criminological point of view’. When asked if she appeared in this proceeding as an expert or a lay witness advocating for the Applicant, A/Prof Martinovic said she did not know how to answer that question but relies on her expertise and referred to appearances in other proceedings as an expert.

(Footnote omitted.)

22    The Tribunal considered the primary considerations referred to in Direction 99 (the Direction) at [85]-[160]. These considerations were:

(a)    protection of the Australian community from criminal or other serious conduct (considered by the Tribunal at [85]-[119]);

(b)    family violence committed by the non-citizen (which the Tribunal stated was not enlivened);

(c)    the strength, nature and duration of ties to Australia (considered by the Tribunal at [121]-[135]);

(d)    the best interests of minor children in Australia (considered by the Tribunal at [136]-[153]); and

(e)    the expectations of the Australian community (considered by the Tribunal at [154]-[160]).

23    In the section of the Tribunal’s reasons dealing with (a) above, under a subheading dealing with the nature and seriousness of the offending, the Tribunal stated at [94]:

94.    The Applicant claimed in oral evidence she had not previously disclosed all the contextual circumstances relevant to her offending, despite being represented by senior counsel in her criminal proceeding, another barrister on appeal, and a solicitor in the present matter until late August 2023. The Tribunal places little weight on the new narrative advanced because a plea of guilty constitutes admission to and acceptance of all elements of the charges a person is convicted of [fn: Maxwell v R (1996) 184 CLR 501, [19]]. This includes that she knew the representations made to obtain financial advantage were false or probably false, and she intended these to be acted upon. Even if the Applicant chose to look away or ignore the fraudulent nature of the documents being presented because of cultural mores or stressors, this does not diminish her culpability. Nor do her purportedly repeated objections to Mr Niu. If this occurred, it evinces the Applicant’s understanding of the illegal nature of their activities, which was nevertheless followed by continuing participation.

(Some footnotes omitted.)

24    The Tribunal also dealt with the risk to the Australian community should the appellant commit further offences or engage in other serious conduct. The Tribunal stated at [98] that the Direction required the Tribunal to assess the risk posed to the Australian community if the appellant reoffended, taking into consideration the nature of any harm and its probability. The Tribunal referred to case law on this issue, including the judgment of Mortimer J (as her Honour then was) in Murphy v Minister for Home Affairs [2018] FCA 1924 at [37]. The Tribunal stated at [99] that the appellant’s criminal history in Australia related exclusively to dishonesty offences, and that any repeat of her past conduct would expose the Australian community to a risk of financial harm and/or damage the integrity of Australia’s banking system.

25    At [101], the Tribunal noted that, in her most recent statement, the appellant had raised pressure from Mr Niu and cultural factors. In that paragraph, the Tribunal set out an extract from the appellant’s evidence in which she had raised those matters. Further evidence about this was referred to at [102].

26    The Tribunal referred at [104] to some of the evidence relating to rehabilitation:

104.    In terms of rehabilitation, the Court [i.e. the sentencing court] concluded that the Applicant has ‘very good prospects of rehabilitation’. Her previous lawyer referred to her ‘progress in self-rehabilitation’ and that any ‘future reoffending is highly unlikely’. In response to the Respondent’s claim that she has not undertaken offence-specific rehabilitation, the Applicant agrees, claiming ‘there are none’. She refers to recent assistance from A/Prof Martinovic by putting her in touch with clinical psychologist Ms Amanda Wallis, with whom she intends holding ‘regular sessions’ if released. On 21 September 2023, proximate to the commencement of the hearing, the Applicant lodged a letter from Ms Wallis, addressed ‘To Whom it May Concern’. Ms Wallis states she is ‘happy to work with this client in the future’. The letter does not disclose what this ‘work’ may entail or for what purpose.

(Footnotes omitted.)

27    At [106], the Tribunal stated that, in terms of recidivism risk, “there is no expert evidence from a suitably qualified person such as a psychologist or psychiatrist”. The Tribunal referred to the appellant’s contention that her risk of offending is “so low as to be negligible” and could be “safely disregarded”. The Tribunal noted that support for this was drawn from counsellors at WestCASA and Mortgage Stress Victoria, Dr Martinovic, a kitchen supervisor at the Dame Phyllis Frost Centre (DPFC), and an employee from the Department of Justice who wrote a supportive reference. This was a reference to a letter from Linda Moore, a Disability and Complex Needs Practitioner at the Department of Justice and Community Safety, dated 21 August 2023 (Appeal Book (AB) pp 538-539) (the DoJ Letter). The Tribunal referred to a submission by the appellant that the Minister had overlooked “cultural, familial and gender contexts” of her offending, past “psychological trigger points” and incorrectly assumed that greed motivated her crimes.

28    The Tribunal’s reasoning at [107]-[109] is relevant to several appeal grounds:

107.    The Applicant invokes several protective factors including the interests of her children and employment in Mr Dirani’s café / bakery. In reply submissions dated 21 September 2023 she also refers to parole supervision until January 2025 and having an awareness ‘that any future offending would almost certainly … [lead to her] … returning to jail and deportation thereafter’. Most protective factors invoked, however, are comparable to those of the past when the Applicant had stable accommodation and employment, was in a healthy financial situation, and responsible for four children. Her crimes also commenced when she was a relatively new arrival to Australia, and it is inconceivable she was unaware that committing crimes risked her visa status. Her offending persisted for over two years despite awareness that her conduct was criminal.

