Federal Court of Australia

Liao v Minister for Immigration and Multicultural Affairs [2025] FCA 412

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time is granted.

2.    A writ of certiorari issue to quash the decision of the respondent dated 10 November 2023.

3.    The respondent pay the applicant’s costs, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an application under r 31.23 of the Federal Court Rules 2011 (Cth) for an extension of time in which to file an application for the review of a migration decision under s 476A of the Migration Act 1958 (Cth).

2    The decision of the Minister was made on 10 November 2023 under s 501(3) of the Migration Act. This section conferred a discretion on the Minister to relevantly cancel the applicant's visa if the Minister reasonably suspected that he did not pass the character test; and the Minister was satisfied that the cancellation was in the national interest.

3    Under s 477A(1) of the Migration Act the applicant had until 35 days from the date of the cancellation decision to commence an application for judicial review. The application for an extension of time identifying the proposed application in this case was filed on 14 August 2024. Therefore, the application was filed around 8 months out of time.

4    By s 477A(2), the Federal Court may extend the 35 day period 'as the Federal Court considers appropriate' if an application has been made in the required form, and the Federal Court 'is satisfied that it is necessary in the interests of the administration of justice to make the order'. Rule 31.23 of the Federal Court Rules 2011 (Cth) provides the procedural requirements for bringing the application.

5    The applicant's solicitor (Alice Graziotti) provided an affidavit in support of the extension application. The two proposed grounds of review that the applicant seeks to pursue are narrow and focus on the decision-making process of the Minister as to the applicant's likelihood of reoffending.

6    The Minister opposed the making of an order extending the time for filing.

7    The parties agreed that I should deal with the extension application and the merits of the proposed review at the same time.

8    For the reasons below, I have determined that the extension of time should be granted and the grounds of review should be allowed.

Visa cancellation

9    The applicant is a 26-year-old citizen of the People's Republic of China. He first arrived in Australia in September 2015 at the age of 17 with his mother, following her marriage to an Australian man in December 2013. The applicant has resided in Western Australia since that date. The applicant is now married and has a three-year old daughter who is an Australian citizen. The applicant's wife's application for a partner visa was refused due to the cancellation of the applicant's visa.

10    On 4 November 2019 the applicant was convicted in the District Court of Western Australia of two counts of sexual penetration of a child under 13 and sentenced to a term of six months' imprisonment on each count, to be served cumulatively, suspended for an operational period of 12 months.

11    On 10 November 2023 the Minister cancelled the applicant's visa (cancellation decision) under s 501(3) of the Migration Act on the basis that she was satisfied that the applicant objectively did not pass the character test outlined in s 501(6) of the Migration Act and she was satisfied that the cancellation was in the national interest. As to failure to pass the character test, the Minister relied on s 501(6)(e)(i) of the Migration Act (conviction for one or more sexually based offences involving a child).

12    The applicant was invited to make representations about revoking the Minister's decision to cancel the visa pursuant to s 501C(3)(b) of the Migration Act. The applicant provided submissions in support of his request that the decision be revoked on two separate occasions. On 16 November 2023 the applicant's then-representative (a migration agent) submitted to the National Character Consideration Centre that the Minister should revoke the cancellation of the applicant's visa. In addition, the applicant made further representations in a personal statement dated 9 January 2024.

13    On 19 July 2024 the Minister made a decision not to revoke the decision to cancel the applicant's visa (non-revocation decision). Notice of the outcome was sent to the applicant on 24 July 2024.

14    The application before me is not concerned with the non-revocation decision but with review of the cancellation decision. However, the fact that the request for revocation was embarked upon is relevant to the delay, as discussed below.

Reasons for delay

15    The applicant submits that the delay in filing an application for an extension of time was brief given that it was lodged within 20 days of the applicant receiving notice of the non-revocation decision.

16    Ms Graziotti deposed in her affidavit to the effect that the applicant received Notice of the cancellation decision on 15 November 2023.

17    The Notice was in evidence. Relevantly, although the Notice states that the Administrative Appeals Tribunal cannot review a decision made by the Minister personally, it says nothing about the potential to seek a review from this Court. Further, the Notice emphasises the entitlement to make representations as to revocation.

