Federal Court of Australia

RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the decision of the second respondent of 26 August 2022 by which it affirmed the decision of the delegate of the first respondent to refuse to revoke the mandatory cancellation of the applicant’s visa under section 501CA(4) of the Migration Act 1958 (Cth) made on 2 June 2022.

2.    The application for review be remitted to the second respondent for reconsideration and determination according to law.

3.    The costs of the application are reserved.

4.    On or before 16 October 2023 the applicant is to file and serve a minute of proposed orders for the costs of the application together with a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

5.    On or before 23 October 2023 the first respondent is to file and serve any competing minute of proposed orders for the costs of the application together with a written outline of submissions (limited to 3 pages) and any affidavit(s) in support.

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

REASONS FOR JUDGMENT

FEUTRILL J:

Introduction

1    The applicant is a citizen of Portugal. He entered Australia in 1988. At that time he was eight years of age and has resided in Australia since that time. In August 2019 the applicant was convicted and sentenced in the District Court of Western Australia for one count of possession of child exploitation material. He received a term of imprisonment of 14 months. As a consequence, in November 2019, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth). In December 2019 the applicant made representations to the first respondent (Minister) requesting revocation of the cancellation of his visa under s 501CA(3) of the Act. In October 2020 the Minister made a decision not to revoke the cancellation of the applicant’s visa under s 501CA(4). That decision was ultimately quashed by judicial review and the matter was remitted to the Minister for determination according to law. In June 2022 a delegate of the Minister made a decision not to revoke the cancellation of the applicant’s visa. The applicant sought review of that decision by the second respondent (Tribunal). In August 2022 the Tribunal affirmed the delegate’s decision.

2    In the meantime, as a result of the cancellation of his visa, the applicant no longer had a right to enter or remain in Australia. In the language of the Act, he was an unlawful non-citizen. By reason of that status, upon completion of his custodial sentence in October 2020, he was taken into immigration detention where he remains.

3    Understandably, given the age at which he entered and the duration of the time he has resided in Australia, the applicant has deep and well-established connections to this country. He has a large extended family living in Australia including his parents, nine siblings, 18 nieces and nephews, four aunts and uncles and ten cousins. The three youngest of his siblings were born in Australia. He also has two minor children from a relationship with his previous partner who reside and were born in Australia. He has no known family in Portugal and does not speak Portuguese.

4    Nonetheless, the applicant’s conduct concerns serious offences involving sexual exploitation of children who are amongst the most vulnerable members of the community. The policy of Parliament reflected in the Act is that non-citizens who have committed serious offences should lose the right to reside in Australia with the consequence that they must be removed from Australia in the absence of ‘another reason’ justifying revocation of the cancellation of their visas. The exercise of the broad discretion in s 501CA(4) to revoke the cancellation of a visa for ‘another reason’ is quintessentially an administrative and political decision. It is not the role of courts to review or critique the policy of government. The supervisory jurisdiction conferred on this Court is confined to ensuring that decisions of officers of the Commonwealth are made within the limits of the power Parliament has conferred on them under s 501CA(4).

5    On 26 September 2022 the applicant filed an originating process seeking judicial review of the Tribunal’s decision to affirm the decision of the delegate not to revoke the mandatory cancellation of the applicant’s visa. That application falls within the supervisory jurisdiction of the Court under s 476A of the Act and s 39B of the Judiciary Act 1903 (Cth). In that respect, the Court has the same power as the High Court under s 75(v) of the Constitution.

6    For the reasons which follow, the applicant must succeed on the application.

Legislative scheme

7    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, relevantly because of the operation of ss 501(6)(a) and 501(7)(c) (substantial criminal record on the basis of a sentence of imprisonment of 12 months or more), and that the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, State or Territory. It is common ground that the applicant does not pass the character test.

8    The rules of natural justice do not apply to a decision made under s 501(3A): s 501(5) of the Act. Therefore, a person’s visa is cancelled without that person being afforded procedural fairness: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [10].

9    A consequence of the cancellation of a visa under s 501(3A) is that that the former visa holder is no longer a lawful non-citizen and becomes an unlawful non-citizen: ss 13, 14, 15 of the Act. The former visa holder must be taken into immigration detention and must be removed (deported) from Australia as soon as reasonably practicable: ss 189 and 198 of the Act.

10    Section 501CA(3) of the Act makes provision for a procedure by which the decision to cancel a visa under s 501(3A) (referred to as the original decision) may be revoked. As soon as practicable after making the original decision the Minister must: (a) give the person a written notice that sets out the original decision and particulars of certain information the Minister considers would be the reason, or part of the reason, for making the original decision (referred to as relevant information); and (b) ‘invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’. Regulation 2.52 of the Migration Regulations 1994 (Cth) makes provision for the manner in which representations are to be made to the Minister.

11    Section 501CA(4) of the Act provides that the Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test; or

(ii)    that there is another reason why the original decision should be revoked.

12    Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. Decisions under s 501CA(4) are usually made by a delegate of the Minister. In those circumstances, the former visa-holder has a right to request the Tribunal to review a decision to refuse to revoke a cancellation decision: s 500(1)(ba). Subject to certain procedural modifications, a review under s 500(1)(ba) is undertaken by the Tribunal in its general division.

13    In deciding whether there is ‘another reason’ why the mandatory cancellation of a former visa-holder’s visa should be revoked, a delegate of the Minister and the Tribunal are bound, by s 499(2A), to comply with any direction given by the Minister under s 499(1) of the Act. In this case, the Tribunal was bound to comply with Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA which is dated 8 March 2021 and commenced from 15 April 2021.

14    As explained in more detail later in these reasons, Section 5 of Part 1 of Direction 90 contains a preamble that sets out the objectives of the direction. Amongst other things, para 5.1 indicates that the purpose of the direction is to guide decision-makers in performing functions or exercising powers under, relevantly, s 501CA of the Act. Paragraph 5.2 sets out principles that provide the framework within which decision-makers should approach their task of deciding, relevantly, whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in a particular case) that must be considered in making that decision are set out in Part 2 of the Direction.

15    Section 6 of Part 2 of Direction 90 provides that, informed by the principles in para 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. Section 7 provides guidance on giving appropriate weight to information and evidence from independent and authoritative sources and that, generally, primary considerations should be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations.

16    Section 8 of Part 2 of Direction 90 sets out the primary considerations. These are: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interest of minor children in Australia; and (4) expectations of the Australian community. Paragraphs 8.1–8.4 describe the primary considerations in detail and provide guidance to decision-makers as to the manner in which each of those considerations is to be taken into account. Relevant to this appeal is para 8.3 that addresses the best interests of minor children in Australia affected by the decision.

