Federal Court of Australia

QXNS v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1369

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue directed to the second respondent, quashing the second respondent’s decision made on 8 April 2022.

2.    A writ of mandamus issue directed to the second respondent, requiring the second respondent to consider and determine the applicant’s application for review according to law.

3.    The first respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

HORAN J:

Introduction

1    The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal on 8 April 2022, affirming a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs under s 501(1) of the Migration Act 1958 (Cth) to refuse to grant to her husband a Partner (Provisional) (Class FU) visa (partner visa) on character grounds. I will refer to the applicant’s husband as the visa applicant.

2    It was not in dispute before the Tribunal that the visa applicant had a “substantial criminal record” within the meaning of s 501(6)(a) and (7)(c), having been convicted of two sexual offences for which he had been sentenced to a term of imprisonment of 12 months or more. The offences were committed by the visa applicant while working as a taxi driver in May 2011 and December 2011, and each offence involved a sexual assault committed against a female passenger. The visa applicant had not reoffended since December 2011.

3    The question for the Tribunal was whether the discretion under s 501(1) of the Migration Act should be exercised to refuse to grant a visa to the visa applicant. This involved the application of Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), with which the Tribunal was required by s 499 of the Migration Act to comply.

4    The central issue in the proceedings before the Tribunal concerned the visa applicant’s risk of reoffending in the context of the protection of the Australian community and the expectations of the Australian community, each of which is a primary consideration under Direction 90. The Tribunal ultimately concluded that those two primary considerations, which weighed very heavily against the grant of a partner visa to the visa applicant, outweighed the other primary and non-primary considerations that weighed in favour of granting the visa. Accordingly, the Tribunal found that the correct or preferable decision was to exercise the discretion to refuse to grant the visa.

5    The applicant’s challenge to the Tribunal’s decision is focused primarily on its finding regarding the visa applicant’s risk of reoffending, which is alleged to have been the product of an irrational and illogical process of reasoning and to have failed to engage with representations made by the applicant and expert psychological evidence. The applicant also alleges that, in finding that the expectations of the Australian community weighed heavily against the grant of the partner visa, the Tribunal unfairly had regard to previous decisions made by the Tribunal in other cases involving sexual offences committed by taxi drivers against passengers. Finally, the applicant challenges the Tribunal’s finding in relation to the impact of the decision on Australian business interests as having proceeded on a misconstruction of Direction 90.

6    Thus, the applicant contends that the Tribunal’s decision was affected by legal error and was beyond jurisdiction on the following four grounds:

(a)    Ground 1: the Tribunal’s finding about the visa applicant’s risk of reoffending was not based on reasonable, rational or logical reasons, in that the Tribunal based that finding on the visa applicant’s state of mind at the time that he committed his second offence on 2 December 2011, which was not relevant to his risk of offending as at the date of the Tribunal’s decision;

(b)    Ground 2: the Tribunal failed to have regard to the applicant’s representations in relation to the visa applicant’s risk of reoffending, and failed to consider critical evidence of an expert psychologist regarding the assessment of that risk of reoffending;

(c)    Ground 3: the Tribunal failed to notify the applicant of an adverse conclusion or critical issue in the review, namely, a so-called “values position” that had been taken by the Tribunal in other cases in relation to the seriousness of offences committed by taxi drivers against passengers; and

(d)    Ground 4: the Tribunal failed to consider the applicant’s representation that the refusal to grant a visa to her husband would impact her business interests, and misconstrued or misapplied para 9.4.2 of Direction 90 in giving no weight to any business interest that did not involve the delivery of a major project or important service.

7    For the reasons set out below, Ground 1 is upheld. The Tribunal’s finding that the visa applicant’s risk of reoffending was “not negligible”, based on his state of mind at the time that he committed the second sexual assault more than 10 years earlier, was legally unreasonable and was not based on probative material or logical grounds. The other grounds of review are rejected — the Tribunal did not fail to consider or understand the applicant’s representations or the expert psychological evidence in relation to the visa applicant’s risk of reoffending; the Tribunal did not deny procedural fairness by failing to give the applicant an opportunity to be heard in relation to any critical issue arising on the review; and the Tribunal did not misconstrue para 9.4.2 of Direction 90 or fail to have regard to any impact on Australian business interests if the visa applicant were not allowed to enter or remain in Australia.

Background

8    The visa applicant is a citizen of India, who first arrived in Australia in December 2006 as the holder of a student visa. After obtaining hospitality qualifications, he worked as a taxi driver.

9    On 20 May 2011, the visa applicant committed a sexual assault against a 31-year-old woman who was travelling as a passenger in his taxi (“RD”). The victim had been attending a birthday party of a friend, and told police that she was “feeling a bit tipsy but was certainly not drunk”. The visa applicant was arrested and interviewed by police in respect of this offence on 25 May 2011. The visa applicant gave a “no comment” interview. A summons was subsequently issued and the visa applicant appeared at the Ringwood Magistrates’ Court on 1 September 2011, at which time he indicated that he wished to defend the charge.

10    On 2 December 2011, while the charges for the first offence were still pending, the visa applicant committed a further sexual assault against a 22-year-old woman who was a passenger in his taxi (“CT”). The victim had been attending a work Christmas party, and had decided to go home after becoming intoxicated. On 9 December 2011, the visa applicant was arrested and interviewed by police in relation to the second offence. He was charged and remanded in custody, before being later released on bail.

11    In March 2013, the visa applicant pleaded guilty to both offences of indecent assault, and was sentenced in the County Court of Victoria to a total effective sentence of 12 months’ imprisonment, with a non-parole period of six months. The Court directed that the visa applicant be placed on the Register of Sex Offenders for 15 years.

12    In the meantime, the visa applicant had commenced a romantic relationship with the applicant towards the end of 2012. The applicant is the director of a company that operates in the food and beverage industry, and the visa applicant had been employed by this company as a service manager since 2010. The applicant is an Australian citizen, with a daughter from a previous marriage who was born in 2007. She gave evidence to the Tribunal that the visa applicant had told her in early 2013 about the conduct that was the subject of the indecent assault convictions, and that she had let him know that such conduct was “completely unacceptable behaviour”.

13    In July 2014, following the completion of his prison sentence, the visa applicant was voluntarily removed from Australia to India. At that time, the applicant was residing in Singapore with her daughter. The applicant and the visa applicant continued their relationship between India and Singapore. In August 2015, the visa applicant relocated to Singapore to live with the applicant, travelling to and from India for work until 2019, when he was able to secure work in Singapore as a restaurant manager. In March 2017, the applicant and visa applicant were married in Singapore.

14    On 4 October 2017, the visa applicant applied for a partner visa. On 8 October 2021, a delegate of the Minister decided under s 501(1) of the Migration Act to refuse to grant a partner visa to the visa applicant. As the visa applicant’s sponsor, the applicant applied to the Tribunal for review of the delegate’s decision.

15    In November 2021, the applicant returned to Australia with her daughter, primarily to enable her daughter to attend a school in Sydney, but also to be closer to family and to enable the applicant to run her business in Australia.

16    The Tribunal conducted hearings on 31 January 2022, 1 February 2022 and (after having been reconstituted) 16 March 2022. The applicant was legally represented before the Tribunal. Both the applicant and the visa applicant provided written statements and gave oral evidence. A clinical psychologist, Mr Warren Simmons, provided two reports and gave oral evidence as an expert witness.

17    On 8 April 2022, the Tribunal affirmed the delegate’s decision to refuse to grant a partner visa to the visa applicant under s 501(1) of the Migration Act: QXNS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 696 (T).

The Tribunal’s decision

18    In exercising the discretion whether to refuse to grant a partner visa to the visa applicant, the Tribunal took into account each of the primary considerations and the other considerations under Direction 90.

19    The Tribunal’s decision ultimately rested on the primary considerations of protection of the Australian community and the expectations of the Australian community, each of which was weighed very heavily against the grant of the visa. Given the centrality of those conclusions to the grounds of review, the Tribunal’s reasoning in support of its findings on those primary considerations is separately addressed below.

20    The Tribunal found that the primary consideration of the best interests of minor children in Australia weighed “somewhat in favour of granting the visa”, based on a finding that it would be in the best interests of the applicant’s daughter for the visa applicant to be granted the visa: T [79]-[80], [83], [101]. The remaining primary consideration, whether the conduct engaged in constituted family violence, was not engaged and therefore was given neutral weight: T [67].

21    Some of the other (non-primary) considerations identified in Direction 90 were not regarded as relevant and were weighed “neutrally” — for example, international non-refoulement obligations and the extent of impediments if removed from Australia, in circumstances where the visa applicant was located overseas: T [91]-[93]. The Tribunal also gave neutral weight to the impact on the victims of the visa applicant’s offending, given that there was no evidence of the victims’ knowledge of or views about the visa applicant being granted a visa to be in Australia: T [94]-[95].