108.    The Applicant’s personal circumstances point to considerable pressures if released in Australia. This includes because Mr Niu has been deported and extensive assets from the criminal enterprise have been recovered by authorities. The nature of her offending likely precludes employment in financial institutions. Her desire to become a baker or pastry chef are aspirational and Mr Dirani only offers a trial.

109.    The Tribunal rejects the Applicant’s re-casting of her involvement in the criminal enterprise and prefers the Court [i.e. the sentencing court] findings. She was legally represented by counsel in her criminal matter, appeal, and by a solicitor in this proceeding until quite recently. Only now, years after her offending, does she raise a defence bordering on coercion despite pleading guilty. It is impermissible for the Tribunal to impugn convictions on their essential factual basis [fn: … HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J)]. Aspects of the Applicant’s evidence came across as blame-shifting and diminish the persuasiveness of her claims about insight, acceptance of responsibility, and rehabilitation.

(Some footnotes omitted.)

29    Further, the Tribunal’s reasons at [112]-[119] are relevant to several grounds of appeal:

112.    The Applicant did not adduce expert evidence about her recidivism risk, which would have been relevant [fn: Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, [72] (Mortimer J)]. Most of the courses undertaken while imprisoned are vocational in nature and centre on employment prospects rather than offence-specific rehabilitation. The Tribunal accepts the Applicant was constrained in her ability to access offence-specific rehabilitation in custodial settings because of availability. Even though Ms Wallis does not refer to what will be addressed in any future counselling relationship, it is accepted these sessions may assist the Applicant in addressing her insight and unmet rehabilitative needs. Ms Wallis is yet to even meet the Applicant, however, so any beneficial effect is aspirational. Moreover, decisions should not be delayed for rehabilitation to be undertaken.

113.    The Tribunal does not accept the Applicant’s contention that a counsellor from WestCASA, or social worker from Mortgage Stress Victoria, or kitchen supervisor at DPFC, or A/Prof Martinovic, or a Department of Justice employee are ‘experienced professional witnesses’ qualified to assess recidivism risk. For example, Ms Rachel Tobias of Mortgage Stress Victoria stated in a letter dated 19 July 2023: ‘It is my professional opinion that Shanshan is at low risk of recidivism’. Ms Tobias is a social worker and does not appear to hold any qualifications relevant to making an expert opinion about risk. Ms Tobias refers to the Applicant as her ‘client’ and much of what is submitted constitutes advocacy. The Tribunal places little weight on Ms Tobias’ opinion regarding recidivism risk.

114.    A/Prof Martinovic is a lecturer in Global Studies at RMIT’s school of Global, Urban and Social Studies. Her correspondence states in part:

‘Dear Sir/Madam,

I write this letter in my capacity as an Associate Professor at RMIT University in Melbourne…In this letter I am explaining the decision-making process of the Adult Parole Board and offence-specific rehabilitation and treatment which has been arranged for Ms Mao if she is paroled.

The Victorian Parole Board assess a prisoner’s suitability for release on parole. The Parole Suitability Assessment is comprehensive and covers a wide range of issues including the prisoner’s risk to the community, employment background, family and social life, drug and alcohol use history, prison behaviour, proposed accommodation if released on parole, and more. The board carefully considers risk of reoffending as a major element in its assessment of offends (sic). Since Shanshan has been granted parole at the earliest opportunity, this means that the Parole Board must have concluded that she does not pose a risk to the community.

In addition, I have assisted Ms Mao in securing a well-known and reputable psychologist, Ms Amanda Wallis – letter attached – who has agreed to provide Ms Mao with offence specific rehabilitation and treatment if she is released on parole’.

(Emphasis added.)

115.    A/Prof Martinovic stated she feels qualified to provide a risk assessment and does not need to be a psychologist or psychiatrist to do so. The Tribunal respectfully disagrees. There is no persuasive evidence that the work undertaken by a criminologist qualifies them to make risk assessments. Psychologists and psychiatrists on the other hand are trained to apply clinical judgement and actuarial instruments in making such assessments. A/Prof Martinovic’s contact with the Applicant is limited and her opinion is expressed without regard for almost all the evidence tendered. Moreover, her comments about how the Adult Parole Board assesses recidivism risk is pitched at a high level of generality and without access to the documents considered in the Applicant’s parole case. Her opinion seems founded exclusively on inferences from the Board’s website. It is also noteworthy that the risk assessment undertaken by the Tribunal in the context of determining ‘another reason’ for revocation, is different, contextually, to the Adult Parole Board’s task.

116.    Notwithstanding A/Prof Martinovic’s claim that she appears at this hearing as an expert witness, her evidence did not conform with the Tribunal Guideline for Expert and Opinion Evidence. This includes having an overriding duty to provide impartial assistance to the Tribunal on relevant expert knowledge or experience, not being an advocate for a party to a proceeding, and satisfying certain report requirements. On balance, little weight is placed on the predictive validity of A/Prof Martinovic’s risk assessment.