17    Section 9 of Part 2 of Direction 90 sets out the other considerations. These are: (1) international non-refoulement obligations; (2) extent of impediments if removed; (3) impact on victims; and (4) links to the Australian community. Paragraphs 9.1–9.4 describe the other considerations in detail and provide guidance on the manner in which each is to be taken into account. Relevant to this appeal is para 9.2 that addresses the extent of impediments if removed.

Tribunal’s reasons

18    The Tribunal’s reasons (T) began with an overview of the application, background of the applicant’s circumstances and offending, history of proceedings, issues and legislative framework (T [1]-[28]). The Tribunal outlined the application of Direction 90 (T [29]-[38]). The Tribunal then addressed the evidence before it (T [39]-[101]).

19    The Tribunal found that the applicant did not pass the ‘character test’ and considered other reasons why the cancellation decision should be revoked in light of the parties’ submissions (T [102]-[226]). That the applicant fails to pass the character test is not in issue.

20    The Tribunal next considered primary consideration 1 (the protection of the Australian community from criminal or other serious conduct) (T [106]-[154]). Within that consideration it addressed the nature and seriousness of the conduct (T [108]-[118]) and the risk to the Australian community in the event that the applicant re-offends (T [119]-[154]).

21    The principal offence the applicant committed concerned viewing 2,431 child exploitation materials comprising images of children classified as 2,409 category 1, 11 category 2, four category 4 and seven category 5 images over a four-month period. The images included pre-pubescent children aged from four to 12 years of age. The offence had a maximum sentence of seven years and the applicant was sentenced to 14 months’ imprisonment that included a discount for pleading guilty.

22    The Tribunal described the nature of the applicant’ offending in terms that included the following:

115.    The Tribunal is of the view that the nature of the Applicant’s offending conduct, as set out in the sentencing remarks is particularly unsettling and disturbing. Offences against children, particularly those with a sexual element are abhorrent and completely intolerable and the Tribunal has consistently regarded possession of children exploitation material very gravely. The Tribunal is of the view that the material found in the Applicant’s possession is repugnant and entirely unacceptable. The Tribunal shares the view of the sentencing judge that children who are participants in child exploitation material are being violated and degraded to create a market for child exploitation material, a market that will continue to abuse children whilst there is a demand for this material.

116.    The 2,431 images located by police on the Applicant’s phone spanned the entirety of the Child Exploitation Tracking System Classification Scheme categories. Without describing the material belonging to each category in the scheme, the Tribunal emphasises that it considers those descriptions to be, as it did in Metcalfe, horrific and bluntly, gruesome and sickening.

(Footnotes omitted.)

The Tribunal concluded that the nature and seriousness of the applicant’s conduct is such that it ought to be viewed very seriously and weighs strongly against the revocation of the cancellation decision (T [118]). The Tribunal then turned to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

23    The Tribunal began its consideration of the risk to the Australian community by setting out an extract of the relevant part of para 8.1.2 of Direction 90 (T [119]). The Tribunal referred to CZCV and Minister for Home Affairs [2019] AATA 91 at [56]-[57] as summarising the task the Tribunal was to undertake for the purpose of para 8.1.2, recognising that it related to an earlier version of Direction 90, as requiring it to ‘assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community’ (T [120]). Further, in making that assessment, the Tribunal is to be guided by the observations in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95] (Mortimer J), Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at [42]-[43] (Gilmour J), BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] (Moshinsky J) and Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] (Kenny J).

24    The Tribunal then considered the nature of the harm to the Australian community if the applicant were to engage in further criminal or other serious conduct (T [121]-[126]). The Tribunal summarised the applicant’s and Minister’s submissions before concluding (at T [126]):

As such, the Tribunal finds that the nature of the harm to individuals or the Australian community if the Applicant were to engage in further criminal or other serious conduct to be objectively high. The acceptability (or not) of the risk of harm of this nature occurring is addressed further below.

25    The Tribunal dealt with the likelihood of the applicant engaging in further criminal or other serious conduct. In this regard, the Tribunal approached the task by first considering whether the viewing of child exploitation material constitutes harm to the children whose images the applicant viewed to the extent that even a low risk of the applicant reoffending (or indeed any risk level higher than no risk) is unacceptable. After considering that question, the Tribunal went on to consider the ‘actual likelihood’ of the applicant engaging in further criminal or other serious conduct.

26    That approach appears to have been in response to a submission that the applicant had made to the effect that in order for the Tribunal to be satisfied that ‘any risk of reoffending is unacceptable, it must determine that there is a clear and defined link between the children who are being exploited in those images and the Applicant viewing those images’ (emphasis original) (T [128]). The applicant’s submission appears to have been to the effect that the absence of a link meant that there was no substantive risk to the Australian community. Further, the applicant submitted that the Australian community would have a higher level of tolerance of harm in relation to the applicant due to the length of time he had resided in Australia (T [128]-[134]).

27    Part of the applicant’s submission was based on a decision of Deputy President Boyle in WSYT v Minister for Home Affairs (Migration) [2019] AATA 4621. The applicant submitted that in that case, despite no genuine rehabilitation having taken place and that the former visa-holder had committed sexual offences physically against child victims within one to two years of entering Australia, the assessed low risk of that applicant reoffending was not considered unacceptable. In that context, the applicant submitted that given that the applicant had not offended directly against any child, the Australian community would have a higher tolerance for risk in his case due to the time he had resided in Australian before offending, and that he was of low risk of reoffending, the risk of harm from the applicant could not be unacceptable. The Minister disagreed (T [133]-[134]).

28    The Tribunal considered the parties submissions and set out its observations and findings in respect of that point (T [135]). In addressing the tolerance for risk of the Australian community and the applicant’s submissions based on WSYT, the Tribunal said:

135.    The Tribunal has considered the parties’ submissions on this point and makes the following observations and findings:

…

(f)    The Tribunal accepts that the Australian community may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. Whether that extends to the Applicant in this case would not be solely by virtue of the time he has spent in Australia or the age that he arrived but would also necessarily require consideration of his overall conduct.

(g)    As to the Applicant’s reference to WSYT v Minister for Home Affairs (Migration) [2019] AATA 4621 (WSYT), Deputy President Boyle’s finding was made in the context of an offender whom the Tribunal had found to be at an extremely low likelihood of reoffending. However, the Applicant’s successful reliance on WSYT hinges on the present Tribunal’s acceptance of its contention that the Applicant’s risk of reoffending is low. The likelihood of the Applicant’s risk of reoffending is a matter that is disputed between the parties and is addressed below.