22    The non-primary consideration of “links to the Australian community” was found overall to weigh in favour of exercising the discretion to grant the visa: T [104].

(a)    In relation to the strength, nature and duration of ties to Australia, the Tribunal accepted that the visa applicant was in a long-standing, stable and monogamous relationship with the applicant, and that he had developed substantial ties with the applicant’s daughter and other members of her family, along with other friends who had made statements in support of his visa application: T [100]. The particular impact of the grant or refusal of the partner visa on the applicant was also independently taken into account as an additional consideration (see below).

(b)    The Tribunal found that the impact on Australian business interests weighed “neutrally”: T [101]-[103]. While the visa applicant had previously worked for the applicant’s business in Australia, and the applicant had advised the Tribunal that he would be able to resume a position with that company if he were granted a visa, the Tribunal referred to the visa applicant’s plans to establish his own restaurant or café. The Tribunal noted that “an employment link would generally only be given weight where the decision under section 501 would significantly compromise the delivery of a major project or an important service in Australia”: T [101]. The Tribunal was not satisfied that the denial of a visa to the visa applicant would have a significant impact on a major project or the delivery of an important service in Australia: T [102].

23    The Tribunal separately addressed the impact of the decision on the review applicant, as the visa applicant’s wife and the sponsor of the partner visa application: T [105]-[109]. The Tribunal accepted that the relationship between them was “genuine, loving and mutually supportive”, with some evidence of financial pooling of resources and attempts to conceive a child: T [106]-[107]. Accordingly, the Tribunal accepted that the refusal of the partner visa would have a “very significant effect” on the applicant and the visa applicant, and that this weighed “relatively strongly” in favour of the discretion being exercised to grant the visa: T [108]-[109].

24    In reaching its conclusion, the Tribunal noted the principle that primary considerations should generally be given greater weight than other considerations: T [112], referring to para 7(2) of Direction 90. The Tribunal was “not unmindful” of the significant effect that its decision would have on the marriage between the applicant and the visa applicant: T [112]. After referring to the principles set out in para 5(3) and (4) of Direction 90, the Tribunal concluded (T [115]):

While the professional assessment of the risk of re-offending of the [visa applicant] may remain “low”, the following fact remains, [the visa applicant] made a conscious decision, fully cognisant of the laws of Australia and that he was awaiting facing justice in relation to a sexual assault, to commit a further and more serious sexual assault. He did so, in each case, when he was in a position of trust. Even more egregiously, he committed the second offence with the stated motivation that the victim was too drunk to realize what he was doing and, even if she did, because of her intoxication, she would not be believed. This is a completely unacceptable attitude for any person in Australia to hold, but more so for a person (a) on a visa and (b) who was about to face the Courts. The Tribunal finds, with those facts not in dispute, and in line with the Principles in the Direction, that the delegate’s decision not to exercise the discretion available in the Act was the correct and preferable decision.

25    In the proceedings before this Court, the first three grounds of review challenge aspects of the Tribunal’s findings on the protection of the Australian community, in particular the visa applicant’s risk of reoffending, and the expectations of the Australian community. The fourth ground of review relates to the Tribunal’s finding on the impact on Australian business interests for the purposes of the consideration relating to the visa applicant’s links to the Australian community.

26    Before addressing the arguments in relation to each of the grounds of review, it is necessary to set out in greater detail the Tribunal’s reasoning on the visa applicant’s risk of reoffending and the protection of the Australian community, along with the expectations of the Australian community in relation to such offending.

Protection of the Australian community

27    The Tribunal found that the first primary consideration under Direction 90, protection of the Australian community, weighed very heavily against exercising the discretion to grant a partner visa to the visa applicant: T [65].

The nature and seriousness of the conduct

28    In relation to the nature and seriousness of the visa applicant’s conduct (paras 8.1(a) and 8.1.1 of Direction 90), the Tribunal recounted the circumstances of the two offences, including by reference to extracts from the sentencing remarks. The Tribunal referred to the “similarities in the environment surrounding both offences”, which had each occurred when the visa applicant was working as a taxi driver and had been engaged to take a young woman in his taxi: T [30]. His offending was regarded by the sentencing court as “most serious” and attended by the following aggravating features: first, that he had been entrusted with the safe passage of the victims, each of whom was a young female, and had “breached that trust in a most despicable way”; secondly, that he chosen to reoffend in December 2011 despite being on notice that what he had done on the previous occasion was unacceptable and unlawful (having been interviewed and charged and having attended court in respect of the first offence).

29    In accordance with para 8.1.1 of Direction 90, the Tribunal had regard to the frequency of the visa applicant’s offending and the cumulative effect of repeated offending. The Tribunal noted that the second offence was committed within about seven months of the first offence, and represented an increase in the seriousness of the offending conduct. The Tribunal acknowledged that there was no other offending recorded against the visa applicant in Australia or overseas.

30    The Tribunal referred to the visa applicant’s oral evidence at the hearing, in which he offered an explanation of his offending. In relation to the first offence, the visa applicant attributed his offending conduct to cultural differences and a lack of experience in dealing with women, stating that he had thought or believed that the victim might be interested “because she was a bit tipsy”. However, he said that he now considered that this was a “totally wrong thing to do” and that his conduct was “totally unacceptable”. In relation to the second offence, the visa applicant stated that he committed the indecent assault on the victim because “honestly, I thought she is drunk, she won’t realise or she won’t be able to pay attention” or “to know what had happened”: T [35]-[36]. The visa applicant agreed in cross-examination that, when he committed the second offence, he had already had a court appearance at a contest mention in relation to the first offence. He also agreed that the offences were made more serious by the facts that he was a taxi driver and had been entrusted with the safe passage of the victims to their destination: T [38].

31    The Tribunal concluded as follows in relation to the nature and seriousness of the offending conduct (T [41]-[42]):

Overall, the Tribunal considers the [visa applicant’s] offending to be very serious. Sexual offending is always serious because it involves unlawful touching of another person. In this case, the seriousness is compounded by two factors. The first is that the victims were both intoxicated and therefore vulnerable. They were each placed into taxis with the expectation they would be safely delivered home. The [visa applicant’s] offending was therefore opportunistic and, in the words of the Judge, “despicable.”

The second factor is that whatever [the visa applicant] might have thought or misunderstood about cultural practices in Australia, he clearly knew this sort of conduct was unlawful because he had been arrested and charged for the May 2011 offence and appeared in Court. Yet, with this knowledge fresh in his mind, he went on to commit an offence against another vulnerable female passenger, and this time in a worse manner by touching her intimately without her consent.

The risk to the Australian community

32    When considering the primary consideration of protection of the Australian community, paras 8.1(2)(b) and 8.1.2 of Direction 90 require the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. This involves having regard to the nature of the harm to individuals or the Australian community; the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of reoffending and any evidence of rehabilitation achieved by the time of decision; and (in the case of visa refusal) the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa: para 8.1.2(2) of Direction 90.

33    In addressing the visa applicant’s risk of reoffending, the Tribunal had regard to three expert psychological reports. The first report had been prepared Mr Jeffrey Cummins in February 2013 (Cummins report) in connection with the sentencing process in the County Court. The applicant relied on two psychological reports by Mr Warren Simmons, a report dated 20 August 2021 (Simmons report) and a supplementary report dated 3 March 2022 (supplementary Simmons report).

34    The Cummins report had assessed the visa applicant at the “lower end of the moderate risk category” for reoffending, using the “Static-99R” risk assessment tool: T [49].

35    The Simmons report pointed to the time that had passed since the visa applicant’s release from custody, noting that the Static-99R tool provided an estimate of the likelihood of reoffending at the time of release from custody, and stating that this risk halves for every five years spent in the community without committing an offence. On this basis, Mr Simmons considered that, taking into account the offence-free period since the visa applicant’s release, the probability of him reoffending “would now be lower than 4%”, which might be an overestimate having regard to the absence of dynamic risk factors (such as mental health issues, substance use, or any history of abuse or neglect).

36    The Tribunal noted several limitations in relation to the Simmons report, including in particular that it appeared that the visa applicant had been “less than candid” in his interview with Mr Simmons in relation to the disclosure of his past sexual partners. The visa applicant had a sexual relationship with a woman from New Zealand over a period of about 18 months between late 2009 and early 2011. This relationship had been mentioned in the Cummins report, but that report had not been provided to Mr Simmons when he prepared his first report. Rather, when Mr Simmons had asked the visa applicant an open-ended question about his past sexual partners, the visa applicant stated that his only sexual partner (other than visits to a brothel) was the applicant.

37    This led to the supplementary Simmons report, in which the visa applicant’s relationship with the woman from New Zealand was addressed. The visa applicant told Mr Simmons that he had not disclosed this relationship during his previous assessment because “[h]e did not see it as a relationship in any strong sense” and had perceived it “as being little different from attending a brothel”. The visa applicant provided the Tribunal with a written statement dated 31 January 2022 which gave a similar explanation (namely, “[t]his is not what I consider a relationship nor did I consider her my partner”). Relevantly, Mr Simmons expressed his opinion that the disclosure of the relationship “does not change any subsequent conclusions with regard to [his] risk for further offending”, both because it occurred before his offending and therefore did not change the factors relevant to the Static-99R risk assessment and because it was a consensual relationship which had “little bearing in terms of the types of offences” in question.