117.    In the absence of relevant expert evidence, the Tribunal does not accept the Applicant’s uncorroborated claims about ‘cultural, familial and gender contexts’ or historical ‘psychological trigger points’ to explain her offending. It is noteworthy these and other factors invoked at the current hearing have only been recently advanced. The Tribunal also does not accept the Applicant’s claim during oral evidence that her offending would not have continued even if the criminal enterprise had not been detected. The persistence of her participation for over two years conflicts with this assertion.

118.    Having regard for the persistence of the Applicant’s past offending, the conditions under which it occurred, the revisionist nature of aspects of her evidence, and her unmet rehabilitation needs, she constitutes a real risk of reoffending that is more than minimal or negligible. This is so despite the protective factors invoked.

119.    When the Applicant’s serious offending is coupled with a real risk of recidivism, this primary consideration weighs substantially against revocation.

(Some footnotes omitted; emphasis added other than in quotation in [114].)

30    It is not necessary to refer to the Tribunal’s consideration of the other primary considerations.

31    After its consideration of these primary considerations, the Tribunal addressed other considerations at [161]-[190]. It is unnecessary for present purposes to focus on that part of the Tribunal’s reasons.

32    The Tribunal expressed its conclusion at [191]-[199]. The Tribunal concluded at [199] that it was not satisfied that there was “another reason” to revoke the cancellation decision.

The primary judge’s reasons

33    The primary judge set out the facts at [4]-[24] of his judgment. This included an extract from the transcript of A/Prof Martinovic’s evidence during the Tribunal hearing (at [20]).

34    The primary judge summarised the key aspects of the Tribunal’s reasons at [25]-[29] of his judgment. The primary judge set out a number of extracts from the Tribunal’s reasons.

35    The primary judge considered the appellant’s grounds of appeal at [30] and following of his judgment. His Honour noted that the appellant’s amended originating application contained extensive particulars. His Honour set out the eight grounds of review without the particulars at [31] of his judgment.

36    His Honour then dealt with each of the grounds of review, grouping some grounds together, as had been done in the appellant’s submissions (see the primary judge’s judgment at [23]). We will refer to the primary judge’s reasons in the course of considering the appellant’s grounds of appeal.

Evidentiary issues

37    It is convenient to start by considering the evidentiary issues raised by the notice of appeal and the informal application for the Court to receive further evidence on appeal.

38    As noted above, the appellant’s appeal grounds include a challenge to the primary judge’s rejection of the tender of two documents, namely:

(a)    the Probation Officer Email (dated 10 September 2024); and

(b)    the 2017 Parole Manual.

39    The Probation Officer Email refers to a rehabilitation programme for women run by the New Zealand Department of Corrections. The email states that the appellant’s referral to this programme was deferred and deemed unsuitable “as it was decided by programme facilitators that you do not have necessary rehabilitation needs to do the programme”. The primary judge rejected the tender of the document (described as a letter from the appellant’s parole officer) on the basis that the email was not before the Tribunal: see the primary judge’s reasons at [40]. Ground 4 of the notice of appeal (which concerns the Tribunal’s finding that the appellant had an “unmet rehabilitative need”) includes the contention that, if a lack of materiality is alleged, the primary judge erred by failing to permit the tender of the Probation Office Email. In our view, no error is shown in the primary judge’s rejection of the tender of this document. In circumstances where the document was not before the Tribunal, it is difficult to see how (at least in the circumstances of this case) the document could be of assistance in demonstrating that the Tribunal fell into jurisdictional error, including as to materiality.

40    The appellant’s application to tender the 2017 Parole Manual was dealt with by the primary judge at [39] of his reasons. The primary judge rejected the tender on the basis that the 2017 Parole Manual was not before the Tribunal. Ground 1(b) of the notice of appeal (which challenges the Tribunal’s assumption that actuarial instruments were used by the Parole Board) includes the contention that, if a lack of materiality is alleged, the primary judge erred by failing to permit the tender of the 2017 Parole Manual. In our view, no error is shown in the primary judge’s rejection of this document. Again, in circumstances where the document was not before the Tribunal, it is difficult to see how (at least in the circumstances of this case) the document could be of assistance in demonstrating that the Tribunal fell into jurisdictional error, including as to materiality.

41    We turn now to consider the appellant’s application for the Court to receive further evidence on appeal, namely the 2020 Parole Manual. The relevant principles were set out in CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124; 294 FCR 318 (Katzmann, Charlesworth and Burley JJ) at [32]-[34]. The 2020 Parole Manual was not before the Tribunal and there was no application to rely on it in the proceeding at first instance. The appellant seeks to rely on the document in support of ground 1(b), which challenges the Tribunal’s assumption that actuarial instruments were used by the Parole Board. As with the 2017 Parole Manual, in circumstances where the document was not before the Tribunal, it is difficult to see how (at least in the circumstances of this case) the document could be of assistance in demonstrating that the Tribunal fell into jurisdictional error, including as to materiality. Accordingly, we do not consider it appropriate to receive this evidence on appeal.

Consideration of appeal grounds

42    We will now consider the grounds of appeal, other than the evidentiary aspects which have already been considered. Consistently with the structure of the appellant’s written submissions, we will consider paragraphs (a), (b) and (c) within ground 1 as separate grounds.