18    Relevantly the Notice states:

A copy of the statement of reasons for the Minister's decision and information relevant to the decision is enclosed.

The original decision to cancel your visa has been made by the Minister personally. While the Administrative Appeals Tribunal has the power to review decisions made by the Minister's delegate to cancel the grant of a visa under s501 of the Act, it cannot review decisions made by the Minister personally.

Representations about revocation of the decision to cancel your visa

Under s501C of the Act, certain persons are entitled, pursuant to an invitation, to make representations to the Minister about revocation of a decision to cancel their visa under s501(3). The effect of s501C(10) and regulation 2.52(7) is that a person who is in Australia must be in immigration detention to be entitled to make representations about revocation under s501C. Copies of s501C and regulation 2.52 are enclosed.

Under s 501C(4), the Minister may revoke the original cancellation decision if, and only if, the person makes representations in accordance with the invitation and the person satisfies the Minister that they pass the character test (as defined by s501).

…

19    After receiving the Notice, the applicant made representations about whether the decision should be revoked. The applicant utilised a registered migration agent to assist in providing a first set of submissions in November 2023. He made further representations through a second registered migration agent during the period January 2024 to July 2024, which apparently consisted of hundreds of pages.

20    Ms Graziotti stated that the applicant engaged her firm after receiving the non-revocation decision on 24 July 2024. Her firm, after reviewing the applicant's documentation, considered the appropriate course was to file an application for review of the cancellation decision.

Principles on extension of time application

21    In accordance with s 477A(2), I am required to consider whether I am satisfied that it is necessary in the interests of the administration of justice to grant the applicant an extension of time to make an application for judicial review of the Minister's decision.

22    The principles with respect to granting an extension of time are well settled. They were set out by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579 at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ):

Other than the 'interests of the administration of justice', there are no mandatory relevant considerations, whether express or to be implied from the 'subject-matter, scope and purpose' of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

Minister's opposition

23    The Minister contends that the applicant's explanation weighs against the applicant being granted an extension.

24    The Minister submitted that the applicant made a decision to pursue revocation of the decision, and that such a course might be considered a waiver or election in relation to seeking judicial review, or at least should weigh strongly against the applicant. The Minister relies by analogy on authorities such as M211 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 and the cases cited by the Full Court at [21]-[24] which considered the impact of a decision to bring a s 417 application for Ministerial intervention before seeking constitutional writs. Those cases considered 'inconsistent courses' and concluded that a decision to implicitly accept a decision-maker's decision and pursue a s 417 application was not a sufficiently special circumstance to warrant excusing a delay that followed in seeking review. I do not find the analogy useful in this case, as although the applicant initially pursued a different course upon receipt of the Notice, the course undertaken was not inconsistent in the sense that it did not suggest any abandonment of a challenge to the decision. Rather, the initial path chosen was consistent with a challenge to the decision by way of representations.

25    The Minister also observed that the applicant has not deposed to being unaware of his legal right to seek judicial review and was at the relevant time represented by migration agents. It is well-established that an applicant's lack of knowledge of legal rights or an absence of legal advice about the course of decision-making may not of itself provide an adequate excuse for delay: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [35]. The Minister's observation is correct, but not determinative.

26    More generally, the Minister submitted the long period of time before filing the review application was not adequately explained.

Extension should be granted

27    It is regrettable that the applicant embarked on another course before pursuing this one, resulting in delay.

28    I infer from the Notice and the subsequent events that the terms of the Notice led or at least encouraged the applicant to proceed in a particular manner, an inference that is not inconsistent with the evidence of Ms Graziotti. I accept, as the Minister submitted, that the applicant did not give express evidence either to the effect that he was misled by the Notice or that he did not know that it was open to him to bring an application for review in this Court. However, it is not as if the applicant was doing nothing during this period. Upon receipt of the Notice, he did exactly what the Notice invited him to do – he made submissions as to revocation. He omitted to do what the Notice omitted to mention he could do – that is, he omitted to bring a review application to this Court within time. As soon as the revocation decision was made, it seems that the applicant sought legal advice as to his options. Upon retaining lawyers, a different course was undertaken. Although the circumstances as a whole are regrettable, I consider the delay has been appropriately explained in the circumstances of this case.