38    It is important to recognise that the Tribunal accepted Mr Simmons’ professional opinion in relation to the visa applicant’s low risk of reoffending, including that the undisclosed relationship did not change his conclusions regarding the visa applicant’s risk of further offending: T [54]-[55], [64].

39    However, the Tribunal remained troubled by what it regarded as an “inconsistency” in the visa applicant’s evidence, including statements that he had made to the Department in August 2021 about the reasons for committing the offences in 2011, in which the visa applicant had sought to explain his offending by reference to his “[u]nawareness of Australian culture”, his lack of experience in socialising with Australian people and dealing with women, and his lack of maturity: T [55]. In the light of the visa applicant’s consensual sexual relationship with a woman from New Zealand “whose cultural mores would be as close to those in Australia as any other country”, and the fact that he had been living and working in Australia and regularly driving a taxi cab, the Tribunal did not accept that the visa applicant’s “[u]nawareness of Australian culture” had any bearing on his offending: T [56]. The Tribunal noted that, in the course of his work as a taxi driver, the visa applicant had safely driven young women to their destinations on many occasions, but what was different on the occasions of the two offences was that “the women were affected by alcohol, and he decided that an opportunity presented”: T [56].

40    After discussing the visa applicant’s oral evidence about the reasons for and the impact of his offending, the Tribunal summed up its findings on the risk of further offending as follows (T [64]):

Noting Mr Cummins’ assessment in 2013 of [the visa applicant] being at the lower end of a “moderate risk”, the Tribunal accepts the professional opinion of Mr Simmons that the [visa applicant] is now a “low risk” of re-offending. He is now in a stable and, on the evidence before the Tribunal, a happy marriage, which is a significant preventative factor. However, the Tribunal concludes that the risk is not negligible. A large part of that is [the visa applicant’s] willingness to sexually assault a stranger in his taxicab, while he was facing charges in relation to an earlier assault; and where he admitted, frankly, to the Tribunal, part of the impetus for his offending was that he thought she would not remember what had taken place or, if she did make a complaint, she would not be believed.

(Emphasis added.)

41    The Tribunal concluded that that the primary consideration of the protection of the Australian community from criminal or other serious conduct weighed “very heavily against exercising the discretion to grant the visa”: at T [65].

Expectations of the Australian community

42    The Tribunal referred to paras 8.4(1) and (2) of Direction 90, which deal with the primary consideration of the expectations of the Australian community. As the Tribunal acknowledged (T [87]-[88]), these paragraphs of the Direction contain a statement of the Executive government’s views as to the expectations that are deemed to be held by the Australian community, thereby “imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter”: see FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66]-[68] (Charlesworth J), see also at [88]-[93], [103]-[104] (Stewart J). Those stated expectations operate as a “norm”, the relative weight of which will depend on the particular circumstances of the individual case.

43    As well as articulating the general expectation that non-citizens should obey Australian laws while in Australia, Direction 90 specifically contemplates that the Australian community expects that non-citizens should be refused entry if they raise serious character concerns through the commission of serious crimes, including crimes of a violent or sexual nature, against women, children or other vulnerable members of the community: see para 8.4(2)(c) of Direction 90.

44    The Tribunal found that the visa applicant’s offending was “squarely” in the category of serious crimes of a violent or sexual nature against vulnerable women who “were both intoxicated and entrusted to the care of the visa applicant as a public vehicle driver”: T [86]. The Tribunal also characterised the sexual offending as “violent” in the sense that it involved a violation of the victims.

45    The Tribunal stated (at [89]):

The Tribunal accepts that the [visa applicant] does not have a long history of offending. Only two offences are recorded against his name, and they were committed more than ten years ago. But they were both serious offences. While each case must properly be considered in the context of its individual circumstances, I note that the Tribunal has consistently taken a bleak view of sexual assault offences committed by taxi drivers against their passengers (see, for example, Deputy President McDermott in Re: Sadiq and Minister for Immigration and Border Protection [2016] AATA 463; Re: Singh and Minister for Immigration and Border Protection [2016] AATA 1040; and Senior Member Nikolic in Re: Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 264).

(Emphasis added.)

46    Accordingly, having regard to the seriousness of the visa applicant’s offending and the circumstances in which the offences were committed, the Tribunal concluded that the expectations of the Australian community weighed very heavily against the exercising the discretion to grant the visa: T [90].

Grounds of review

47    As mentioned above, the applicant challenges the Tribunal’s decision on four grounds of judicial review.

(a)    Ground 1 contends that it was irrational for the Tribunal to treat the visa applicant’s state of mind at the time that he committed the second offence in December 2011 as relevant to his risk of reoffending at the time of the Tribunal’s decision in April 2022, more than 10 years later.

(b)    Ground 2 is concerned with the manner in which the Tribunal evaluated and engaged with the representations and evidence bearing upon the visa applicant’s risk of reoffending.

(c)    Ground 3 alleges that the Tribunal denied procedural fairness to the applicant by failing to give her an opportunity to make submissions about the “values position” that was said to arise from previous Tribunal decisions involving sexual assault offences committed by taxi drivers.

(d)    Ground 4 relates to an alleged misconstruction by the Tribunal of para 9.4.2 of Direction 90, dealing with the impact on Australian business interests.

Ground 1: Irrationality or legal unreasonableness

48    It is settled that a discretionary power such as that conferred by s 501(1) of the Migration Act is subject to an implied condition requiring the power to be exercised reasonably: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88]-[94] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle and Gordon JJ), [131] (Edelman J).

49    The threshold to establish legal unreasonableness amounting to jurisdictional error is high, and involves more than mere (or even “emphatic”) disagreement with the manner or outcome of the exercise of the power: Li at [30] (French CJ), [108]-[109], [113] (Gageler J); SZVFW at [11] (Kiefel CJ), [135] (Edelman J). The Court’s supervisory role on judicial review is concerned with whether the power has been lawfully exercised, rather than directly with the factual merits of the particular case: see e.g. Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O’Callaghan JJ). As Gageler J noted in Li at [105] (quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47]), legal unreasonableness is “concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, and whether the decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. Whether or not a decision or an exercise of statutory power is legally unreasonable therefore involves the application of a legal standard, and is a question that admits of only one correct answer: see SZVFW at [18] (Kiefel CJ), [60] (Gageler J), [76], [85]-[87] (Nettle and Gordon JJ), [154]-[155] (Edelman J); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [25] (Allsop CJ, with whom Griffiths and Wigney JJ agreed).

50    In cases where the outcome of the exercise of a statutory power, or a critical finding on which the decision was based, is alleged to be legally unreasonable, it may be necessary to ask whether or not the decision-maker’s conclusion was open on the evidence and other material that was available to the decision-maker: see e.g. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ), observing that “[w]hilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker”.

51    Nevertheless, there may also be scope to challenge a decision where the reasoning process by which a conclusion was reached by the decision-maker is patently irrational or illogical, so as to be incapable of supporting that conclusion and therefore beyond the bounds of legal reasonableness, with the result that the decision is outside the limits of the relevant statutory power. In such circumstances, the legal reasonableness of the decision can be assessed by reference to the reasons given by the decision-maker, irrespective of whether or not the conclusion or outcome might have been reasonable if it were reached on a different basis or under different circumstances: see e.g. ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [127] (Edelman J), referring to Canada (Minister of Citizenship and Immigration) v Vavilov (2019) 441 DLR (4th) 1 at 70-71 [95]-[96], where the Supreme Court of Canada stated that “it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome”. Far from drawing the courts into the field of impermissible merits review, such an approach avoids the need for any judicial reconstruction of the basis for the administrative decision by reference to the underlying facts and the materials that were before the decision-maker.

52    In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47], the Court (Allsop CJ, Robertson and Mortimer JJ) referred to “the distinction made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power”. The Court stated that “where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was”, and whether there was an intelligible justification for the decision (at least in relation to the exercise of a discretionary power). Thus, the Court observed (at [45]):

Where there are reasons, and especially where a discretion is being reviewed, the Court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.

53    One consequence is that a decision will rarely be seen to be legally unreasonable in circumstances where the reasons given by the decision-maker demonstrate an intelligible justification for the way in which the power was exercised: Singh at [47]. In such cases, consistently with the limitations of the court’s supervisory role on judicial review, there is no occasion for the court to go outside the reasons given by the decision-maker in order to assess for itself whether the outcome of the exercise of power was justifiable or within the range of permissible outcomes. In other words, the intelligible justification for the decision will be evident from the reasons given by the decision-maker. Conversely, if the decision-maker’s reasons reveal an absence of any intelligible justification for the decision, such as where a central finding or conclusion is irrational or illogical, the court on judicial review is not called upon to search for a justification by asking itself whether the decision was nevertheless open or within the permissible range of outcomes on the material before the decision-maker. As the Court stated in Singh at [47], “either the reasons given by the decision-maker demonstrate a justification or they do not”.