Ground 1(a)

43    By this ground, the appellant contends that the primary judge erred in failing to find that the Tribunal erred in law and in fact in finding that Dr Martinovic was unable to express an opinion as to the appellant’s risk of reoffending by reason of Dr Martinovic not being a qualified psychologist or psychiatrist, and thereby giving little or no weight to that expert opinion in purported application of Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; 271 FCR 595 (Splendido).

44    In her written submissions, the appellant submits (in summary) that: the Tribunal’s focus on formal qualifications led it to err in finding that Dr Martinovic could not express an opinion on the appellant’s risk of reoffending because she was not a qualified psychologist or psychiatrist and had not used actuarial instruments (Tribunal reasons, [115]); the Tribunal further erred in giving little or no weight to her evidence (at [112]) on the purported application of Splendido at [72]; the primary judge erred in failing to find that this constituted jurisdictional error (primary judge’s reasons at [47]-[48], [61], [66], [72]).

45    In oral submissions, the appellant submitted that the Tribunal (particularly at [112]-[113]) read Splendido at [72] (quoting from RJE v Secretary to Department of Justice [2008] VSCA 265; 21 VR 526) as requiring a certain kind of evidence, namely expert psychological or psychiatric evidence, to assess the risk of reoffending. The appellant submits that, in this respect, the Tribunal asked itself the wrong question and wrongly rejected the evidence of Dr Martinovic and the DoJ Letter.

46    In her written and oral submissions, the appellant placed emphasis on the following passage of Dr Martinovic’s oral evidence, which the appellant’s counsel described as her “independent claim” (AB p 762):

Number two, I have done a lot of work in this area and I know that the nature of her offending is not a high risk reoffending category. So people who engage in property offences — this is all documented in literature — property offences, in particular, drug [a]ffected offending. That is the highest risk of reoffending. The kind of offending that Ms Mao has engaged in is not the highest risk of offending. So, you know, if we have a look at, you know, all kinds of expertise evidence, I feel that I can actually make that claim.

47    We assume that the expression “independent claim” was used by counsel to indicate that this was Dr Martinovic’s own opinion as to the risk of the appellant reoffending, as distinct from an opinion formed by reference to the decision of the Parole Board (as set out in her letter dated 21 September 2023). The appellant submits that the Tribunal did not engage with Dr Martinovic’s oral evidence, and that its finding that Dr Martinovic could not express an opinion on the risk of reoffending because she was not a psychologist or psychiatrist infected the Tribunal’s treatment of her evidence as a whole.

48    In oral submissions on this ground, the appellant referred to the DoJ Letter. The letter includes a statement that the appellant “is classified as a minimum-security prisoner and has been assessed at a low risk of recidivism”. The appellant submits that the Tribunal failed to have regard to this evidence.

49    The appellant’s submissions on ground 1(a) also include submissions about apprehended bias, based on the way in which the Tribunal questioned Dr Martinovic during the hearing. Although apprehended bias is not expressly referred to in ground 1(a) (or any of the other grounds), the Minister did not object to the point being raised. The appellant referred in her submissions to the test for apprehended bias in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. The appellant also referred to Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 at [30]-[31] per Gleeson CJ, Gaudron and Gummow JJ. The appellant submits that: a fair reading of the transcript reveals that the Tribunal’s questioning was repetitive and framed to elicit a pre-determined answer, particularly when the Tribunal pressed Dr Martinovic on whether she could identify the actuarial instrument used by the Parole Board in the appellant’s case; when she offered to identify it immediately, she was cut off.

50    It is convenient to address first the appellant’s apprehended bias submission. The primary judge dealt with this aspect of the appellant’s case below at [60]-[67] of his reasons. His Honour stated that he had carefully read the whole of the transcript of Dr Martinovic’s oral evidence before the Tribunal: at [61]. His Honour concluded that the manner in which the Tribunal conducted the questioning of Dr Martinovic was appropriate and would not convey to a reasonable lay observer an apprehension of bias: at [66].

51    On appeal, the key passage of the questioning of Dr Martinovic relied on by the appellant in support of the apprehended bias contention was at AB pp 762-764. In that passage, the Tribunal questioned Dr Martinovic as to whether she was appearing as an expert witness or as a lay witness and advocate on the appellant’s behalf. The Tribunal also raised with Dr Martinovic that she did not have any qualifications as a psychologist or psychiatrist and that, as the Tribunal understood the position, recidivist risk assessments are undertaken by psychologists or psychiatrists, usually through an application of their clinical opinion coupled with actuarial instruments. The Tribunal asked Dr Martinovic what actuarial instrument was applied by the Parole Board in the appellant’s case. Dr Martinovic said she could look that up now and let the Tribunal know in the next minute, but the Tribunal said “No”. In other words, it did not permit her to do so. The Tribunal also said to Dr Martinovic that, as the Tribunal understood her evidence, she had no knowledge of what the Parole Board considered in the specific circumstances of the appellant’s case. The Tribunal asked if it had correctly understood the evidence and she confirmed that it had.

52    Having reviewed that passage, and having regard to the principles stated in the cases relied on by the appellant, we do not consider that the Tribunal overstepped the limits of appropriate questioning so as to give rise to an apprehension of bias. It was appropriate for the Tribunal to raise with Dr Martinovic the concerns that it had as to whether her expertise enabled her to express an opinion on the risk of reoffending. It was also appropriate for it to confirm its understanding of the limitations of her evidence regarding the decision of the Parole Board. It was not incumbent on the Tribunal to permit Dr Martinovic to obtain a document to supplement her answer to a question asked by the Tribunal. For these reasons, no error is shown in the primary judge’s conclusion on the apprehended bias contention.