29    I have taken into account other matters. Counsel for the Minister accepted that no prejudice would be suffered by an extension of time being granted. There is a public interest in the timely finalisation of migration proceedings. This weighs against an extension but is not a matter that outweighs the other matters to which I have had regard.

30    In particular, I have had regard to the merits of the proposed grounds (as developed below) and have found that they have merit.

31    Taking into account all the circumstances, I do not accept that the admittedly long delay on the part of the applicant in seeking review of the cancellation decision should bar him from pursuing judicial review.

Merit of the grounds

32    As in many extension applications, a central question is whether there is sufficient merit in the proposed grounds to grant the extension of time.

33    The Minister relied on s 501(3) and so considered the question of national interest. In that context she stated in her reasons that the matters of national interest include, among other things, the protection of the community and the expectations of the Australian community. Matters relating to the applicant's criminal conduct and risk of reoffending were central to the Minister's reasons.

34    There is one issue on which the review grounds turn, and it relates to the sentencing remarks made by the District Court judge, a transcript of which was before the Minister. It is useful to start with those remarks.

The offence and sentencing remarks

35    The sentencing judge described the offending. In summary, the applicant, then aged 20, met a 12-year-old girl on a dating app which required users to be over 18 years old. The applicant did not attempt to independently verify the girl's age.

36    Shortly after meeting the girl in person, the applicant had sexual intercourse with her on two occasions in his home. On the second occasion the girl's father tracked her whereabouts and the applicant was subsequently arrested.

37    The applicant pleaded guilty to two offences of sexual penetration of a child under 13 and was sentenced to a term of six months' imprisonment on each count, to be served cumulatively, suspended for an operational period of 12 months.

38    The sentencing judge did not sentence the applicant immediately upon the plea being entered because she wished to consider whether there was 'something less than even a suspended term of imprisonment' that might be imposed. After an adjournment of some days, as the sentence indicates, her Honour concluded a suspended sentence was appropriate. In coming to this view her Honour took into account various materials including what were described as a pre-sentence report and a psychological report prepared by Ms Oliveri and Ms Houghton respectively (both apparently psychologists); written and oral submissions made for the applicant; character references for the applicant from various friends and family; and a letter written by the applicant to the District Court expressing remorse for his actions.

39    A number of facts were accepted for the purpose of sentencing. Relevantly, the sentencing judge accepted that the applicant assumed the girl was aged over 18 years because she was registered on the dating app, because she told him that she was 18, and because she looked older than 12 years old. The State and the judge accepted that the applicant's belief as to the girl's age was genuine and reasonable.

40    The sentencing judge turned to the applicant's personal circumstances, commencing with the pre-sentence report and its input from Ms Oliveri. As to this report, her Honour said:

The pre-sentence report relying on Ms Oliveri, the psychologist' s report, says that you have no sexual attitudes which approve of sexual conduct with children. That report also says that you are considered to be a person at average risk of reoffending and that seemed to be because the psychologist thought that you were minimising your conduct and because you have treatment needs in relation to decision making.

I’m going to come back to that conclusion later in my reasons.

41    Her Honour disregarded Ms Oliveri's recommendation that the applicant, because he would require an interpreter, would be unsuitable for a community-based sentence. Her Honour observed that would be a very poor reason to deny a person a community-based sentence.

42    The sentencing judge then turned to Ms Houghton's report, stating:

Looking then at the psychological report of Ms Houghton, it says that you've attended three treatment sessions of 60 minutes each with her and that you have another session scheduled for November. It says that you have prepared a relapse prevention program or plan which includes no longer using the internet for dating purposes, making more specific inquiries as to the age of potential sexual partners including asking to see identification. Taking more time to form relationships before embarking on a sexual relationship, and introducing your parents and friends to potential girlfriends before embarking on a sexual relationship. Ms Houghton also says that you have no outstanding treatment needs.