54    The application of these principles is “invariably fact dependent” (SZVFW at [84] (Nettle and Gordon JJ); see also Singh at [48]), and “requires a close focus upon the particular circumstances of exercise of the statutory power” (Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ)). Further, as Allsop CJ noted in Stretton at [13], in the context of a challenge to the Minister’s conclusion on the respondent’s risk of reoffending and the protection of the Australian community for the purposes of a decision to cancel the respondent’s visa under s 501(2) of the Migration Act:

The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

55    Nevertheless, the usual constraints on judicial review must be kept in mind, including that there is no error of law simply in making a wrong finding of fact (Waterford v Commonwealth (1987) 163 CLR 54 at 77 (Brennan J)), and that the reasons of an administrative decision-maker should be read fairly and not with “an eye keenly attuned to the perception of error”, nor “seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ), referring to Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287 (Neaves, French and Cooper JJ) and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 (Spender, Foster and O’Loughlin JJ)).

56    In the present case, the applicant submitted that the Tribunal’s finding (at T [64]) that the risk of the visa applicant reoffending was “low” but “not negligible” lacked a rational foundation or probative basis, in that it was based in “large part” on the visa applicant’s state of mind when he committed the second offence in December 2011 — namely, his “willingness to sexually assault a stranger in his taxicab, while he was facing charges in relation to an earlier assault; and where he admitted, frankly, to the Tribunal, part of the impetus for his offending was that he thought she would not remember what had taken place or, if she did make a complaint, she would not be believed”. The applicant submitted that the visa applicant’s state of mind in December 2011 was not probative of his risk of reoffending more than 10 years later, and moreover did not affect Mr Simmons’ assessment of the level of that risk. Accordingly, notwithstanding any aggravating circumstances in relation to the offences committed by the visa applicant, the applicant had contended before the Tribunal that any risk that the visa applicant might reoffend was “very low” in the light of his subsequent rehabilitation and development in maturity.

57    To place the Tribunal’s finding in context, it is useful to summarise relevant aspects of the evidence and the parties’ contentions.

58    In her statement of facts, issues and contentions (Applicant’s SOFIC), the applicant accepted that the primary considerations of protection of the Australian community and the expectations of the Australian community under paras 8.1 and 8.4 of Direction 90 weighed against the grant of a partner visa to the visa applicant: Applicant’s SOFIC at [7]. However, the applicant contended that those considerations should be given “limited weight”, in the light of the visa applicant’s demonstrated rehabilitation and the significant change in his circumstances since he was sentenced: Applicant’s SOFIC at [27]-[29]. In particular, the applicant submitted that the weight to be given to those primary considerations turned on the risk of the visa applicant reoffending, and contended either that the visa applicant “will not reoffend, or that the risk is very low”, relying on the Simmons report: Applicant’s SOFIC at [28], [29]. In such circumstances, the applicant contended that the risk of offending was “sufficiently reduced” that the protection of the Australian community and the expectations of the Australian community were outweighed by other considerations, including the best interests of the applicant’s daughter, the visa applicant’s ties to Australia, and the difficulties that the visa applicant would face being separated from his family in India: Applicant’s SOFIC at [8].

59    The Minister’s statement of facts, issues and contentions (Minister’s SOFIC) relied on protection of the Australian community and the expectations of the Australian community as weighing “strongly” in favour of refusal, and outweighing any other considerations against refusal. The Minister emphasised the serious nature of the harm caused by the visa applicant’s offending, and submitted that there was an ongoing risk that the visa applicant would reoffend and that the Tribunal “should place limited weight on the Applicant’s submissions in relation to [the visa applicant’s] likelihood of reoffending”: Minister’s SOFIC at [36]-[37].

60    As mentioned above, the Simmons report addressed the visa applicant’s risk of reoffending by reference to the Static-99R assessment that had been conducted by Mr Cummins in February 2013 for sentencing purposes. While acknowledging that this tool was “now falling into disrepute” due to its “variable reliability”, Mr Cummins stated that the visa applicant had obtained a score of three, which placed him “at the lower end of the moderate risk category”. Mr Cummins had gone on to consider the “Risk for Sexual Violence Protocol”, which he said was the “currently preferred method of risk assessment for sexual offending”, and stated that he had assessed the visa applicant “as currently being in the low moderate range in terms of the risk of further sexual offending”.

61    In the Simmons report, Mr Simmons emphasised the period of time since the visa applicant was released from custody. He noted that, as at the time of his release, his Static-99R score placed him in the “average” risk category relative to other adult male sex offenders, stating that individuals with such characteristics “on average, sexually reoffend at 7.9% over five years after release from custody”. However, Mr Simmons stated that this risk reduces over “time spent in the community offence free”:

As a general guide, the risk of further offending halves every five years. That is, after five years, it is 50% of the original score and at 10 years, is 25% of the original score. Eventually, at approximately 17 to 18 years of being offence free, the risk of re-offending is the same as that for which first-time offenders commit offences.

Taking this into account, Mr Simmons concluded that “of the group that [the visa applicant] is a part of, his probability [of reoffending] would now be lower than 4%”, presumably on the basis that his risk assessment under Static-99R would have halved over the period since his release from custody. Further, having regard to the absence of any dynamic risk factors that would increase the likelihood of the visa applicant reoffending, Mr Simmons opined that the “lower than 4%” probability may be “overestimated”.

62    Mr Simmons maintained this opinion in the supplementary Simmons report, having taken into account the visa applicant’s past sexual relationship with a woman from New Zealand prior to the commission of the offences. Mr Simmons stated that, as that relationship had occurred before the visa applicant’s offending, it did not change any of the factors that were part of the Static-99R assessment, and that a past consensual relationship had little bearing in terms of the risk of future sexual offending.

63    At the Tribunal hearing, each of the applicant and the visa applicant gave evidence about the latter’s development in maturity and insight into his offending since his release from custody. Mr Simmons gave oral evidence in which he confirmed his opinion that the visa applicant’s risk of offending was “quite low”, given that it “was not … particularly high at the time of the initial assessment, as evidenced by Mr Cummins report”, and had “decreased further over the years that he’s been in the community”. Mr Simmons was cross-examined by the Minister’s legal representative about the relevance of the visa applicant’s state of mind at the time he committed the second offence in December 2011 to his opinion about the likelihood that the visa applicant would reoffend:

MR DULDIG: So do you recall him indicating to you that one of the reasons why he committed that offence was because he didn’t think there would be any consequences for it? --- I can’t honestly say I do, I’m sorry.

No, that’s okay. I mean, would that impact on your assessment of his insight into his offending if it was the case that it was this kind of opportunistic offence? --- Not in terms of risk of reoffending. It would certainly be a factor that you would then use for targeted treatment programs. The – certainly, if that’s his view at the time, that was his belief at the time, it’s not necessarily his belief now and unfortunately, I don’t have access to the Corrections Victoria reports on his involvement in the program so I don’t really know where that goes or how that was addressed.

Thank you. And finally, does the fact that the applicant committed the first offence and was then arrested for it and then committed the second offence having already been arrested and charged with the first offence, does that have any bearing on your assessment of the risk that he will reoffend? --- Not in the long term. Certainly it had an explanation of why this – what you were saying before may have an explanation as to why the second offence occurs but the actuarial – the process looks at what has happened subsequent and at the time there may have been differing views about his prospects for rehabilitation but we’re now seven and a half years down the track and we’ve actually sort of seen which of those assessments of his prospects for rehabilitation appears to be the right one.

(Emphasis added.)

64    In response to questions from the Tribunal, Mr Simmons confirmed that the predatory and opportunistic nature of the visa applicant’s behaviour did not change his assessment of the risk of reoffending, stating that “although it’s predatory we look at behaviour that is planned as being more significant than behaviour that’s impulsive” or that involves “a failure of the mechanisms of impulse control”. Mr Simmons also agreed with the Tribunal’s summation of his evidence as —

essentially saying … you’d be in a different position if you were in Mr Cummins’ role but your role is a different one and looking back, you feel as if you’re in a position to be able to say, well look, the circumstance of his life now explain adequately why the risk is what it is and as you say, indicate of the number of pathways that might have been open at the time of sentencing if you like, clearly this is the one that was likely to have the best impact or has had in your view – not demonstrable but gives you a confidence level …

65    It may be noted in passing that the Tribunal was reconstituted after the second day of hearing, however directions were made permitting the newly constituted Tribunal to have regard to the transcript of the first two days of hearing, together with the evidence previously admitted in the proceeding.