(Emphasis in original, footnotes omitted.)

29    The Tribunal then concluded (T [136]).

For these reasons, the Tribunal finds that viewing of child exploitation material is harmful to the children whose images the Applicant viewed to the extent that the level of tolerable risk the Australian community ought to accept in this regard is nil. That is, in the circumstances, the Tribunal is of the opinion that the Applicant’s conduct fits within the category of conduct so serious that any risk of it being repeated is unacceptable.

(Emphasis in original, footnote omitted.)

30    The Tribunal next considered the ‘actual likelihood’ of the applicant engaging in further criminal or other serious conduct (T [137]). The Tribunal summarised the applicant’s and Minister’s submissions on the evidence on that topic (at T [138]-[139]) before then considering the evidence (at [140]-[152]) and ultimately making a conclusion on the risk to the Australian community and the weight to be attached to that risk (at [153]).

31    The Tribunal acknowledged that the applicant had taken steps to rehabilitate. However, he had not participated in sex offender treatment courses and, therefore, there remained ‘an unmet treatment need’ (T [141]-[143]).

32    The Tribunal then identified that there was ‘great divergence of opinion in the evidence regarding the degree of the Applicant’s risk of reoffending’ and the evidence that resulted in the Tribunal’s characterisation (T [144]). The divergent evidence was:

(a)    Clinical psychologist, Dr Philip Watts’ opinion to the effect that the applicant is at ‘a relatively low risk of reoffending, a risk that would be further lowered if the Applicant completed sexual offending and counselling and continued general counselling’. Together with the applicant’s own evidence that he was at low risk of reoffending. (Dr Watts’ opinion was founded, in part, on an assessment that used the Static 99R assessment tool for offending.)

(b)    A court report referred to in the sentencing judge’s remarks which assessed the applicant at a moderate risk of reoffending.

(c)    A Department of Corrective Services Report (completed at Hakea prison) stating that the applicant was a high risk of reoffending. (That report was based on the LS/RNR assessment tool for offending.)

Earlier in its reasons the Tribunal had identified and summarised the evidence described in that paragraph of its reasons as divergent.

33    The relevant parts of the Hakea prison report were summarised as follows (T [69]).

The Applicant was asked several questions after being taken to the following passages from a Treatment Assessment Report created by Hakea Prison on 8 October 2019, which ultimately assessed the Applicant as having a high risk of reoffending in relation to child exploitation material and a high risk of general reoffending:

…

By his own account, he commenced viewing pornography images intermittently in 2016 which escalated to viewing CEM by the end of 2017, and that he spent up to half an hour viewing them at night but did not always masturbate to them whilst or after viewing them. [The Applicant] disclosed to the assessor that he first encountered CEM when accessing files containing images of nudist scenes that contained images of families and that he became sexually aroused to images contained 14–16-year-old girls who had developed secondary sex characteristics including breasts.

…

It is difficult to provide a clear formulation of [the Applicant’s] current offending behaviour due to his denial of some aspects of the offence details.

…

Based on the current assessment, [the Applicant] presents a high risk of general reoffending on the LS/RNR…

…

Given that Sexual Deviancy is a highlighted area of concern and [the Applicant’s] admission to sexual attraction to underage females, it is recommended that he be included in the Medium Intensity Sex Offending Treatment Program.

…

(Footnotes omitted.)

34    The sentencing judge’s remarks, as summarised by the Tribunal, refer to a psychologist observing that the applicant’s risk of reoffending was high (T [110]). The transcript of those remarks refer to a psychological report. The transcript also records that the sentencing judge expressed the view that as the applicant had ‘embarked upon some psychological assistance … in time it may well be that your risk of reoffending is going to be more moderate’. Therefore, the sentencing judge’s remarks about moderate risk appear to be what the Tribunal is referring to at [144] of its reasons.

35    Parts of a report of Dr Watts dated 27 April 2020 were summarised as follows (T [99]).

19.    [The Applicant] indicated that his sexual interests have been with adult women…

…

29.    [The Applicant] is quite appalled by his conduct, is remorseful that it occurred, and continues to seek its understanding…

30.    There is no doubt that [the Applicant] is quite remorseful of this situation, both for himself, but he also understood the impact on children, and is quite horrified at the thought that he was looking at other children when he has children of his own in that age range.

31.    [The Applicant] is an interesting mix with regards to insight. I note that the initial psychologist said that he had a lack of insight. As explained earlier, he has simply not come from a psychologically sophisticated world and had no idea of the emotional connections.

…

34.    [The Applicant’s] history is not one of general offending. Other than the possibility of driving related offences, [the Applicant] does not show any pattern of offending behaviour, and his attitude on the PAI was below average for offender beliefs.

35.    There is no evidence that [the Applicant] has offended against a real child. There is no evidence that [the Applicant] has any desire to offend against a real child. I would note that the literature on child internet pornography offences, especially the work of Michael Seto, a Canadian researcher, should suggest that there is a fairly low likelihood of recidivism against children.

36.    Using the Risk for Sexual Violence Protocol (RSVP), [the Applicant] did not show strong features of risk.

37.    The only potential area of risk would be reoffending by looking at child pornography. [The Applicant] had quite a significant consequence in regards to being caught. It is also my experience, for a number of men, they come to realise the dysfunction of their behaviour through being caught. I would see him as being relatively low risk of reoffending, especially i[f] he completes a sex offender program. The only risk factor would be if life goes badly, that the trauma symptoms escalate, and he seeks to lower the emotional arousal through addiction patterns. Having said that, I consider it unlikely that it would involve a real child.

38.    It is evident from the Sentencing Remarks that the Judge sentenced [the Applicant] according to the need for community deterrent [sic] as a primary principle. There is not a lot of discussion of risks, so it is difficult to know the level of risk the Court made the sentence on. However, in my opinion, the child internet pornography was being used as a way of escaping negative trauma thoughts, along with excessive alcohol use and workaholic tendency…While I consider [the Applicant] to be low risk of reoffending in the child porn area, if he continues individual therapy and completes a sex offender court, the risk more be a more confidently low. The only likelihood of relapse would be excessive alcohol abuse.

(Footnotes omitted.)

36    The Tribunal considered that a second report of Dr Watts dated 24 July 2022 affirmed his previous conclusions and again found that the applicant is of a relatively low risk of reoffending (T [100]).

37    The Tribunal summarised Dr Watts’ oral evidence before the Tribunal in the following terms (at T [101]).

(a)    Based on psychological testing and interview, he considers the applicant has PTSD, depression, major depression, and anxiety.