It is also of significance that you were 20 when this offending occurred. The courts recognise that the community's best interests are served by efforts to rehabilitate youthful offenders. And that youthful offenders often do not have the same judgement and life experience as can be expected of more mature adults. So there is mitigation in your youth.

You also come before the court as a person who has led an unblemished life until this offending…

I want to come back now to the issue of your risk of reoffending. The psychological reports do not indicate that you have a sexual interest in children and I don't accept that when you spoke to Ms Oliveri you were minimising your conduct. When that report was written Ms Oliveri did not appreciate all of the facts of this case.

You have undertaken private counselling and have put in place a very onerous plan to ensure that you do not have sex with underage girls in the future. Accordingly, I find that you are highly unlikely to reoffend in this way in the future and I'll sentence you on that basis.

…Your blameworthiness is reduced because you were deceived as to the child's age by her conduct.

…The thing which increases the seriousness of your conduct is the victim's age.

…And the fact is that you did very little to ascertain her age when you arranged to meet her. Members of the community are well aware that much of what is posted on the internet is not true and that many people join internet sites pretending to be 18 years of age when that is a requirement for joining. It seems to me, after careful reflection, that when a person meets another person on the internet and proceeds to have sexual intercourse with them after very little conversation or communication and with very little information about them, then without judging the morality of that conduct, the person will need to do more to be certain of the age of the other party involved.

This is particularly so because of the difficulty of ascertaining someone's age merely from their physical appearance. This is an offence of strict liability, and the onus was on you, as it would be on every person, to independently verify the age of the person with whom you intend to engage in sexual conduct when it comes about in that particular way. And that was the failing in your case, Mr Liao.

The major sentencing consideration in your case is general deterrence. The community must know that where adults engage in sexual conduct with children under the age of 13 it will be treated seriously. That said, your conduct falls at the lowest end of the scale of seriousness for offences of this kind.

…And it must also be a sentence that will deter you from offending like this in the future, although, again, this aspect of sentencing is significantly reduced because I have found that you are unlikely to reoffend. And that is why the most important aspect of your sentencing is general deterrence.

(emphasis added)

43    Her Honour then proceeded to impose the suspended sentence, stating relevantly:

Ordinarily, I would have no hesitation in deciding that a term of immediate imprisonment is the appropriate sentence in circumstances where a 20-year-old man sexually penetrates a 12-year-old child but the circumstances of your case are highly unusual. …

But given the very significant mitigation which exists, indeed one could hardly anticipate that more mitigation could exist. And the fact that you are working and studying and have good prospects in the community and good family support and because your risk of reoffending is low. And because of the highly unusual circumstances in which the offences were committed, I am positively satisfied that it is appropriate to suspend the term which I will impose.

(emphasis added)

The Minister's reasons

44    The Minister in her reasons relevantly commenced her consideration by stating that Federal Court decisions 'hold that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to [their] satisfaction (provided that satisfaction is obtained reasonably)'. The Minister acted on a broad expression of the national interest, stating that such matters include among other things, the protection of the community and the expectations of the Australian community.

45    The Minister stated that in considering the need to protect the community, she considered: (1) the seriousness of the applicant's criminal conduct; (2) the likelihood of him reoffending; and (3) the risk he poses to the Australian community if such a likelihood eventuates.

46    Based on the index of relevant material, the Minister had been provided with (relevantly) the judge's sentencing remarks, but did not have a copy of Ms Oliveri or Ms Houghton's reports (and the Minister's counsel did not suggest otherwise before me).

47    As to the seriousness of the criminal conduct, the Minister referred to the finding by the sentencing judge that the applicant's offending fell at the lowest end of seriousness for offences of its nature. The Minister referred to the fact that a period of imprisonment had been imposed, concluding that the Court viewed the offending as very serious, but also recorded the judge's observation that there was significant mitigation in the applicant's case, and that the circumstances of the offending were highly unusual. The Minister concluded that the applicants' criminal conduct was very serious, notwithstanding the significant mitigating factors in his case.