66    It was against that background that the Tribunal came to address the question of the visa applicant’s risk of reoffending, in the context of the risk to the Australian community should the visa applicant commit further offences or engage in other serious conduct (see para 8.1.2 of Direction 90). Together with the nature and seriousness of the visa applicant’s conduct to date (para 8.1.1), this was one of two matters going to the primary consideration of protection of the Australian community: Direction 90, para 8.1(2). For such purposes, the risk to the Australian community was to be assessed by having regard “cumulatively” to the nature of the harm should the visa applicant engage in further criminal or other serious conduct, and the “likelihood” of the visa applicant engaging in such conduct: para 8.1.2(2). The assessment of that likelihood required consideration of any “information and evidence on the risk of the non-citizen reoffending” and any “evidence of rehabilitation achieved by the time of the decision”, giving weight to time spent in the community since the most recent offence: para 8.1.2(2)(b).

67    In support of her submission that the Tribunal’s finding on the visa applicant’s risk of reoffending was irrational and unreasonable, the applicant relied on the decision in CKL21 v Minister for Home Affairs (2022) 293 FCR 634. In that case, the Minister had personally decided under s 501CA(4) of the Migration Act not to revoke the mandatory cancellation of the appellant’s visa under s 501(3A) of that Act. The Full Court (Moshinsky, O’Bryan and Cheeseman JJ) concluded that the Minister had erred “by making irrational findings of fact, or making findings that were legally unreasonable, about the appellant’s future risk of reoffending”: CKL21 at [4(b)], [5]. The Minister had made a finding that there was an ongoing risk that the appellant would reoffend, and that the possibility of further offending could not be “ruled out”, observing that, while the appellant had “made progress at rehabilitation”, his conduct had not been tested in the general community, and that the Minister “remain[ed] guarded” about the risk of him relapsing into substance abuse if released into the community: CKL21 at [41]-[42]. The appellant argued that these findings were contrary to uncontradicted expert evidence that the appellant presented a minimal risk of reoffending and was not an unacceptable risk to the community: CKL21 at [50].

68    The Full Court recognised in CKL21 at [65] that factual findings and associated reasoning in an administrative decision may be subject to review for jurisdictional error if “true irrationality” is shown. Although the Minister or the Tribunal is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm is sufficiently serious, this does not mean that findings with respect to the risk of an applicant reoffending are beyond judicial review, including on the ground that they are without any logical or probative basis: CKL21 at [68], and the cases cited therein. The Court noted that a finding that there is a risk that a non-citizen might reoffend ought to be understood as a finding that the non-citizen “posed a risk of reoffending that was greater, in a more than immaterial way, than the risk of the ordinary person residing in Australia committing the offence” in question — otherwise, there would be no rational basis on which to make a finding that such a risk was unacceptable: CKL21 at [71]. Further, the need for a probative basis for a finding of a risk of reoffending is heightened in circumstances “where there is a wealth of evidence supporting a contrary finding”: CKL21 at [72]. Referring to the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575, the Court described the task of a decision-maker in assessing the risk of future events as follows (at [74]):

In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk “cannot be ruled out” does not, of itself, logically establish the existence of a risk. Further, as the above passage of the plurality in Guo indicates, a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.

69    On the particular facts in CKL21, the Court held that there was no probative basis for the Minister’s finding that there was an ongoing risk that the appellant would reoffend. There was a wide range of facts and circumstances that suggested that the risk of the appellant reoffending was “highly unlikely, if not non-existent”: CKL21 at [82]. The Minister’s reasons referred to only two matters that could possibly be relied on to support his finding that there was a risk of the appellant reoffending — first, that the appellant had committed the past offence while he was on bail for other offences, which had been viewed by the sentencing judge as indicating a disregard for the law and undermining confidence in his rehabilitation (at the time of his sentencing); and second, that the Minister was “guarded” about the prospect of the appellant relapsing into substance abuse: CKL21 at [83]-[85]. However, the Court did not regard either of these matters as providing a probative basis for the finding that, as at the time of the Minister’s decision, there was an ongoing risk that the appellant would reoffend. The reasons did not connect the sentencing judge’s remarks to the Minister’s assessment of the appellant’s risk of reoffending, and did not consider the ongoing relevance of those remarks “in light of the passage of time”: CKL21 at [84]. And the Minister’s reasons did not provide any basis for a finding that the appellant was at risk of relapsing into drug or alcohol abuse which might provide a foundation for a finding that he was a risk of reoffending: CKL21 at [85]. In such circumstances, the Minister’s conclusion that there was an ongoing risk that the appellant would reoffend was described by the Court as “speculative, based on mere conjecture or supposition unsupported by evidence”, and as lacking an evident and intelligible basis: CKL21 at [86].

70    In the present case, the applicant submitted that the reasoning by which the Tribunal reached its conclusion that the risk of reoffending was “not negligible” was irrational or unreasonable, in that it was based on the nature of the second offence committed by the visa applicant and his state of mind at the time that he committed that offence, without any connection to the visa applicant’s present state of mind or his current attitudes towards sexual offending. The applicant submitted that the Tribunal did not make any finding that the visa applicant presently believed that he could commit a sexual offence if it were without consequence, nor that he suffered from any sexual deviancy or that his impulse control was such that he might succumb to such thinking in the future. On the contrary, the visa applicant had not reoffended since 2011, and there was evidence that he had since matured and developed insight into the consequences of his conduct and the impact on the victims.

71    The Minister submitted that the Tribunal’s findings in relation to risk to the Australian community must be read as a whole, together with its findings about the nature and seriousness of the visa applicant’s criminal offending. The Minister submitted that the conclusion that the risk of reoffending was “not negligible” was consistent with the evidence of Mr Simmons, and that the Tribunal had not limited its assessment to the visa applicant’s state of mind at the time of offending without any reference to current circumstances. In particular, the Minster argued that the visa applicant’s evidence about his present understanding of and insight into his offending did not wholly assuage the Tribunal’s concerns surrounding his motives for committing the second sexual assault, and the Tribunal rejected the visa applicant’s claims that his offending was explained by a lack of cultural awareness or his inexperience with women. Those concerns were based on recent circumstances, including the visa applicant’s statements to the Department made in 2021, and his lack of candour when interviewed by Mr Simmons in 2021 about the history of his personal and sexual relationships.

72    The Minister submitted that the decision in CKL21 was distinguishable from the facts of the present case, in which the Tribunal’s findings about the risk of the visa applicant reoffending were based on the evidence and were not “mere speculation”. In the Minister’s submission, the decision in CKL21, “broadly speaking, stands for the proposition that it is a logical fallacy to conclude that a fact has been proved because it has not been disproved”. In the present case, the Minister submitted that the applicant “has not pointed to any evidence which suggests that the only conclusion open on the known material was that the risk of re-offending was an acceptable one”.

73    The latter submission made by the Minister mischaracterises the basis on which the applicant challenges the Tribunal’s conclusion. The present case is not one in which it is argued that only one conclusion was rationally open on the material before the Tribunal, for example that there was no risk, or only a negligible risk, that the visa applicant would reoffend in the future. The expert opinion of Mr Simmons was that the risk was “low” or “quite low”, which was expressed as being less than (and perhaps significantly less than) 4%. But it is not necessarily inconsistent with that evidence to characterise such a risk as “not negligible”. It was implicit in Mr Simmons’ evidence that the risk of the visa applicant reoffending remained higher than an ordinary member of the general community, bearing in mind his explanation that it would take “approximately 17 to 18 years of being offence free” before the risk was reduced to “the same as that for which first-time offenders commit offences”.

74    However, the applicant’s contention is not that the conclusion reached by the Tribunal on the visa applicant’s risk of reoffending was not open or was one that no reasonable decision-maker could reach, but rather that such a conclusion lacked a logical and probative basis. The Tribunal ostensibly accepted the professional opinion of Mr Simmons, including his opinion that the visa applicant was a “low risk” of reoffending having regard to his current circumstances. But the Tribunal qualified that finding with its conclusion that such a risk was “not negligible”, and did so in “large part” by reference to the circumstances of the second sexual assault committed by the visa applicant and his admissions concerning the “impetus” for committing that offence. The fact that this was treated by the Tribunal as a qualification on its acceptance of Mr Simmons’ opinion is indicated by the use of the word “[h]owever” before expressing its conclusion that the risk was not negligible.

75    Notwithstanding that such a conclusion did not involve a rejection of Mr Simmons’ evidence, it nevertheless involved a rejection of the applicant’s contention that the Tribunal should find that the visa applicant’s risk of reoffending was “very low” or that he would not reoffend, which in substance was a submission that any risk of reoffending ought to be regarded as negligible. That submission relied on the evidence given by the applicant and the visa applicant respectively, together with the expert evidence of Mr Simmons. In relation to the latter, the applicant had argued in closing submissions that “forensic psychologists can go no further than low professionally” and that they were unable to “provide a guarantee”. Accordingly, the applicant pressed the submission that there was “good reason to be confident that [the visa applicant] is in the category of a person that won’t reoffend”. The Tribunal’s finding that the risk was “not negligible” was essentially its rejection of that contention.