53    We next consider the appellant’s principal contention on this ground, namely that the Tribunal fell into jurisdictional error by finding that Dr Martinovic lacked expertise to express an opinion as to the appellant’s risk of reoffending. The primary judge dealt with a corresponding contention at [33]-[49] of his reasons for judgment. His Honour relied on the principles stated in Plaintiff M1/2021 at [24] per Kiefel CJ, Keane, Gordon and Steward JJ and De Silva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 831 at [35] per Abraham J. His Honour stated that, here, the Tribunal gave cogent and justifiable reasons for affording Dr Martinovic’s evidence “little weight”, and that there was nothing in the Tribunal’s reasons that took the Tribunal outside the bounds of rationality and reasonableness: at [44]. His Honour also relied on YKSB v Minister for Home Affairs [2020] FCA 476 at [45] per Mortimer J. The primary judge considered that the same matters applied in the present case. The primary judge also adopted certain paragraphs of the Minister’s submissions (at [48]).

54    We see no error in his Honour’s consideration of this issue. We consider that it was for the Tribunal to give the weight that it considered appropriate to the evidence of Dr Martinovic. We note that the Tribunal did not entirely reject her evidence, but rather gave “little weight” to the “predictive validity of [her] risk assessment” (at [116]). This is unsurprising in the circumstances of this case. Dr Martinovic’s documentary evidence comprised only the letters dated 28 August 2023 and 21 September 2023. The first letter did not express an opinion on the risk of the appellant reoffending and the opinion expressed in the second letter was based wholly on the decision of the Parole Board rather than on her own assessment. Further, it emerged during cross-examination that Dr Martinovic had not had access to any of the materials before the Parole Board in relation to the appellant. Insofar as Dr Martinovic made the so-called “independent claim” in her evidence, it was open to the Tribunal to conclude that her basis for expressing this opinion was limited. In the circumstances of this case, we are not satisfied that the Tribunal fell into jurisdictional error by (for example) asking itself the wrong question or adopting the wrong approach to its task.

55    Although the Tribunal cited Splendido at [72] (in the first sentence of [112] of the Tribunal’s reasons), the way in which the Tribunal relied on that paragraph is not entirely clear. Reading the Tribunal’s reasons as a whole, we consider that there were multiple reasons why the Tribunal ultimately afforded little weight to Dr Martinovic’s evidence and the evidence in the DoJ Letter. We are not satisfied that the Tribunal adopted a wrong approach by (for example) forming the view that it could only consider evidence from a psychiatrist or a psychologist and that any other evidence should be disregarded. Rather, we consider that the Tribunal did have regard to the evidence of Dr Martinovic and in the DoJ Letter, but ultimately considered that it should be given little weight.

56    For these reasons, ground 1(a) is not made out.

Ground 1(b)

57    By this ground, the appellant contends that the primary judge erred in failing to find that the Tribunal erred in law and fact in the manner in which it relied on the alleged actuarial instruments used by the Parole Board to assess Dr Martinovic’s evidence (referring to [70]-[72] of the primary judge’s reasons).

58    It is apparent, both from the appellant’s written submissions and from the paragraphs in the primary judge’s reasons that are referred to in this ground, that ground 1(b) is concerned with the Tribunal’s assumption, in its questioning of Dr Martinovic during the hearing and in its reasons, that actuarial instruments are used by the Parole Board and by psychologists and psychiatrists in conducting risk assessments. The relevant passage of questioning is at AB p 763, where the Tribunal referred to its understanding that recidivist risk assessments are undertaken by psychologists or psychiatrists, “usually through an application of their clinical opinion, coupled with actuarial instruments”. The Tribunal also asked Dr Martinovic: “Which actuarial instrument was applied in Ms Mao’s case by the adult parole board?” When Dr Martinovic offered to look that up and let the Tribunal know in the next minute, the Tribunal said “No”. The appellant also relies on [115] of the Tribunal’s reasons, in which the Tribunal stated that psychologists and psychiatrists are “trained to apply clinical judgment and actuarial instruments” in making risk assessments.

59    The appellant submits that the Tribunal’s questioning and its reasons (at [115]) show that it proceeded by asking itself the wrong question on the “unfounded evidential assumption that a statistical tool was required to give an evaluative assessment of the appellant’s risk of reoffending and the use of that tool required professional qualifications”.

60    The primary judge dealt with a comparable contention at [68]-[72] of his reasons. The primary judge adopted the Minister’s submissions that: it was not a breach of procedural fairness to decline an offer by a witness, in the course of oral evidence, to look up the answer to a question that they do not know; the witness’s role was to answer questions and, if she did not know the answer, that was a relevant matter that bore on her level of knowledge or experience or expertise.

61    In her submissions in relation to ground 1(b), the appellant seeks to rely on the 2017 Parole Manual but, for the reasons given above, we reject the challenge to the primary judge’s rejection of the tender of the manual. Further, to the extent that the appellant seeks to rely on the 2020 Parole Manual, for the reasons given above we reject the application for the Court to receive further evidence on appeal.