48    As to the risk to the Australian community, the Minister stated that she had regard cumulatively to the nature of the harm should the applicant engage in further criminal or other serious conduct, and the risk of such further criminal or other serious conduct, taking into account the likelihood of the applicant reoffending. As to such likelihood, the Minister considered remorse and rehabilitation.

49    Through that route, the Minister came to make the comments about remorse and rehabilitation that are at the centre of this review application.

50    As to those matters, the Minister noted that the applicant had pleaded guilty at the first opportunity and that the sentencing judge was satisfied that he was genuinely remorseful. But at para 49 of her reasons the Minister said:

The Judge dismissed the assessment from a psychological report where Mr LIAO was described as an average risk of reoffending, because the author 'did not appreciate all of the facts in this case', and instead found that he was 'highly unlikely to reoffend in this way in the future'. I have also considered that the psychologist thought Mr LIAO minimised his behaviour and had outstanding treatment needs in relation to decision-making. While such issues have not been categorically ruled out, they continue to cause some doubt about Mr LIAO's risk of reoffending.

(emphasis added)

51    The applicant submitted that this paragraph is a fundamentally confused proposition that gives rise to two grounds of review.

52    The report referred to is clearly that of Ms Oliveri. Without seeing the report, the Minister purports to rely on it as evidence that tended to 'cause some doubt' about the risk of reoffending, despite the fact that the sentencing judge, who had indeed read the report, had dismissed Ms Oliveri's assessment because its basis was unsound. In effect, the sentencing judge said that Ms Oliveri's conclusion could not be relied upon. Ms Oliveri had operated on an incomplete set of facts.

53    The Minister, however, chose to proceed on the basis that issues raised by Ms Oliveri and rejected by her Honour had not been 'ruled out'.

54    The Minister clearly doubted and departed from the sentencing judge's treatment of Ms Oliveri's report. The Minister's reliance on the apparent contents of Ms Oliveri's (impugned) report is clearly part of the reasoning process by which the Minister then assessed the applicant's risk of reoffending.

55    The Minister also said that she took into account some additional matters that were not relevant on the occasion of the applicant's sentencing. For example, the applicant has been in the community since the sentencing for some 4 years with no suggestion of offending, has married, and is in employment.

56    As to the risk to the community, the Minister concluded:

On balance I consider there to be a low likelihood that Mr LIAO will reoffend. Nevertheless, I considered that, should Mr LIAO engage in similar conduct again it may result in psychological and physical harm to members of the community. I have given this significant weight towards a finding that it is in the national interest to cancel Mr LIAO's visa.

57    The Minister also concluded that the expectation of the Australian community was that a person such as the applicant who had a conviction for serious sexual offending against a child should not continue to hold a visa.

Grounds of review

58    By amended proposed grounds of review (renumbered for convenience) the applicant contended:

(1)    The Minister misunderstood or misconstrued evidence before her, and thus failed to consider all material before her upon its correct import, in that the Minister misunderstood the nature of the comment about the applicant having minimised his offending.

(2)    The Minister's decision to cancel the applicant's visa under s 501(3) of the Migration Act is affected by jurisdictional error because there was no probative basis to find the applicant was a 'low risk of reoffending' as opposed to 'highly unlikely to reoffend'.

59    As to the first ground, the complaint rests on the content of paragraph 49 of the Minister's reasons, and although described by the applicant as error by failing to understand the evidence, the Minister submitted that it is to be understood as an argument based on illogicality and irrationality rather than a conventional 'misconstrued evidence' case.

60    As to the second ground, the applicant argued that on an application of HZCP v Minister for Immigration and Border Protection: [2019] FCAFC 202; (2019) 273 FCR 121 (McKerracher, Derrington and Colvin JJ), it was not open to the Minister to decide the case on a basis contrary to the sentencing judge's conclusion that the applicant has a highly unlikely prospect of reoffending and findings related to that conclusion.