76    Accordingly, the question is whether the Tribunal provided a logical or probative basis for its conclusion that the risk that the visa applicant would reoffend was “not negligible”. The basis that was expressed by the Tribunal for that conclusion had two elements, each of which was related to the visa applicant’s state of mind when he committed the second sexual assault in December 2011:

(a)    first, that he was willing to commit such an offence while facing charges in relation to the earlier assault; and

(b)    second, that the “impetus” for committing that offence was the belief that, because of the victim’s state of intoxication, either she would not remember what had taken place, or any complaint made by her would not be believed.

77    It may be accepted that each of those matters was relevant to the nature and seriousness of the visa applicant’s criminal offending. In his evidence to the Tribunal, the visa applicant had conceded that those matters were aggravating factors in relation to the seriousness of the second offence. However, it is difficult to see how either of those matters were themselves relevant to or probative of the risk that the visa applicant might reoffend in the future. Moreover, the only contemporaneous expert evidence before the Tribunal about the effect of such matters on the assessment of the risk of reoffending was that the visa applicant’s reasons for committing the second offence in December 2011 had no bearing on his risk of reoffending.

78    In such circumstances, it was neither rational nor probative for the Tribunal to rely on the visa applicant’s reasons or motivations in committing the second sexual assault in December 2011 as supporting a conclusion about the level of risk of the visa applicant reoffending as at the time of the Tribunal’s decision, having regard to the evidence that was before the Tribunal in relation to the visa applicant’s rehabilitation since that offence was committed and since he was released from custody.

79    Thus, while it was open to the Tribunal to have regard to the visa applicant’s state of mind at the time of the second offence when it considered the nature and seriousness of the visa applicant’s criminal conduct (see T [41]), and when exercising the discretion whether to refuse to grant a partner visa to the visa applicant (see T [115]), it was illogical and irrational to regard that as a “large part” of the basis for its finding about the visa applicant’s risk of reoffending (that is, the likelihood of him engaging in further criminal or other serious conduct) for the purposes of para 8.1.2(2)(b) of Direction 90. The Tribunal’s decision was therefore affected by legal unreasonableness.

80    The Minister conceded that, if the Tribunal’s conclusion at T [64] were found to be legally unreasonable, illogical or irrational, that error would be material to the Tribunal’s decision. That concession was properly made. If the Tribunal had not erred by treating the visa applicant’s past state of mind as the basis for its conclusion about his risk of reoffending, there is a realistic possibility that the Tribunal’s decision might have been different, in that the Tribunal might have accepted the applicant’s contention that the visa applicant would not reoffend or that the risk of the visa applicant reoffending was so low as to be negligible. If there were no risk or only a negligible risk of reoffending, it is difficult to see how the primary consideration of protection of the Australian community could be given any significant weight in favour of refusing the visa.

81    In other words, irrespective of the nature of the harm that would be caused by further offending, in circumstances where there is no real likelihood of the non-citizen engaging in further criminal or other serious conduct, the risk to the Australian community for the purposes of para 8.1.2 of Direction 90 (that is, the “combination of likelihood and gravity” that was referred to as “overall risk” by Bromberg J in BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 at [29]) would be insignificant. It would be an abstract risk. While the protection of the Australian community also requires consideration of the nature and seriousness of the non-citizen’s criminal offending or other conduct to date (see paras 8.1(2)(a) and 8.1.1 of Direction 90), the focus of this consideration remains protective rather than punitive: compare Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [37] (Flick, Griffiths and Perry JJ). Of course, the seriousness of past criminal conduct may itself remain relevant and be given weight in the context of other considerations, such as the expectations of the Australian community (para 8.4), and in the exercise of the discretion under s 501(1) whether to refuse to grant the visa.

82    In the present case, but for the Tribunal’s conclusion that the risk of the visa applicant reoffending was “not negligible”, there is at least a realistic possibility that the Tribunal would not have found that the primary consideration of protection of the Australian community weighed “very heavily” against exercising the discretion to grant a partner visa to the visa applicant. This in turn could have affected the evaluative exercise involved in the assessment of the relative weight to be attached to each of the primary considerations and the other relevant considerations under Direction 90: see generally LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610; TPTN v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 244 at [55]-[63] (Collier ACJ, Meagher and Horan JJ). Accordingly, the Tribunal’s decision was affected by jurisdictional error.

Ground 2: The Tribunal failed to consider the applicant’s representations regarding the visa applicant’s risk of reoffending

83    The applicant alleges that the Tribunal fell into jurisdictional error by failing to identify, understand and evaluate two sets of representations or evidence about the visa applicant’s risk of reoffending:

(a)    first, the applicant’s evidence that the visa applicant would not reoffend because, since his release from custody, he had matured and shown respect for women in his work as a restaurant manager, and that he would not jeopardize the life that he had built by reoffending; and

(b)    second, the opinions expressed by Mr Simmons that the visa applicant’s attitude at the time that he committed the second sexual assault did not affect his risk of reoffending, and that the visa applicant’s previous state of mind was not a risk factor, particularly given his extended period of time in the community.

84    The applicant submitted that it should be inferred that the Tribunal overlooked this evidence, in circumstances where it was not referred to or addressed in the written statement of reasons, and where the evidence was cogent and critical in relation to the question whether there was an ongoing risk that the visa applicant might reoffend.

85    The Minister accepts that, in exercising the power to refuse or to cancel a visa under s 501(1) of the Migration Act, the decision-maker is required to consider and understand any representations made by the person affected by the decision. Although s 501(1) does not include an express procedure for the person affected to make “representations”, this Court has previously held that the approach set out in cases concerning s 501CA(4) is applicable in the context of decisions made under s 501(1): see GNRK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 292 FCR 262 at [77] (Rangiah, Markovic and Snaden JJ); NRWQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 950 at [27]-[31] (Button J).

86    In relation to s 501CA, which confers power to revoke a decision to cancel a visa under s 501(3A), the High Court has held that the Minister must consider and understand the representations about revocation of the original decision that are received in accordance with an invitation to make such representations: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [13] (Keane, Gordon, Edelman, Steward and Gleeson JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [9], [24] (Kiefel CJ, Keane, Gordon and Steward JJ). Nevertheless, that obligation does not require the Minister “to make actual findings of fact as an adjudication of all material claims made by an applicant” (Viane at [14]), nor does it mean that every statement within the representations must itself be treated as a mandatory relevant consideration (Plaintiff M1 at [23]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [41] (Besanko, Barker and Bromwich JJ)). The “requisite level of engagement” with the representations will depend on their nature, form and content, and will vary according to their length, clarity and degree of relevance: Plaintiff M1 at [25]. Among other things, “the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them”: Plaintiff M1 at [24]. But it remains a matter for the decision-maker to determine the appropriate weight to be afforded to the representations.

87    More generally, jurisdictional error can arise “if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument”: Plaintiff M1 at [27], citations omitted.

88    In the present case, the applicant’s witness statement dated 17 December 2021 set out her firm belief that the visa applicant would not reoffend, stating that he was “very aware now of the Australian culture and clearly what is acceptable behaviour”, that he was “very shamed and remorseful for what he did”, that he had “matured significantly over the past 10 years”, and that he had “learned very strong lessons and [was] respectful and aware of how to treat ladies and all people respectfully and appropriately”. The applicant confirmed such matters in her oral evidence to the Tribunal, stating that the visa applicant had matured and developed respect for people, particularly in relation to his career as a restaurant manager, and that she did not believe that the visa applicant would jeopardise his family and career by reoffending.

89    In so far as the evidence set out above was directed to the visa applicant having developed an awareness of Australian culture, it may be noted that the Tribunal did not accept that his past offending was explained by any lack of cultural awareness: T [56]. That finding diminished the significance of any claim that the visa applicant had acquired or developed a greater awareness of Australian culture since the commission of the offences.

90    The Tribunal clearly had regard to the Simmons report and the Simmons supplementary report, in which the visa applicant’s personal history was addressed in detail. Those reports recounted the visa applicant’s acknowledgments that his past behaviour was wrong and his attempts to make a productive life for himself away from any further offending, including his employment as a manager in the hospitality industry. Such matters informed Mr Simmons’ opinion that the visa applicant was now a low risk of reoffending, which was accepted by the Tribunal. The Tribunal also accepted as a “significant preventative factor” that the visa applicant was “now in a stable and, on the evidence before the Tribunal, a happy marriage”: T [64] (emphasis added), and see also T [99]-[100], [106], [108].

91    More generally, the Tribunal specifically referred to the applicant’s witness statements as exhibits that had been tendered in evidence by the parties (T [5]), and also admitted into evidence the transcript of the preceding hearing days (T [6]).