(b)    The applicant’s risk of reoffending was, in his view, relatively low, and would be lower still if the applicant was able to complete the sex offender treatment course and continue to address his trauma. No one can ever be at ‘no risk’ of reoffending.

(c)    While the applicant has become interested in child exploitation material, he is not someone who has a paedophilic interest, which is the same as a sexual attraction to children.

(d)    The applicant’s failure to complete a sex offending course does not change his opinions on risk.

(e)    The Static-99R assessment tool is not a specific tool for child exploitation material, rather it is for sex offending in general. The LS/RNR is also a tool for assessment of general offending, not sex offending. He was cautious in relying on the Static-99R, even though it would if anything probably overstate the risk, because child exploitation material would be seen as ‘less strong’. Psychologically, there is no single standard clinical point of view in looking at risk of reoffending.

(f)    If someone has a clear interest in, and is sexually aroused by children, it increases the risk that they will reoffend over child exploitation material.

(g)    The applicant did not tell him that he was sexually attracted to teenage children, rather, he said the opposite.

(h)    He could not be clear on whether the applicant had told him that he masturbated to images of teenage children. If the applicant had told him so, it would, in Dr Watts’ opinion, marginally increase the degree of his risk of reoffending, not the nature of offending.

(i)    The applicant did not tell him that he had asked not to do the sex offender treatment program in Bunbury because to was too far from family. If the applicant had done so, it does raise some concern about whether he would do that sort of course when released. However, the applicant has a relatively low risk of reoffending irrespective of treatment. That the risk could escalate without treatment. With treatment the applicant could be an even lower risk.

38    In the course of the Tribunal’s summary of the evidence of Dr Watts it had not made mention of the following oral evidence Dr Watts gave during his cross-examination:

… And one point I’d just like to stress – and I’m pretty sure the tribunal is familiar with anyway – ultimately you can never say anyone is no risk. So you’re looking at whether they’re low, moderate, high-type risk. So, you know, low is the low-end category.

As will be explained later, the absence of any specific reference to that part of the evidence of Dr Watts forms part of the particulars of the applicant’s grounds for judicial review.

39    The Tribunal considered that it ‘had been left in a somewhat difficult position following Dr [Watts’] oral evidence’ (T [145]). The Hakea prison report made reference to the applicant, in substance, having disclosed to the assessor that he has sexual interest in 14-16 year old girls who had developed secondary sex characteristics (T [69]). During his cross-examination Dr Watts was questioned as to whether the applicant had disclosed that sexual interest to Dr Watts. Dr Watts’ answers were somewhat inconclusive. Dr Watts was also asked that if the applicant had disclosed that to him if it would have affected his opinion. Dr Watts said it would have had an effect to a degree, but was unable to indicate to what extent (T [145]).

40    The Tribunal also found that the applicant had not disclosed to Dr Watts that the applicant had cancelled participation in a sex offender program (T [145]-[147]). The Tribunal concluded (T [148]).

The Tribunal is therefore left in the position that had the Applicant informed Dr Watts and the writer of the report completed at Hakea prison of these matters, there is a real prospect that the Applicant’s risk of reoffending would have been more than low.

41    The applicant had submitted that the Tribunal should give ‘substantial weight to Dr Watts’ report, given his qualifications and experience and the explanation given around the various assessment tools he has adopted’. The Tribunal accepted the difficulty of assessing risk in circumstances in which there was ‘no assessment tool specifically designed for offending involving child exploitation material’ (T [149]). It then made the following observation about the veracity of Dr Watts’ evidence regarding assessment tools (T [150]).

However, Dr Watts used the Static 99R assessment tool that is designed to assess risk in the context of contact sex offending. Then the Applicant submitted Dr Watts’ opinion should be given substantial weight, in circumstances where Dr Watts conceded he was unfamiliar with the LS/RNR and therefore could not comment further on the assessment given that relied on that tool. This leaves the Tribunal in a position where it is very difficult to satisfy itself of the Applicant’s risk of reoffending concretely and definitively.

(Emphasis original.)

42    The Tribunal then considered non-expert evidence about the risk of the applicant reoffending. It attributed ‘little if any weight’ to that evidence (T [151]).

43    Last, the Tribunal set out its conclusions on the applicant’s risk of reoffending and the risk to the Australian community as follows (T [152]-[153]).

152.    The Tribunal has given its reasons as to why it is difficult for it conclusively [to] make a [finding] on the Applicant’s risk of reoffending. Even if the Tribunal were to adopt Dr Watts’ opinion that the Applicant’s risk of reoffending was low with certainty (and for the reasons stated, it does not), or accept any of the other risk ratings provided, given that the level of tolerable risk the Australian community ought to accept is nil, that is, lower than Dr Watts’ assessment of ‘low’, then nothing turns on the differing opinions available.

153.    Therefore, the Tribunal finds that, on balance, paragraph 8.1.2 of Direction No. 90, being the risk to the Australian community should the Applicant commit further offences, weighs very strongly against revocation of the Cancellation Decision.

(Emphasis original.)

44    The Tribunal concluded that ‘on balance, paragraphs 8.1.1 and 8.1.2 of Direction No. 90 weigh very strongly against revocation’ and ‘overall … the primary consideration of the Australian community weighs very strongly against the revocation of the Cancellation Decision’ (T [154]).

45    The Tribunal next considered primary consideration 2 (family violence committed by the applicant). The applicant had been convicted of an assault occasioning bodily harm involving his mother when he was a juvenile. The Tribunal accepted that the assault involved family violence, but gave very little weight to that factor (T [155]-[159]).

46    The Tribunal next considered primary consideration 3 (the best interests of minor children in Australia affected by the revocation decision). The Tribunal considered that the best interests of the applicant’s two daughters weighed very strongly in favour of revocation. Further, the Tribunal considered that the best interests of the applicant’s nephews and nieces weighed moderately in favour of revocation. The Tribunal considered the overall weight to be given to primary consideration 3 as part of the final weighing exercise of all factors (T [160]-[187]).

47    The Tribunal next considered primary consideration 4 (the expectations of the Australian community). The Tribunal considered that the expectations of the Australian community was a norm that weighed very strongly against revocation having regard to the nature of the applicant’s offending (T [188]-[201]).

48    The Tribunal next addressed other considerations such as non-refoulement obligations, the extent of impediments upon the applicant if removed, impact on victims, the applicant’s links to the Australian community and the strength, nature and duration of such ties, as well as impacts on Australian business interests (T [202]-[226]). The Tribunal concluded that non-refoulement was neutral (T [203]), impediments weighed moderately in favour or revocation (T [211]) and impact on victims (the applicant’s mother) weighed slightly in favour of revocation (T [214]). As to the strength, nature and duration of his ties to Australia, the Tribunal concluded that this factor weighed strongly in favour of revocation having regard, in particular, to the impact that non-revocation would have on the applicant’s children (T [223]). The Tribunal considered that impacts on Australian business interests was not a relevant factor and should be given neutral weight (T [226]).