62    We are not satisfied that any error is shown in the primary judge’s conclusion on this issue. In its questioning of Dr Martinovic, the Tribunal was merely expressing its understanding that actuarial instruments were used in making risk assessments. Dr Martinovic had the opportunity to say that that understanding was incorrect. However, rather than stating that the understanding was incorrect, Dr Martinovic’s evidence tended to confirm the Tribunal’s understanding that actuarial instruments were used. In her answer, she said that she used to work for Corrections Victoria and that she was making risk assessment decisions “based on an actuarial assessment tool, exactly like you’re talking about”. Further, in response to the Tribunal’s question as to which actuarial instrument was applied by the Parole Board in the appellant’s case, Dr Martinovic said: “Look, I don’t – I can look that up now, exactly the one that they use, and let you know in the next one minute”. Far from suggesting that the Parole Board did not use an actuarial instrument, Dr Martinovic’s response tended to confirm the assumption that it did.

63    In light of the evidence described above, we are not satisfied that the Tribunal made a factual error as alleged. Further, even if the Tribunal made an incorrect factual assumption as alleged, we are not satisfied that any such error was jurisdictional.

64    For these reasons, ground 1(b) is not made out.

Ground 1(c)

65    By ground 1(c), the appellant contends that the primary judge erred in failing to find that the Tribunal erred in law and fact in finding that Dr Martinovic lacked impartiality in giving evidence (referring to [74]-[75] of the primary judge’s reasons).

66    The primary judge dealt with a comparable contention at [73]-[76] of his reasons. The primary judge adopted the Minister’s submissions that: if the Tribunal did find that Dr Martinovic lacked impartiality, that finding was open; when one reads Dr Martinovic’s letters, they are written in a way that looks like advocacy. The primary judge stated that that characterisation of Dr Martinovic’s letters was accurate, and there was nothing irrational or unreasonable in the Tribunal’s finding that her evidence lacked impartiality.

67    In our view, no error is shown in the primary judge’s conclusion on this issue. It is not clear whether the Tribunal did in fact make a finding (at [116]) that Dr Martinovic lacked impartiality. The Tribunal stated that her evidence did not conform to the Tribunal Guideline on Persons Giving Expert and Opinion Evidence, and outlined what those guidelines required, including “an overriding duty to provide impartial assistance to the Tribunal”. If and to the extent that the Tribunal found that Dr Martinovic’s evidence lacked impartiality, it was open to the Tribunal to form this view on the basis given by the primary judge, namely the characterisation of her letters.

68    For these reasons, ground 1(c) is not made out.

Ground 2

69    By this ground, the appellant contends that the primary judge erred in law and in fact in finding that:

(a)    the Tribunal correctly assessed the appellant’s current circumstances of being in a poorer financial position and being unlikely to secure stable employment in a financial institution or bakery (see the primary judge’s reasons at [85]-[86], [95], [98]-[100]);

(b)    [107]-[108] of the Tribunal’s reasons were not erroneous in that they properly considered all of the appellant’s changed circumstances and properly distinguished the situation at the time of offending from that at the time of the Tribunal’s assessment, such that the appellant’s circumstances were “[s]elf-evidently … considered and rejected – not ignored” (see the primary judge’s reasons at [53]);

(c)    it was rational for the Tribunal to decide that it would not accept uncorroborated claims regarding the appellant’s past familial trigger points and to reject them without expert evidence (see the primary judge’s reasons at [57]-[59]); and

(d)    the Tribunal did not err in the manner in which it considered the risk of recidivism (see the primary judge’s reasons at [99]-[101]).

70    It is unnecessary to set out the detailed particulars under ground 2, as the points are covered in the appellant’s submissions.

71    The appellant’s overarching submission in support of this ground is that, in its assessment of the appellant’s risk of reoffending, the Tribunal failed to assess the changes in the appellant’s circumstances between the time of the Tribunal’s decision and the time of the offending. This alleged failure to assess the change in the appellant’s circumstances is said to be inconsistent with the principles recognised in Splendido (at [72], [78]).

72    The appellant criticises the Tribunal’s reasoning at [108] (set out at [28] above). The appellant submits that the Tribunal’s inferences are not logically supportive of an increased risk of reoffending and they fail to take into account other factors, such as the presence of the appellant’s husband at the time of the offending compared with his deportation to New Zealand at the time of the hearing.

73    The appellant submits that the Tribunal’s reliance at [118]-[119] (set out at [29] above) on “revisionist” aspects of the appellant’s evidence was flawed. Further, the appellant submits that the Tribunal’s reliance on the appellant’s “unmet rehabilitation needs” was misplaced as it rested solely on the appellant’s offer to undertake future rehabilitation with the clinical psychologist, Ms Amanda Wallis.

74    The appellant submits that the Tribunal failed to engage in a meaningful assessment of the conditions under which the offending occurred and how any changes in those conditions bore on the likelihood or risk of future offending, in particular, the fact that:

(a)    the appellant’s husband, Mr Niu, and a co-accused were engaged daily in property development activities (eg performing building and construction, hiring trades and real estate agents) intended for profit in a joint criminal enterprise; the appellant did not participate in those types of activities;

(b)    the appellant used insider banking knowledge to prepare the loan applications in a way that would secure finance to fund these developments;

(c)    the appellant’s evidence was that she was earning significantly more than her husband, who was unemployed, and that she faced cultural and familial pressure;

(d)    the appellant’s motive at the time was said to be improving the family’s financial position and future; and

(e)    Mr Niu and the co-accused had since been deported from Australia, removing their capacity to facilitate further property developments or familial pressures.