92    In the circumstances, there is no basis on which to draw an inference that the Tribunal “overlooked” the evidence that had been given by the applicant in relation to the visa applicant’s risk of reoffending. The Tribunal was not required to refer to and make specific findings on every issue that was raised in the applicant’s written and oral evidence: see e.g. Buadromo at [48]-[49]. The Tribunal’s reasoning in relation to the risk to the Australian community may be open to criticism for its heavy focus on the visa applicant’s past attitudes at the time that he committed the offences, but this was not to the exclusion of any appreciation of his current circumstances. A different decision-maker might have given greater weight to the visa applicant’s rehabilitation and the applicant’s belief, informed by her lengthy relationship with the visa applicant, that he would not reoffend. Nevertheless, on balance, I consider that the Tribunal understood and sufficiently engaged with the matters that were addressed in the applicant’s evidence.

93    The second limb of this ground of review alleges that the Tribunal did not have regard to Mr Simmons’ evidence that the visa applicant’s attitude at the time of his offending did not affect his future risk of reoffending. This aspect of Mr Simmons’s evidence is discussed above in relation to Ground 1. For the reasons set out above, I have found that there was no rational or probative basis for the Tribunal to rely on the visa applicant’s state of mind at the time that the offences were committed in order to support its conclusion that his current risk of reoffending was “not negligible”. That is partly because such reliance was contrary to the evidence given by Mr Simmons on that point, and does not find support in any other evidence before the Tribunal. However, this does not necessarily mean that the Tribunal “overlooked” Mr Simmons’ evidence in this regard, nor that it thereby failed to consider and understand the representations made by the applicant or the visa applicant in favour of exercising the discretion to grant the partner visa.

94    Accordingly, I would dismiss Ground 2.

95    For completeness, I note that the Minister submitted that any failure by the Tribunal to have regard to the applicant’s representations or Mr Simmons’ opinions in relation to the risk of reoffending was not material to its decision to affirm the refusal of the partner visa, because the Tribunal in any event accepted Mr Simmons’ assessment that there was a “low” risk that the visa applicant would reoffend. In circumstances where the Tribunal proceeded to characterise that risk as “not negligible”, a description that appears to have been regarded by the Tribunal as qualitatively different to a “low” risk, it may be difficult to conclude that there was no realistic possibility that the Tribunal’s decision might have been different if the alleged error had not occurred. In this regard, I do not consider that it is possible to reformulate the Tribunal’s conclusion that the risk of reoffending was “not negligible” as merely espousing a view that “even a low risk of reoffending” was not tolerable or acceptable, as the Minister sought to argue. However, in the light of my conclusion on Ground 2, it is unnecessary to express a concluded view on the question of materiality in relation to this ground.

Ground 3: Procedural fairness

96    The applicant submitted that the Tribunal failed to afford her procedural fairness in relation to its finding that the primary consideration of the expectations of the Australian community weighed very heavily against exercising the discretion to grant the partner visa, by taking into account that the Tribunal had in other cases “consistently taken a bleak view of sexual assault offences committed by taxi drivers against their passengers”: T [89]. In support of that observation, the Tribunal referred to three past decisions of the Tribunal, while acknowledging that “each case must properly be considered in the context of its individual circumstances”.

97    The three past administrative decisions referred to by the Tribunal do not in terms express any general norm that sexual assaults by taxi drivers should be treated seriously. One was a previous decision made by the same member to affirm a decision to refuse to grant a partner visa to the applicant on character grounds: Singh and Minister for Immigration and Border Protection (Migration) [2016] AATA 1040 (Singh (AAT)). In that decision, the Tribunal (at [62]-[65]) emphasised the position of trust in which taxi drivers were placed in connection with the expectations of the Australian community, and referred to another decision of the Tribunal (Sadiq and Minister for Immigration and Border Protection (Migration) [2016] AATA 463) in which an offence committed by a taxi driver had been considered in the context of the question whether the applicant was of good character for the purposes of an application for Australian citizenship. The Tribunal in the present case also referred to Sadiq, together with a more recent decision in Singh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 264, in which the Tribunal at [114] referred to the “position of power” held by a taxi driver over a victim and cited the earlier decision in Singh (AAT).

98    It is common ground that the Tribunal was required to comply with the requirements of procedural fairness, which included an obligation to put the applicant on notice of any critical issue that was not apparent from the terms of the Migration Act and Direction 90, and any adverse conclusion that was not obviously open on the known material before the Tribunal: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 (Northrop, Miles and French JJ).

99    The Minister submitted that the Tribunal was not required to disclose its mental processes or provisional views before making its decision, nor to provide a running commentary on what it thought about the evidence: Alphaone at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). The Minister noted that, in the course of the hearing before the Tribunal, it had been specifically put to the visa applicant in cross-examination that his offending was made more serious because he was a taxi driver who had been entrusted with the safe passage of the victims to their destination. The visa applicant stated that he “definitely” agreed with the sentencing judge that this made both of his offences more serious. In its reasons for decision, the Tribunal referred to the relevant sentencing remarks (T [30]) and to the visa applicant’s concession in cross-examination (T [38]). The Minister submitted that this was sufficient to discharge the Tribunal’s procedural fairness obligations, and that it was not required to refer the applicant or the visa applicant to the past decisions that were later referred to in its written reasons.

100    It does not appear that the Tribunal put the applicant on notice that there was a line of past decisions in which a “bleak view” had “consistently” been taken in relation to a particular category of offenders, namely, taxi drivers who committed sexual assaults against their passengers. In so far as this was regarded by the Tribunal as establishing a normative standard or policy of general application (or what was characterised in the applicant’s submissions as a “values position”), it might be argued that the applicant ought to have been given an opportunity to be heard on whether or how that standard or policy should be applied to the facts of the particular case.

101    However, although not without some reservations, I do not consider that the Tribunal’s reliance on the past decisions, or its reference to the “bleak view” taken in relation to sexual assaults by taxi drivers against their passengers, gave rise to a denial of procedural fairness in the circumstances of the present case.

102    It was readily apparent to both the applicant and the visa applicant that significance was placed on the nature of the visa applicant’s offending as having involved a breach of trust in his role as a taxi driver. That had been highlighted by the sentencing judge as one of the “aggravating features” of the offences, and was acknowledged and addressed in the Applicant’s SOFIC (at [31]), the visa applicant’s witness statement dated 20 December 2021 (at [5]), and the Simmons’ report (at [18]). The Minister’s SOFIC (at [20]) referred to and relied upon the sentencing remarks as relevant to the objective seriousness of the visa applicant’s offending. As well as putting these matters to the visa applicant in cross-examination, the Minister’s legal representative relied on the sentencing remarks in closing submissions, including that “as a taxi driver, both of the visa applicant’s victims were entitled to feel safe” and that “the visa applicant breached that trust in a way that was described by the sentencing judge as most despicable”.

103    In referring to the “bleak view” that had been taken of sexual assault offences by taxi drivers, the Tribunal was doing no more than taking into account the trust that is placed by passengers in their taxi drivers to deliver them safely to their destination, and the impact of a betrayal of that trust on the seriousness of the offences for the purposes of considering the expectations of the Australian community. Each of the applicant and the visa applicant had a fair opportunity to be heard on the significance of those matters in the individual circumstances of the present case. The previous decisions to which the Tribunal referred did not raise any critical issue that was not already apparent to the applicant, and did not involve any conclusion that was not obviously open on the material before the Tribunal. Accordingly, there was no denial of procedural fairness. Ground 3 is dismissed.

Ground 4: Misconstruction of para 9.4.2 of Direction 90 regarding impact on Australian business interests

104    Paragraph 9(1)(d)(ii) of Direction 90 requires decision-makers under s 501(1) to take into account the “impact on Australian business interests” for the purposes of the consideration of “links to the Australian community”. This is elaborated in para 9.4.2 as follows:

Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

105    The applicant expressly conceded before the Tribunal that this consideration was not engaged in the circumstances of the present case, on the basis that “the decision will not impact Australia’s [sic] business interests”: Applicant’s SOFIC at [9]. The Minister also contended that no weight should be placed on this consideration, noting that the applicant “does not contend that this consideration is of relevance nor does the evidence currently available indicate that an assessment of this consideration is necessary”.

106    In her oral evidence to the Tribunal on the first day of the hearing, the applicant made passing references to the fact that her Australian business had recently acquired a new account, and that the visa applicant had an opportunity to help the applicant in her business in connection with that new account, which would “take a lot of the pressure off me with the growth of the business”. The applicant gave evidence to similar effect when she was recalled on the final day of the hearing, stating that her husband would relieve a lot of pressure and “help with the scale of the business growth”, by having his support as a service agent to assist with the business operations.