49    The Tribunal then set out its conclusions and the weight attached to the various considerations before concluding that there was not another reason for revoking the cancellation of the applicant’s visa (T [227]-[241]). Relevantly, the Tribunal said:

238.    Despite the number of considerations weighing in the Applicant’s favour, the Tribunal is nonetheless of the exceptionally strong view that, due to:

(a)    the unacceptable risk of harm to the Australian community; and

(b)    the seriousness of the Tribunal’s concerns regarding there being any risk at all the Applicant reoffending in a similar way,

the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) and the expectations of the Australian community consideration, are two primary considerations which the Tribunal considers weigh very strongly against revocation of the cancellation Decision–to the extent that they outweigh any and all considerations weighing in the Applicant’s favour.

239.    The Tribunal considers this case to be very finely balanced in circumstances where it has also found that the best interests of the Applicant’s minor children and the strength, nature and duration of ties weigh strongly in favour of revocation. However, given the significance of the weight placed on the two primary considerations weighing strongly against revocation, this is whether the Tribunal has found the balance lies.

240.    For the Tribunal to adopt the Applicant’s submission that the best interests of minor children consideration favourably outweighs all other considerations would be to ignore the significance of the very strong weight the Tribunal firmly attaches to the protection of the Australian community and the expectations of the Australian community considerations.

(Emphasis original.)

50    The Tribunal concluded with its decision to affirm the delegate’s decision under review (T [242]).

Grounds of review

51    The applicant’s originating application has the following two grounds of review:

5.    The Second Respondent fell into jurisdictional error because it failed to actively give proper, genuine and realistic consideration with respect to psychologist Dr Philip Watts’ expert evidence … relating to the level of risk of the applicant re-offending, in circumstances where the Second Respondent held that this issue outweighed any and all considerations weighing in the Applicant’s favour.

Particulars

5.1    The Tribunal heard evidence from Dr Philip Watts, a psychologist, who had assessed the Applicant in 2020 and in 2022. Dr Watts gave evidence about the risk of reoffending that the Applicant presented and said that “ultimately you can never say anyone is no risk. So you’re looking at whether they’re low, moderate, high-type risk. So, you know, low is the low-end category”; Transcript [P-61].

5.2    The Tribunal referred to Dr Watts’ evidence about the level of risk the Applicant presented in the context of its consideration of the first Primary Consideration of Direction No 90, Decision [138]-[153] but did not refer to the evidence of Dr Watts that “ultimately you can never say anyone is no risk.”

5.3    Despite not referring to this evidence, the Tribunal found that the only acceptable level of risk for the purposes of the first Primary Consideration was that the “level of tolerable risk the Australian community ought to accept is nil”; Decision [152].

6.    The Second Respondent fell into jurisdictional error in that it acted irrationally, illogically or unreasonably in relation to the issue of the level of acceptable risk of the Applicant re-offending.

Particulars

6.1    The Second Respondent heard evidence from Dr Philip Watts, a psychologist, who had assessed the Applicant in 2020 and in 2022. Dr Watts gave evidence about the risk of reoffending that the Applicant presented and said that “ultimately you can never say anyone is no risk. So you’re looking at whether they’re low, moderate, high-type risk. So, you know, low is the low-end category”; Transcript P61

6.2    The Second Respondent referred to Dr Watts’ evidence about the level of risk the Applicant presented in the context of its consideration of the first Primary Consideration of Direction No 90, Decision [138]-[153] but did not refer to the evidence of Dr Watts’ that “ultimately you can never say anyone is no risk.”

6.3    Despite not referring to, or engaging with this evidence, the Second Respondent found that the only acceptable level of risk for the purposes of the first Primary Consideration was that the “level of tolerable risk the Australian community ought to accept is nil”; Decision [152].

6.4    The Second Respondent concluded that its view that the nil level of tolerable risk to the Australian community, despite the evidence of Dr Watts that no finding of nil risk could be made, was such that “despite the number of considerations weighing in the Applicant’s favour, the Tribunal [was] of the exceptionally strong view that” the issue risk of reoffending was one factor that outweighed any other factors in the Applicant’s favour; Decision [238].

6.5    In the circumstances the Second Respondent provided reasons about the level of risk of reoffending that were contrary to the evidence and otherwise bore no apparent rational connection with the evidence concerning risk assessment given by Dr Watts.

52    The principal issue raised by the applicant’s grounds of review concern the way that the Tribunal dealt with the risk of the applicant reoffending and expectations of the Australian community. In particular, the applicant submits that the Tribunal misunderstood the evidence of Dr Watts that, in essence, one can never say that an individual poses no risk. Despite Dr Watts’ evidence that the applicant’s risk of reoffending was ‘low’, according to the Tribunal, this was immaterial because the level of risk that the Australian community should expect is ‘nil’, meaning a low risk is insufficient.

Parties’ submissions

Applicant’s submissions

53    The applicant submits that the way in which the Tribunal deal with the evidence of Dr Watts reveals that its process of reasoning was illogical, irrational or unreasonable or that it failed to identify, understand and evaluate that evidence in the context of the applicant’s representations about the risk of him re-offending. These contentions are reflected in paragraphs 6 and 5 of the grounds of review. The focus of the applicant’s submissions concerns the passage in the Tribunal’s reasons (at T [152]) referred to earlier in these reasons.

54    The applicant submits that the Tribunal’s conclusion to the effect that ‘the level of tolerable risk the Australian community ought to accept is nil’ was not legally reasonable in a context in which Dr Watts had given evidence that ‘ultimately you can never say anyone is no risk’. Put another way, it is illogical to conclude that no risk offending is acceptable to the Australian community when it could never be said that any person presented no risk of re-offending. Further, it is to be inferred from the absence of any reference to that aspect of Dr Watts’ evidence in the part of the Tribunal’s reasons dealing with risk to the Australian community that the Tribunal ignored a substantial ‘claim’ of the applicant and, thereby, failed to identify, understand and evaluate a key element of the applicant’s representations about the risk of him re-offending.