Ground 1

61    Jurisdictional error may occur when either the outcome of the exercise of a statutory power was one that no rational or logical decision-maker could reach, or because it was not open to the Minister to engage in the process of reasoning in which they engaged and to make the findings they made on the material before them: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] (Crennan and Bell JJ); Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34]-[35] (Allsop CJ, Besanko and O'Callaghan JJ). Where reasons are given, the Court ordinarily looks to those reasons to assess the reasonableness of the exercise of power: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[47] (Allsop CJ, Robertson and Mortimer JJ). .

62    Nevertheless, the characterisation of a decision as legally unreasonable because of illogicality or irrationality is not easily made, and not every lapse of logic will give rise to jurisdictional error: SZMDS at [130]; Djokovic at [34]. It is not sufficient that the court disagrees with the basis of the fact finding or associated reasoning, or even strongly or emphatically disagrees; it must be shown that the findings were not rationally open to be made: CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [65] (Moshinsky, O'Bryan and Cheeseman JJ) and the cases cited.

63    Guided by those principles, I consider the reasons of the Minister expressed at para 49 of her reasons reveal illogicality.

64    The role of a sentencing judge is not to be underestimated. As observed in HZCP (McKerracher J at [73], Colvin J at [180]), the procedure that must be followed in criminal proceedings (including sentencing) includes many protections for the accused, and a high degree of confidence may be entrusted in the truth of the factual matters that provide the necessary foundation for the imposition of a sentence.

65    In this case the sentencing judge, who had taken time to consider the facts and issues in play and had considered materials relevant to sentencing, including the reports of Ms Oliveri and Ms Houghton, specifically rejected parts of Ms Oliveri's report. Not only was it rejected but the sentencing judge gave reasons why. To repeat the sentencing judge's statement:

I don't accept that when you spoke to Ms Oliveri you were minimising your conduct. When that report was written Ms Oliveri did not appreciate all of the facts of this case.

66    When whatever was said by Ms Oliveri about the applicant minimising his conduct is rejected and put to the side, there was no other evidence or finding that referred to him minimising his conduct.

67    The Minister has chosen to in effect contradict the sentencing judge's rejection of that part of the report and has used the impugned report (without seeing it) as a basis for asserting that the comments 'cause some doubt about [the applicant's] risk of reoffending'.

68    To the extent the Minister assumes that there were outstanding treatment needs, that assumption was also apparently incorrect, having regard to Ms Houghton's report that stated that there were no outstanding treatment needs. It is implicit in her Honour's sentencing comments that she accepted that to be the case. But this is not the point that reveals the jurisdictional error for the purpose of this ground.

69    Putting that point to the side and focusing (as the applicant did) on the conclusion reached by the Minister as to 'minimising conduct', in the face of the sentencing judge's express rejection of the foundation for the comment, the finding that the issue of the applicant minimising his conduct 'continued to cause some doubt' was not rationally open to be made. The position may have been different had the Minister perused Ms Oliveri's report and came to a different conclusion based upon its content, but that is not what happened. The Minister had not been provided with the report. In my view, it was not rational to place any weight on a comment of a third party, referred to by the sentencing judge and rejected as being without foundation.

70    Counsel for the Minister submitted that it was still open to the Minister to place weight on Ms Oliveri's report as she was not bound by the comments of the sentencing judge, and that, further, the Minister 'just accepted it was possible there had been minimisation'.

71    It follows from my conclusion that I am not persuaded by the submission. The Minister expressly linked her view that the issue of minimisation 'continue[d] to cause some doubt' about the risk of reoffending to the fact that 'the psychologist thought [the applicant] minimised his behaviour'. Reference to the psychologist's report was a critical step in the reasoning process. It is that reasoning process that, to my mind, was irrational in a context where the sentencing judge had expressly rejected the underlying premise of what Ms Oliveri thought and there was no other relevant evidence referred to by the Minister on that issue.

72    Ms Oliveri had apparently considered minimisation to be relevant to assessing the level of risk of reoffending, and the Minister referred to the ill-founded conclusion for the same purpose.

73    The question then becomes one of materiality.

74    As explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, whether an error is material is to be assessed having regard to whether the decision that was in fact made could, not would, realistically have been different had there been no error. As said at [16]:

In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).

75    The Minister when undertaking the administrative task of considering the national interest concluded that the applicant was a 'low risk' of reoffending.