75    The appellant submits that at the time of the Tribunal decision, the appellant proposed to work in a bakery and there was no evidence that she could obtain loans to fund property developments in the future.

76    The appellant submits that she gave evidence that the cultural, familial and financial pressures present at the time of the offending had long ceased. She submits that the Tribunal wrongly treated her lay description of these psychological triggers as necessitating expert evidence and that she was not identifying psychological conditions requiring expert diagnosis, but rather describing life circumstances in lay terms.

77    The appellant relies on Splendido at [72] and [78]. The appellant also relies on Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 639-640 and 643 and Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 574-575.

78    The primary judge dealt with similar contentions at [55]-[59], [81]-[86] and [99]-[101] of his reasons.

79    We are not satisfied that any error is shown in the primary judge’s conclusions in relation to the similar contentions at first instance.

80    Insofar as the appellant contends that the Tribunal failed to properly assess the changed circumstances that applied to the appellant at the time of the Tribunal decision compared with those that applied at the time of the offending, we do not accept that submission. The Tribunal’s reasons at [107]-[108] demonstrate that the Tribunal did undertake that kind of comparison. Many of the appellant’s submissions involve a challenge to the merits of the comparison; they fail to demonstrate that the Tribunal adopted an incorrect approach or otherwise fell into jurisdictional error.

81    Insofar as the appellant relies on Splendido in support of this ground, the facts and circumstances of that case were materially different. In that case, the Assistant Minister’s finding that there was a likelihood that the respondent would reoffend was essentially based on a bare recitation of his past offences: see Splendido at [16] (setting out the key part of the Assistant Minister’s decision), [41] (setting out an extract from the reasons of the primary judge in that case), [71], [81], [82]. However, in the present case, there was evidence about the nature and circumstances of the past offending as well as facts and matters that affected the risk of reoffending, and these were referred to and taken into account by the Tribunal. In any event, we are satisfied that the Tribunal’s consideration of the appellant’s changed circumstances was consistent with the analytical process contemplated in Splendido (at [72], [78]).

82    Insofar as the appellant challenges the Tribunal’s non-acceptance of the appellant’s claims about “cultural, familial and gender contexts” or historical “psychological trigger points” to explain her offending (at [117]), it was open to the Tribunal not to accept that evidence, including on the basis that it had only recently been advanced (notwithstanding the appellant’s explanation as to why it had not been stated earlier).

83    Insofar as the appellant challenges the Tribunal’s reliance on the appellant’s “current rehabilitation needs” (at [118]), it was open to the Tribunal to rely on this, notwithstanding that the basis for this finding appears to have been the appellant’s expressed willingness to undertake offence-specific rehabilitation.

84    For these reasons, ground 2 is not made out.

Ground 3

85    By ground 3, the appellant contends that the primary judge erred in finding that the Tribunal was entitled to place the weight it considered appropriate on the appellant’s motives based on [94] and [109] of the Tribunal’s reasons.

86    As set out above, at [39]-[84] of its reasons, the Tribunal described and discussed the evidence in the proceeding. The appellant’s evidence included that she was “in denial and trapped in the situation … I thought I’d sign and let him [Mr Niu] do what he wants” (at [51]). She referred to certain stressful events in her life in 2015 and cultural pressure to assist Mr Niu without question. At [53], the Tribunal stated that the appellant “said the narrative she presented to the Tribunal at this proceeding is ‘true and correct, even if it appears contradictory to [her] earlier claims’” (emphasis in original).

87    At [94] (set out above), the Tribunal stated that it placed little weight on the appellant’s “new narrative … because a plea of guilty constitutes admission to and acceptance of all elements of the charges a person is convicted of”, citing Maxwell v The Queen [1996] HCA 46; 184 CLR 501 (Maxwell).

88    At [109] (set out above), the Tribunal stated that it was “impermissible for the Tribunal to impugn convictions on their essential factual basis”, citing several cases including the judgment of Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803; 78 AAR 325 (HZCP (FCA)). Although the Tribunal cited [102] of that judgment, that paragraph reference appears to be incorrect. It appears that the relevant paragraph in HZCP (FCA) is [89], where Bromberg J stated: “[T]he Tribunal was entitled to review the circumstances of the conviction for a purpose other than impugning the conviction itself. The Tribunal was not entitled to review the essential facts upon which the applicant’s conviction or his sentence were based” (see also HZCP (FCA) at [78]).

89    The appellant submits that Maxwell does no more than establish that a plea of guilty constitutes acceptance of the legal elements of the offence and contends that motive is not an element of an offence unless expressly stated. Here, motive was not an element of the offences under s 82 of the Crimes Act 1958 (Vic).

90    The appellant relies on the judgment of the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; 273 FCR 121 (HZCP (FFC)), being the appeal from HZCP (FCA). The appellant submits that each of the members of the majority in the Full Court (McKerracher J and Colvin J) expressed differing views. The appellant submits that, given that the Tribunal did not refer to the appeal judgment, it appears that it was not aware of the qualifications made in the appeal judgments. The appellant refers to [191] of the judgment of Colvin J.