55    The applicant’s oral submissions elaborate on the grounds of review and his written submissions and, to an extent, refine the manner in which he characterises the alleged errors of the Tribunal. The applicant further submits that the Tribunal misunderstood Dr Watts’ evidence concerning the Static 99R and LS/RNR assessment tools. The applicant accepts that such an error, if made, is an error of fact-finding that was within the jurisdiction of the Tribunal. However, he submits that the factual error is important background to the manner in which the Tribunal dealt with Dr Watts’ evidence as a whole and, so the applicant submits, to the Tribunal overlooking and failing to deal with Dr Watts’ evidence to the effect that it can never be said that a person is poses no risk of offending.

56    The applicant submits, in effect, that Tribunal’s reasons do not engage with the evidence of Dr Watts that, essentially, it is impossible to say that someone poses no risk of reoffending. The applicant submits the Tribunal did not genuinely engage with the nature of the risk of reoffending because it did not accept any risk less than nil was acceptable. In circumstances where Dr Watts was the only professional witness that gave evidence before the Tribunal and, therefore, his evidence was not contradicted, the Tribunal ignored and failed to take into account Dr Watts’ evidence which was a material consideration to the primary consideration of the risk to the Australian community in the event that the applicant re-offends. The applicant submits that was a failure to understand or consider an important integer of the applicant’s representations as to the existence of ‘another reason’ for revocation of the cancellation of his visa. The applicant also characterised the alleged error in terms of the Tribunal failing to engage with the issue of the risk of the applicant re-offending because, in effect, it concluded that the risk of the applicant reoffending did not matter. That, so the applicant submits, in effect involved a failure to genuinely engage with the factor or risk mandated in Direction 90. It was involved an element of pre-judgment or the application of a rule to the risk factor.

Minister’s submissions

57    The Minister submits that the Tribunal considered the relevant aspect of Dr Watts’ evidence at para [101(b)] referred to earlier in these reasons. Further, the applicant’s contentions before the Tribunal accepted that the Tribunal could find that ‘any risk of reoffending is unacceptable’. Therefore, the applicant should be taken to have accepted the converse; ‘no risk is acceptable’. The Tribunal’s consideration of the relevant aspect of Dr Watts’ evidence must be considered in light of the ‘case’ that the applicant made in the Tribunal.

58    The Minister submits that para 8.1.2(1) of Direction 90 contemplates that: ‘Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’ Relying on Da Costa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1045 at [31], [33], [40], the Minister submits that the assessment of that risk, unacceptability and weight was a matter for the Tribunal and the Tribunal was entitled to conclude that possession of child exploitation material was so serious that the Australian community would find any risk level of further offending unacceptable. In this case, that is the conclusion the Tribunal reached (T [199(a)(ii)]).

59    The Minister submits that the Tribunal’s conclusion is also not illogical, irrational or unreasonable. The Minister submits that even if Dr Watts’ evidence is irrefutable that does not mean that the Tribunal could not logically or rationally reach the conclusion that any level of risk of the applicant reoffending is unacceptable to the Australian community. Further, that the Tribunal considered that no risk was acceptable also does not mean that it was precluded from making a decision to revoke the cancellation of the visa if other factors outweighed the unacceptable risk of re-offending. The Tribunal has not identified an ‘impossible’ standard, but formed a view of the acceptability of the risk of reoffending based on the nature of the offences the applicant committed.

60    The Minister submits that the Tribunal made no error in its fact-finding relating to Dr Watts’ evidence concerning the Static 99R and LS/RNR assessment tools. Further, even if it had made the error alleged, it could not result in jurisdictional error.

61    The Minister also submits that the Tribunal did not engage in prejudgment or setting of a rule in the manner in which it dealt with the question of unacceptable risk to the Australian community. The Minister submits that the Tribunal had regard to the particular circumstances of the applicant’s offending, the nature and seriousness of the applicant’s offence. The Tribunal did not, so the Minister submits, apply a blanket rule that any offence involving child exploitation material presented an unacceptable risk to the Australian community.

62    The Minister submits that it was not necessary for the Tribunal to refer to every piece of evidence before the Tribunal. Therefore, it cannot be inferred from the failure to specifically refer to Dr Watts’ evidence to the effect that it can never be said that a person is of no risk of offending that the Tribunal had failed to identify, understand and evaluate or consider that evidence. Further, if there were such a failure it could not have been material having regard to the Tribunal’s conclusion that any risk of reoffending was unacceptable.

Consideration

63    Although the applicant’s grounds of review were framed as jurisdictional errors involving an illogical, irrational or unreasonable process of reasoning or a failure to evaluate a material integer of the applicant’s representations to the Tribunal as to ‘another reason’ why the cancellation of his visa should be revoked, the gravamen of his complaint is that the Tribunal failed to engage with the issue of the risk of the applicant reoffending in the manner mandated by Direction 90. That is, the applicant contends that the Tribunal failed to assess the risk the applicant posed to the Australian community because it concluded that nothing turned on the actual level of that risk as a result of its view that, whatever that level of risk, any risk to the Australian community of the applicant repeating his offending conduct was unacceptable.

64    A failure to comply with the express requirements of Direction 90 as to the considerations to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a decision to cancel a visa may involve jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (and the authorities there cited). Therefore, the real question on the application is whether the Tribunal approached its task of assessing and evaluating the risk of the applicant reoffending in a manner that was not consistent with the approach Direction 90 required. In that regard, the following aspects of Direction 90 are relevant.

(1)    Paragraph 5.1 of the preamble sets out the objectives of Direction 90. These include that the purpose of the Direction ‘is to guide decision-makers in performing functions or exercising powers under [s 501CA] of the Act’: para 5.1(4).

(2)    Paragraph 5.2 of the preamble sets out the principles that ‘provide the framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA’. Further the ‘factors (to the extent relevant in the particular case) that must be considered in making a decision under [s 501CA] of the Act are identified in Part 2’.

(3)    The principles described under para 5.2 are as follows:

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

(2)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.

(5)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

(4)    Section 6 provides that ‘[i]nformed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

(5)    Section 7 provides a guide to the approach that decision-makers should take to attributing weight to relevant factors as follows:

(1)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2)    Primary considerations should generally be given greater weight than the other considerations.

(3)    One or more primary considerations may outweigh other primary considerations.

(6)    Section 8 sets out four primary considerations: protection of the Australian community; whether the conducted engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.

(7)    Paragraph 8.1 describes primary consideration 1 (protection of the Australian community) as follows:

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

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

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

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

(8)    Paragraphs 8.1.1 and 8.1.2 provide more detailed descriptions of the approach to be taken to the nature and seriousness of the conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.1.2 provides:

8.1.2    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the noncitizen re-offending; and

ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

…

(9)    Paragraph 8.4 describes primary consideration 4 (expectations of the Australian community) as follows:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

…

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

…

(3)    The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

(10)    Section 9 sets out four other considerations: international non-refoulement obligations; the extent of impediments if removed; impact on victims; and links to the Australian community.