76    The Minister's counsel submitted that four matters led to the Minister making this finding, and the doubt expressed at para 49 was only one of them. The other three were said to be:

(a)    the sentencing judge's finding that the applicant presented a 'risk' of reoffending (presumably a reference to what was said in the extract at [43] above, but to be read with regard to the other extracted conclusions of the sentencing judge).

(b)    the fact that Ms Oliveri thought that the applicant had outstanding treatment needs in relation to decision-making and that such an issue had not been categorically ruled out (para 49 of the reasons and addressed at [68] above); and

(c)    the fact that letters provided by the applicant's wife, mother and stepfather in connection with the applicant's wife's partner visa did not mention his offending history which gave the Minister 'some pause' in terms of 'the applicant's rehabilitation and their role in supporting him'.

77    It could not fairly be said that those three matters, cumulatively or separately, were so comprehensively persuasive in informing the level of risk so as to affirmatively conclude that the outcome would inevitably have been the same, had the Minister omitted to have regard to Ms Oliveri's impugned statement about the applicant's purported minimisation of his own behaviour. The sentencing judge's reference to 'risk' must be read having regard to the broader sentencing remarks and in particular her Honour's conclusion as to the risk of reoffending being 'highly unlikely'. There was a competing finding in relation to an absence of outstanding treatment needs to be taken into account. The reference to family support is put at a very general level. In those circumstances I consider that the applicant has demonstrated that there exists a realistic possibility that the outcome of the decision could have been different had the Minister not made the error identified. Even allowing for the fact that the Minister concluded that the applicant's risk of reoffending was low, that term is not to be understood as being the lowest possible assessment of the quality of risk: the term 'low' permits a range of potential outcomes. And even accepting that the error may have made only a small difference to the overall assessment of risk, it may have influenced the weight that the Minister placed on the consideration of such risk as a whole. This was a case where there were matters that weighed both in favour and against the applicant to which the Minister had regard in making the evaluative judgment as to national interest. The error could realistically have affected the balancing exercise undertaken by the Minister as a whole. In those circumstances I am satisfied that the error was material and relief should follow.

Ground 2

78    In the circumstances it is not strictly necessary to consider ground 2. I will address it briefly.

79    The applicant contends that having regard to HZCP, the Minister was obliged to accept the findings of the sentencing judge. That is, it was not open to the Minister to decide the case on a basis contrary to the sentencing judge's conclusions that the applicant's prospect of reoffending was 'highly unlikely'. Whilst it is true that different qualitative descriptions of the risk of reoffending were used in parts of the sentencing remarks (as I have emphasised in the passages extracted above), it is apparent that the sentencing judge concluded that the applicant was 'highly unlikely to reoffend', and he was sentenced on that basis. On the other hand, the Minister determined that the risk of offending was 'low'. The applicant contends that the respective quantifications of risk are different.

80    HZCP concerned the circumstances where an applicant purports to challenge or go behind a conviction or sentence, where that conviction or sentencing is the pre-condition to the administrative decision-maker's power: at [77]-[79] (McKerracher J), [194]-[196] (Colvin J); Ba v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1271 at [74] (Colvin J).

81    Neither the applicant nor the Minister sought to challenge the conviction that formed the pre-condition to the exercise of the Minister's power in this matter. As is apparent from the reasons (paras 15-16) the basis upon which the Minister was satisfied that the applicant did not pass the character test was s 501(6)(e), which provides relevantly that a person does not pass the character test if a court has convicted them of a sexually based offence involving a child. The challenges by the applicant are not to the conviction but to the manner in which the Minister exercised her administrative powers pursuant to s 501(3)(d) in assessing the national interest, including the manner in which she had regard to the sentencing remarks.

82    The applicant submitted that it was open to the Minister to also rely upon s 501(6)(a) and s 501(7)(d) and the definition of a 'substantial criminal record', which relies upon the nature and length of a sentence, rather than the conviction itself. That might have been so, but it is not the manner by which the Minister purported to exercise her powers in this case.