91    The primary judge dealt with a comparable contention at [92]-[94]. In summary, the primary judge held that the Tribunal was entitled to place whatever weight it considered appropriate on the appellant’s new claims about her motivations and the other contextual factors of the offending.

92    We are not satisfied that any error has been shown in the primary judge’s conclusion on this issue. The Tribunal relied on a number of bases to reject the appellant’s “re-casting of her involvement in the criminal enterprise” (at [109]). The first and principal basis was that, although the appellant had been legally represented in her criminal matter and appeal and, until recently, in the Tribunal proceeding, she had only recently raised the new matters. It was principally on this basis that the Tribunal said that it preferred the findings of the sentencing court (at [109]). It was open to the Tribunal to rely on these matters in deciding to prefer the findings of the sentencing court.

93    Insofar as the Tribunal relied (at [94]) on Maxwell, we are not satisfied that the Tribunal fell into error. There were aspects of the appellant’s evidence before the Tribunal (eg, that she was in denial and thought she would sign and let Mr Niu do what he wants, or that she acted under pressure) that could be seen to put into question whether she had acted dishonestly (being an element of the offence under s 82 of the Crimes Act). It was therefore open to the Tribunal to rely on Maxwell in the way that it did.

94    Insofar as the Tribunal relied (at [109]) on HZCP (FCA), we are not satisfied that the Tribunal fell into error. For present purposes, we do not consider there to be a material difference between the principle stated by Bromberg J in HZCP (FCA) at [89] and those stated by the majority in HZCP (FFC). In HZCP (FFC), McKerracher J held at [68] that “[t]o permit under the rubric of ‘another reason’, evidence contrary to essential facts which must underlie this conclusion [i.e. as to conviction or sentence] cannot have been the legislative intention”. His Honour also said that “where the foundation for the jurisdiction is predicated on satisfaction of a test which turns on the conviction or sentence, relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error”: at [68]. See also at [77], [78]. Colvin J agreed with the reasons of McKerracher J in relation to the relevant ground (ground 1): see [179]. Although Colvin J elaborated on the issue in his reasons, that discussion did not affect his agreement with McKerracher J’s reasons. The observations of Colvin J at [191] (relied on by the appellant in the present case) concerned a different kind of case, where the conviction or sentence was not the foundation for the exercise of power: see the last sentence of [191]. Here, there were aspects of the appellant’s evidence (eg, that she was in denial and thought she would sign and let Mr Niu do what he wants, or that she acted under pressure) that could be seen to put into question whether she acted dishonestly (being an essential fact upon which the convictions and sentence were based). It was therefore open to the Tribunal to rely on HZCP (FCA) in the way that it did.

95    For these reasons, ground 3 is not made out.

Ground 4

96    By this ground, the appellant contends that the primary judge erred in finding that the appellant’s offer to engage in targeted rehabilitation, specifically related to offences involving obtaining financial advantage by deception, through the psychologist Ms Wallis, constituted evidence of an “unmet rehabilitative need” that weighed against the appellant, referring to [101] of the primary judge’s reasons.

97    The appellant submits that the Tribunal’s finding that the appellant had an “unmet rehabilitative need” by reason of engaging Ms Wallis was made contrary to the submissions of both parties and in the absence of an evidentiary basis; it was an erroneous finding of fact that the Tribunal used as a factor on which to base its finding of a risk of recidivism (at [118]); the primary judge erred in failing to so find (at [101]).

98    We accept that the appellant submitted to the Tribunal that, after receiving the Minister’s submissions, which suggested that the appellant’s rehabilitation efforts lacked offence-specific education, she contacted Dr Martinovic to identify a rehabilitation professional with offence-specific experience, and this led to the proposed sessions with Ms Wallis. In these circumstances, we can understand the appellant’s sense of grievance that this proposal was, in effect, used against her as the basis for a finding that she had an “unmet rehabilitative need”. However, we are not satisfied that the Tribunal fell into jurisdictional error by finding that the appellant had an “unmet rehabilitative need”. Despite the way in which this evidence came about, the material before the Tribunal included a proposal that the appellant undertake rehabilitation sessions with Ms Wallis, and the appellant had not yet undertaken those sessions. There was, therefore, a basis for the Tribunal’s finding. We do not consider the finding to be irrational or otherwise legally unreasonable.

99    For completeness, we note the appellant’s submission that the lawyer representing the Minister at the Tribunal hearing accepted the appellant’s explanation as to why Ms Wallis had been approached and, indeed, submitted to the Tribunal that the purpose of this approach was “to make some kind of point as part of this proceeding as opposed to addressing some kind of need that [the appellant] herself feels needs to be addressed”. However, despite that acceptance and submission, for the reasons already given, the Tribunal’s conclusion was not irrational or legally unreasonable.

100    For these reasons, ground 4 is not made out.

Conclusion

101    It follows that the appeal is to be dismissed. There is no apparent reason why costs should not follow the event. We also consider it appropriate for the costs to be fixed as a lump sum, with the lump sum amount to be determined by a Registrar.

Associate:

Dated:    7 November 2025