65    As the plurality (O’Callaghan and Colvin JJ) observed in FHHM (at [9]) (with respect to Direction 79), Direction 90 specifies considerations that must be taken into account by a decision-maker such as the Tribunal in exercising the power conferred by s 501CA(4) to revoke a visa cancellation. The direction differentiates between ‘primary and other considerations’. All specified considerations must be taken into account where relevant. When it comes to weighing those considerations, Direction 90 requires that primary considerations should generally be given greater weight than the other considerations.

66    In FHHM (at [10]) the plurality said of Direction 79, which was in materially the same terms as Direction 90, that ‘as a matter of proper construction of the terms of the direction, the requirement to “generally” give greater weight to the primary considerations means that there must be some matter specific to the circumstances of the case for giving one of the other considerations greater weight than any of the primary considerations before that can occur. Put another way, a decision could not be made on the basis that one of the other considerations, such as the strength, nature and duration of ties to Australia, was a matter that was inherently a matter to be given more weight than one or more of the primary consideration. Rather, there must be a reason, in the particular case, why the “other consideration” is to be given greater weight than it would usually be given (being less weight than the primary considerations)’.

67    In FHHM O’Callaghan and Colvin JJ (at [32]-[34]) (Derrington J agreeing, at [56]) also endorsed the approach Colvin J described to the evaluation and weighing of primary and other consideration in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], [28] (for the purposes of Direction 65 and Direction 79 that preceded Direction 90). The relevant point for present purposes is that these directions, including Direction 90, make clear that an evaluation is required in each case as to the weight to be given to primary and other considerations and that these are to be given ‘appropriate weight’. As is also clear from FHHM, a decision-maker who undertakes the task of applying Direction 90 may, as the Tribunal has done here, evaluate each of the relevant considerations and engage in a form of ranking the relative significance of each consideration in the course of undertaking the process of weighing them and before undertaking an overall evaluation that brings together the relative views reached on each relevant individual consideration.

68    However, as the Full Court observed in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28], ‘compliance with the Direction is not achieved by focusing upon individual considerations and attributing some form of “weight” to that consideration viewed in isolation. The real burden of the task to be undertaken by a decision-maker who must comply with the Direction is to bring together the considerations as part of single evaluation of their relative significance thereby weighing them all together. A task of that kind cannot be performed by fragmenting the consideration into an evaluation of individual consideration, attributing to each of them some form of individual abstract term purport to be a measure of their significance, and the aggregating by some form of calculus each of the individual assessments. To undertake the task in that manner is not to comply with the Direction.’

69    It is also relevant for the purposes of this application to highlight that primary consideration 1 is directed to protection of the Australian community from the risk of harm should the non-citizen commit further offences or engage in other serious conduct. That necessarily requires an enquiry into and evaluation of the nature and seriousness of any potential harm and the risk or likelihood of that harm eventuating. A decision-maker upon undertaking that enquiry may conclude that the risk to the Australian community is unacceptable even if the risk is low or very low where the nature of the potential harm is sufficiently serious. The point here is that a decision-maker must assess risk and reach a view as to the extent to which the Australian community needs to be protected from the risk of harm the former visa-holder poses. No part of that evaluative exercise involves an assessment of the level of tolerance that the Australian community ‘ought to have’ for a particular kind of offending or risk in the abstract. The question of protection of the Australian community and its tolerance of the risk of harm must be assessed and evaluated by reference to factors specifically relevant to the non-citizen who has requested revocation. It is not an abstract assessment and evaluation of tolerance of risk of the Australian community.

70    The expectations of the Australian community, in the abstract, are described normatively in primary consideration 4. Direction 90 does not call for a decision-maker to undertake any enquiry into those expectations. Direction 90 expresses them as a norm. A decision-maker is not entitled to equate the decision-maker’s view as to the preferable exercise in the ultimate exercise of the discretion with the government’s view of the expectations of the Australian community. However, ultimately, in the exercise of the overall evaluative task, a decision-maker may or may not decide to act in accordance with that expectation and refuse to revoke cancellation of a visa: FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 at [74]-[77] (Charlesworth J), [97] (Steward J). Paragraph 5.2(3) of the principles of Direction 90 also make it clear that in the ultimate evaluation of all relevant considerations, the expectations of the Australian community set out in para 8.4 apply ‘regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’.

71    While it has been accepted in relation to Direction 90 (and its predecessors) that there is no prescribed way of evaluating the risk to the Australian community and it is not necessary for the decision-maker to ‘evaluate the risk of harm in a particular way’: Markaj v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 120 at [86]; Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [44]; Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 at [71], para 8.1.2(2)b) directs that in assessing the risk that may be posed by the non-citizen, decision-makers must have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct. Even without that direction, the ‘likelihood of a person engaging in such conduct in the future is considered’ is an inherent and indispensable part of any assessment of risk to the community: Tanielu at [101].

72    In Ayoub the Full Court, in the context of a decision of the Minister personally, described the decision-maker’s task of evaluating risk in the following way (at [44]-[47]):

44    Paragraphs 21 and 45 of these reasons, either by themselves or when read in the context of the surrounding reasoning process, do not expose any failure on the part of the Minister to place the “risk” of the appellant re-offending in the proper context of the offence itself and all other circumstances relevant to the present personal circumstances of the appellant. It was not necessary, with respect, for the Minister to “ascribe” any particular characterisation to the “quality of risk” and even if there were, the Minister described the risk of harm to individuals or the Australian community as “unacceptable”. Nor was it necessary for the Minister to “evaluate the risk of harm in a particular way”: see Moana at [71].

45    Reasons may be expressed differently by different Ministers. To the extent that be relevant, which may be doubted, a Minister may see fit to characterise a particular risk as “serious”: eg, Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [17]-[20]. And some Ministers may see fit to try and effect some form of assessment by reference to the nature of the criminal conduct which gives rise to the exercise of the power conferred by s 501(2) and (6)(a) of the Migration Act by reference to the risk that re-offending may pose to the Australian community. In some cases a failure on the part of a Minister to do more than simply refer to there being a “risk” may evidence a failure properly to take that factor into account. A mere reference in passing to the prospect of there being a “risk” may not be sufficient for a conclusion to be reached on an application for judicial review that that factor was properly taken into account, assuming that there was a legal duty to take the factor into account.

46    Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 179 LGERA 458 at [100] per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an “unacceptable risk” or a “grave and serious risk”, may not be sufficient to clothe a statement of reasons with impunity.