83    The Minister relied upon a statement in Nguyen v Minister for Immigration and Border Protection [2019] FCA 423 at [21] (Flick J). In Nguyen, the Minister noted that in a pre-sentence report Mr Nguyen was assessed as a medium/low risk of reoffending and that the sentencing judge considered that he was unlikely to reoffend. However, having had regard to other matters such as Mr Nguyen's social drug use, the Minister concluded that there was an 'ongoing likelihood that Mr Nguyen will reoffend'. The primary judge at [21] held that the Minister in that case was 'by no means bound to accept the assessment of the sentencing judge as determinative'. It was noted that the Minister had taken into account the remarks of the sentencing judge and other disclosed matters in reaching his 'overall assessment' as to the risk of reoffending. An appeal from Nguyen was allowed in Nguyen v Minister for Home Affairs [2019] FCAFC 128; (2019) 270 FCR 555 (Jagot, Robertson and Farrell JJ) but on different grounds.

84    Similarly, the Minister sought to rely on Mitchell v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 526 (Hespe J). In Mitchell, the sentencing judge stated that they were not satisfied that Mr Mitchell's drug use made any significant contribution to his offending. Despite this, and despite there being no supporting material that demonstrated a risk of illicit drug use translating into a risk of similar offending, the Minister concluded that drug use was a risk factor for Mr Mitchell's reoffending. Hespe J, in ordering that writs of certiorari and mandamus accordingly were to issue, concluded that 'although the Minister was not bound by the remarks of the sentencing judge, there is no material supporting the Minister’s course of reasoning (for example a psychiatric or forensic psychologist report)' (at [30]).

85    These statements were not made in the context of a challenge to an underlying conviction. They reflect that the administrative task undertaken in assessing the likelihood of reoffending permitted the decision-maker to have regard to and assess the material before them. And, as explained by Colvin J in HZCP at [183], it can be accepted that where that is the task undertaken, it might be the case that a decision-maker might reach a conclusion on the material before them to the effect that the true position is contrary to the foundation on which a sentence depends:

In other instances, the fact of the conviction or sentence (or indeed the factual matters upon which the conviction or sentence is necessarily based) may be relevant to the exercise of a decision-making power which does not have, as its jurisdictional foundation or one of the factual matters that must be acted upon in the exercise of the power, the conviction or sentence. In such instances, the administrative decision-maker may reach a conclusion upon all the material before the decision-maker to the effect that the true position is contrary to the factual foundation on which the conviction or sentence depends. There is no issue estoppel that operates. However, it is unlikely that an administrative decision-maker would do so. The reason why that is so is due to the high degree of confidence that, in almost all cases, ought to be afforded to the veracity of factual matters that provide the necessary foundation for the conviction or sentence.

86    The Minister was entitled to assess the risk of the applicant in this case reoffending having regard to all the material before her, including the sentencing remarks, the letters held by the Department in relation to his wife's partner visa application and other protective factors such as his marriage and employment.

87    The Minister was not compelled to adopt the description of the risk of reoffending used by the sentencing judge and there are other ways in which a similar risk could be described. However, even accepting the applicant's submission that the Minister's assessment of a 'low' risk reflects a greater risk of reoffending than that determined by the sentencing judge, it was open to the Minister to undertake that assessment for the purpose of the national interest element, provided the task was undertaken relevantly having proper regard to the material before her. It was also possible that a decision-maker might draw different conclusions in relation to facts found by the sentencing judge (see [85] above) but in this case, for example in regard to expressed doubts about the applicant's minimisation of responsibility, there was no appropriate basis for the Minister to do so, for the reasons explained in relation to ground 1. This ground is therefore allowed, although not on the basis of the applicant's submission that an application of HZCP bound the Minister to the findings of the sentencing judge, but rather because of the same error described in relation to ground 1, an error that was material to the task undertaken by the Minister in her assessment of the risk of reoffending and the national interest.

Disposition

88    The applicant’s extension of time is granted. The applicant’s grounds of review are accepted. A writ of certiorari is to issue. The Minister is to pay the applicant's costs of the application.

Associate:

Dated:    30 April 2025