107    Nevertheless, in closing submissions before the Tribunal, the applicant’s counsel made no reference to the impact on Australian business interests. The Minister’s legal representative relevantly submitted that “[f]or completeness, in terms of the remaining considerations, there’s no evidence that the Tribunal needs to make an assessment of the impact of a refusal decision on Australia’s [sic] business interests”, so that the Tribunal did not need to make any assessment under that other consideration. The Tribunal proceeded to take this matter up directly with the applicant’s counsel, inviting him to make any submission in response. The applicant’s counsel stated:

[T]he way it’s argued about [the visa applicant’s] capacity to assist [the applicant] with her business is relevant, is in terms of the consideration of ties to Australia and the impact of separation on [the applicant]. In terms of how she expressed it today, if [the visa applicant] is not here there’s less opportunity for her rather than financial hardship, that is, less opportunity possibly to grow the business. For that reason it’s not submitted that it falls into the terms of clause 9.4.2 which speaks of compromise to a major project or important service to Australia.

(Emphasis added.)

108    The Tribunal acknowledged the applicant’s position, stating that “[t]hat doesn’t mean it can’t be considered elsewhere in terms of the impact on the review applicant”, but that the Tribunal accepted the applicant’s submission “in terms of the wording in the direction”.

109    Accordingly, in its reasons for decision, the Tribunal dealt with paras 9.1(d)(ii) and 9.4.2 of Direction 90 as follows (T 101]-[103]):

Sub-consideration: Impact on Australian business interests

The Tribunal must consider any impact on Australian business interests if [the visa applicant] is not allowed to enter Australia, noting that an employment link would generally only be given weight where the decision under section 501 would significantly compromise the delivery of a major project or an important service in Australia.

[The applicant] is the director of a relatively substantial business in Australia. [The visa applicant] worked for this business before he formed a romantic relationship with [the applicant] and she advised the Tribunal he would be able to resume a position with this company in the event he was granted a visa. However, his plan is to establish his own restaurant or café, having worked as a restaurant manager in Singapore. The Tribunal is not satisfied that the denial of a visa to the Visa Applicant would have a significant impact on a major project or the delivery of an important service in Australia.

This sub-consideration is therefore found to weigh neutrally.

110    Overall, having regard to its findings on the strength, nature and duration of the visa applicant’s ties to Australia, the Tribunal found that the consideration relating to links to the Australian community weighed “relatively strongly” in favour of exercising the discretion to grant the visa: T [104], [111].

111    Before this Court, the applicant now contends that para 9.4.2 of Direction 90 permits consideration of any Australian business interest, and is not restricted to business interests that involve an impact on a major project or service: see Singh v Minister for Home Affairs [2019] FCA 905 at [10]-[11] (Middleton J); Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [67]-[71] (Rangiah J); Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179 at [29]-[35] (SC Derrington J); Ross v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 734 at [32]-[35] (Meagher J); Tabuarua v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 748 at [101]-[102] (Rangiah J); Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802 at [19] (Thawley J); Luckman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 851 at [28]-[36] (Derrington J); compare Kim v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 294 at [11]-[12] (Jackman J).

112    In each of those cases, it was held that there is a requirement under para 9.4.2 (and its analogues in other versions of the Ministerial direction) to consider any impact on Australian business interests, which is not confined to impacts on the delivery of a major project or an important service in Australia. The qualification about giving weight to an “employment link” only where the decision would significantly compromise the delivery of a major project or delivery of an important service in Australia does not limit the general requirement to consider any impact on Australian business interests, irrespective of the scale or importance of the business, if the non-citizen is not allowed to enter or remain in Australia. As Rangiah J subsequently stated in Tabuarua (at [102]):

Whether any such impact compromises the delivery of a major project or an important service in Australia is a matter affecting the weight to be given to that consideration, not a prerequisite for its application. Accordingly, where there is a clearly articulated submission that the removal of the person from Australia will have an impact on even a small business, the Tribunal is required to consider any such impact.

113    For the following reasons, I do not consider that the Tribunal erred in its application of para 9.4.2 of Direction 90 to the circumstances of the present case. To the extent that the Tribunal might have proceeded on the basis of an erroneous construction of that paragraph, albeit one based on submissions that had been advanced by the applicant, I do not consider that any such error would have been material to the Tribunal’s decision.

114    The effect of the evidence given by the applicant about the opportunity for the visa applicant to assist in her business, including by relieving her of pressure associated with the growth of her business through the acquisition of a new client, was essentially that the visa applicant would be able to work on a daily basis as a service agent for the business. As the applicant said in her evidence, “it’s just having his extra support to be able to go out and help with operations and to help with on the field doing the services as well”. This essentially amounted to a claimed impact on the applicant’s business by reason of a potential “employment link”, that is “a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa”: Arachchi at [70] (Rangiah J). In circumstances where it was not claimed that the visa applicant’s employment was significant to the delivery of a major project or an important service in Australia, any impact on the applicant’s business arising from the loss of his services was capable of being remediated by the engagement of another employee: see Luckman at [34] (Derrington J).

115    There was no clearly articulated claim made by the applicant that a decision to refuse to grant a partner visa would have any impact on the applicant’s business in Australia, apart from the denial of his services as an employee. That is, the only claim raised by the evidence was one based on an employment link, which is only given weight if the decision would significantly compromise the delivery of a major project or delivery of an important service in Australia. The applicant conceded that this was not applicable in the present case, and the Tribunal accepted that submission “in terms of the wording in the direction”. Even accepting that the existence of such an employment link did not relieve the Tribunal of its obligation to consider any impacts on Australian business interests (see Arachchi at [69]), there was no evidence before the Tribunal to suggest that there would be any impacts on the applicant’s business or her opportunity to grow that business, let alone that any such impacts would cause “some substantial detriment, extending beyond damage to a particular business” (see Luckman at [36]).

116    The concession made by the applicant’s counsel before the Tribunal is also relevant in considering whether any claim under para 9.4.2 of Direction 90 was clearly articulated or clearly arose on the material before the Tribunal. The applicant now submits that this concession was made in error. It might be said that the concession reflected a correct understanding of para 9.4.2, given that the claim in relation to the impact of the decision on the applicant’s business was directed to the visa applicant’s potential engagement as an employee. In any event, the position is distinguishable from that considered in Tonga at [32], where the impact on Australian business interests was not raised by the applicant in submissions but where such a claim clearly emerged from the written and oral evidence to which the Tribunal had referred. In the present case, in circumstances where the applicant had disclaimed any reliance on this consideration and the evidence did not support an application of para 9.4.2, it can hardly be said that the Tribunal erred by failing to deal with a claim that was not raised on the materials.

117    The Tribunal directly addressed the evidence in relation to the impact of the decision on the applicant’s business: T [102]. The Tribunal accepted that the visa applicant had previously worked for the business, and that the applicant had indicated that he would be able to resume a position with the company in the event that he was granted a visa. The Tribunal found, however, that the visa applicant planned to establish his own restaurant or café, that is, rather than work for the applicant’s business, at least in the longer term. Further, the Tribunal was not satisfied that a decision to refuse to grant a partner visa would have a significant impact on a major project or the delivery of an important service in Australia.

118    It is not clear how this reasoning can be said to have involved any misconstruction or misapplication of para 9.4.2 of Direction 90. The Tribunal considered whether its decision to refuse to grant a visa would have any impact on the applicant’s business interests, summarising the effect of the evidence given by the applicant and the visa applicant respectively. The Tribunal’s finding that the decision would not have a significant impact on a major project or the delivery of an important service in Australia was pertinent, in so far as the applicant claimed any impact on her business by reason of an employment link, and was consistent with an express concession to that effect made by the applicant. The Tribunal recognised in the course of the hearing that a conclusion that the impact did not fall within para 9.4.2 did not mean that the impact was unable to be taken into account in terms of the impact of the decision on the applicant, which was separately addressed by the Tribunal as an “additional” consideration.

119    Accordingly, the Tribunal’s findings under para 9.4.2 of Direction 90 did not involve any legal error.

120    Further or alternatively, even if the Tribunal erred by requiring the demonstration of a significant impact on the delivery of a major project or an important service in Australia, any such error was not material to the Tribunal’s decision in circumstances where the only claimed impact on the applicant’s business was through an employment link and the applicant conceded that the terms of para 9.4.2 in respect of such an employment link were not met. In other words, if the Tribunal had correctly understood that para 9.4.2 is not confined to circumstances in which the delivery of a major project or an important service in Australia might be significantly compromised (assuming that it did not in fact do so), there is no realistic possibility that this would have made any difference to its decision — both as to its finding that the impact on Australian business interests had neutral weight and as to its finding that the visa applicant’s links to Australia weighed “relatively strongly” in favour of exercising the discretion to grant the visa. Accepting the relatively undemanding threshold of materiality that has been adopted in relation to the evaluative exercise involved in the application of Direction 90 (see e.g. LPDT at [14], [35], [49]), the errors that are alleged by the applicant were immaterial on the facts as found by the Tribunal.

121    Ground 4 is therefore dismissed.

Conclusion

122    As I have upheld Ground 1 of the application, the Tribunal’s decision should be set aside, and the matter should be remitted to the Tribunal to be redetermined according to law. The Minister should pay the applicant’s costs.

Associate:

Dated:    28 November 2024