47    The reasons provided in every case must each be considered by reference to the facts of each particular case and must all be construed in a practical and common-sense manner and not with “an eye keenly attuned to the perception of error”: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

73    Therefore what matters in the assessment of the risk to the Australian community is not how the risk of harm is assessed or evaluated but that there is an actual assessment and evaluation undertaken of that risk. That assessment and evaluation cannot be undertaken properly and in accordance with Direction 90 without the decision-maker assessing and evaluating the likelihood of the particular non-citizen engaging in further criminal or serious conduct.

74    Further, in the context of the evaluation of risk and tolerance for risk in connection with criminal behaviour the concept of ‘unacceptable risk’ is not without content in Australian law and has general features which can be derived from authorities on that topic. One feature is that an assessment needs to be made of the likelihood of a person engaging in conduct in the future which may cause harm: Tanielu at [102]. It is only after that risk has been assessed or evaluated that the decision-maker is then in a position to consider if the risk is acceptable or unacceptable having regard to the assessed risk to the community and other factors such as the tolerance of the community having regard to the particular circumstances of the non-citizen in question.

75    It is also important to keep in mind that a conclusion that a former visa-holder poses an unacceptable risk of harm does not mean that the decision-maker must refuse to revoke cancellation of a visa. The need to protect the Australian community from an unacceptable risk of harm is but one consideration, which must generally be given more weight than other considerations, to be taken into account in the ultimate evaluation of the relative significance of all relevant considerations. In that context, an assessment of the magnitude of the risk of harm may be of significant importance to the ultimate evaluative task. For instance, while a low (yet measurable or quantifiable) risk of serious harm may be unacceptable, that consideration may be of relatively less weight than a high or moderate risk of the same serious harm when it comes to the evaluation of all relevant considerations. Therefore, while any risk may be unacceptable, the magnitude or likelihood of that risk coming to pass may be of great significance to the overall evaluative task.

76    The Tribunal’s reasons do not reveal that it has completed an assessment and evaluation of the risk to the Australian community based on the likelihood of the applicant engaging in further criminal or other serious conduct and, then, assessed and evaluated the extent to which that risk is or is not acceptable having regard to the particular circumstances of the applicant. The Tribunal concluded, without making any specific findings on the likelihood of the applicant engaging in such criminal or other conduct, that due to the nature of his offending ‘the level of tolerable risk the Australian community ought to accept … is nil’ (T [136]). That conclusion was reached before considering the likelihood of the applicant engaging in further criminal or other serious conduct based only on the nature and seriousness of his previous offending conduct. Having reached the conclusion, in effect, that no risk was acceptable, the Tribunal was of the view it was not necessary for it to make any specific findings as to the actual risk of the applicant reoffending (that is, a specific finding about the likelihood of the applicant engaging in further criminal or other serious conduct). The Tribunal considered even if it accepted that the risk was low, based on its earlier conclusion that no risk was tolerable, any risk was unacceptable (T [152]).

77    The effect of that process of reasoning was that the Tribunal, in substance, failed to complete an assessment and evaluation of the likelihood of the applicant engaging in further criminal or other serious conduct as it was required to do in accordance with para 8.1.2(2)b) of Direction 90. Even if the Tribunal was of the view that a low risk of reoffending was not acceptable, a finding as to the likelihood of the applicant engaging in further criminal or other serious conduct was necessary for the purpose of evaluating the relative weight to be given to the protection of the Australian community.

78    As a matter of logic, it does not necessarily follow that a low (albeit unacceptable) risk of serious harm to the Australian community should weigh very strongly against revocation. Paragraph 8.1.2(2) of Direction 90 directs decision-makers to have regard to the nature of the harm and, in effect, the likelihood of that harm taking place. These factors are ultimately to be considered within the framework of principles in para 5.2 that include a higher level of tolerance of criminal and other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age and that even strong countervailing considerations may be insufficient in some circumstances even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. The Tribunal addressed the weighing and evaluation of the primary and other considerations, relevantly, at T [238]-[240], referred to earlier in these reasons.

79    Even though the Tribunal’s reasons may be read such that it reached its conclusions regarding the risk to the Australian community adopting a favourable assumption that the risk of the applicant reoffending was low and, therefore, there is no realistic possibility of a different outcome had the Tribunal not made the relevant error, the undemanding ‘reasonable conjecture’ threshold of materiality has been crossed in this case: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32]-[33], citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [38]. The relevant error was within the process of reasoning that resulted in the Tribunal’s conclusion that the primary consideration of the risk to the Australian community should the applicant commit further offences ‘weighs very strongly against revocation’ (T [153]) and the ‘exceptionally strong view’ (emphasis original) that given the ‘unacceptable risk of harm to the Australian community’ and ‘concerns regarding there being any risk at all’ of the applicant reoffending, the protection and expectations of the Australian community ‘weigh very strongly against revocation’ (T [238]). Otherwise, the Tribunal considered the case to be ‘very finely balanced’ (T [239]). In these circumstances, a concrete finding to the effect that the likelihood of the applicant reoffending was ‘low’, which removed any doubt about that question, could have affected the weight to be attached to protection of the Australian community, and, thereby, tip the balance of the scales in the other direction. Therefore, the error was material.

Conclusion

80    The Tribunal failed to make a finding about risk or the likelihood of the applicant engaging in criminal or other serious conduct in the future. In the absence of that evaluation or finding the Tribunal failed to perform the task required in paras 8.1(2) and 8.1.2(2)b) of Direction 90. Concluding that nothing turns on the differing opinions as to risk was incorrect. The Tribunal only got as far as concluding that any risk was unacceptable. But, that was only part of the enquiry. The degree of tolerance or extent to which that risk is unacceptable was relevant to the weight to be attributed to the primary consideration of protection of the Australian community as part of the ultimate evaluation of all relevant considerations. A small yet unacceptable risk is quite different to a moderate unacceptable risk. The conclusion (at T [153]) was formed without reaching a conclusion about risk. Therefore, the conclusion that the protection of the Australian community ‘weighs very strongly against’ revocation was an evaluation made without reaching a conclusion about the relative degree or significance of the risk of the applicant causing harm to the Australian community in the future. It was based purely on a view about unacceptable risk due to the nature of the potential harm the applicant could cause and not the likelihood of that harm coming to pass. That was erroneous and material and a jurisdictional error.

81    There will be an order for the issue of a writ of certiorari quashing the Tribunal’s decision and for the matter to be remitted to the Tribunal for determination according to law. I will hear the parties on the question of costs.

Associate:

Dated:    18 September 2023