Federal Court of Australia

Rowe v Minister for Immigration and Citizenship [2025] FCA 805

ORDERS

THE COURT ORDERS THAT:

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

2. A writ in the nature of certiorari be issued to quash the decision of the Second Respondent dated 21 February 2024.

3. A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and re-determine the matter according to law.

4. If there is no agreement between the parties as to costs within 14 days of the date of this Order, the parties are to notify the Chambers of Justice Collier with a view to the matter being listed for case management in respect of costs.

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

REASONS FOR JUDGMENT

COLLIER ACJ:

1 Before the Court is a further amended application for judicial review of a migration decision of the Administrative Appeals Tribunal (Tribunal), which affirmed the decision of a delegate of the Minister for Immigration and Citizenship (Minister) not to revoke the mandatory cancellation of the applicant’s visa. The applicant contends, in summary, that the Tribunal made legally unreasonable, illogical or irrational findings in its consideration of Ministerial Direction 99 (Direction 99), in particular:

(a) that the link between the applicant’s likely major depressive disorder and his offending was not fully made out or established on the evidence (referable to para 8.1.2 of Direction 99);

(b) that there was a risk of the applicant reoffending if he returned to the community despite his rehabilitation efforts (referable to para 8.1.2 of Direction 99); and

(c) that there was a future risk of the applicant reoffending if he returned to the community (referable to para 8.1.2 of Direction 99).

2 The applicant further contends, in summary, that the Tribunal misunderstood and misapplied Direction 99 in its consideration of:

(a) when the applicant’s rehabilitation efforts commenced, other key risk factors, and the impact of the applicant’s major depressive disorder (referable to para 8.2(3)(c) of Direction 99); and

(b) the applicant’s two businesses and those two businesses constituting an “Australian business interest” (referable to paras 9(1)(d) and 9.4 of Direction 99).

3 The applicant contends that, accordingly, the decision of the Tribunal was affected by material jurisdictional error.

background

4 The applicant is a 53-year-old citizen of the United Kingdom who first arrived in Australia on 22 October 2002.

5 On 27 February 2023, the applicant was sentenced by the Hervey Bay Magistrates Court for threats to distribute intimate image or prohibited visual recording - domestic violence offence and contravention of domestic violence order (aggravated offence) (Index Offending). The applicant appealed his sentence in the Brisbane District Court and was resentenced to 12 months on each offence. He was granted immediate parole upon re-sentencing.

6 On 17 March 2023, a delegate of the Minister cancelled the applicant’s Class BB Subclass 155 Five Year Resident Return visa under s 501(3A) of the Migration Act 1958 (Cth) (Act), on the basis that the applicant did not pass the character test given his “substantial criminal record”.  The applicant sought that the visa cancellation decision be revoked.

7 On 28 November 2023, another delegate of the Minister decided not to revoke the mandatory cancellation decision made on 17 March 2023 (non-revocation decision).

8 The decision of the Tribunal dated 21 February 2024 (with reasons published on 5 April 2024) to affirm the non-revocation decision is the subject of the present application to this Court.

direction 99

9 Under s 499(1) of the Act, the Minister has the power to make written directions for decision-makers who have been delegated powers under s 501CA(4) of the Act. At material times in this case, Direction 99 was in effect (although I note that it has since been superseded by Ministerial Direction 110). Plainly, Direction 99 was binding on the Tribunal by reason of s 499(2A) of the Act: Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 934 at [12].

10 Direction 99 set out mandatory considerations that decision-makers “must take into account … where relevant to the decision”. In particular, para 5.2(6) provided that:

Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

11 Direction 99 set out “primary” and “other” considerations for decision-makers as follows:

8. Primary considerations

8.1 Protection of the Australian community

8.1.1 The nature and seriousness of the conduct

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

8.2 Family violence committed by the non-citizen

8.3 The strength, nature and duration of ties to Australian

8.4 Best interests of minor children in Australia affected by the decision

8.5 Expectations of the Australian community

9. Other considerations

9.1 Legal consequences of decisions under section 501 or 501CA

9.1.1 Non-citizens covered by a protection finding

9.1.2 Non-citizens not covered by a protection finding

9.2 Extent of impediments if removed

9.3 Impact on victims

9.4 Impact on Australian business interests

12 Paragraph 8.1 of Direction 99 provided that the protection of the Australian community should be considered by reference to the nature and seriousness of the conduct, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 8.1.2 of Direction 99 provided that:

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

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

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

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

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

i.    information and evidence on the risk of the non-citizen reoffending; and

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

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by 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.

13 Paragraph 8.2 of Direction 99 set out considerations in relation to the separate “primary consideration” of family violence committed by the non-citizen:

8.2 Family violence committed by the non-citizen

(1)    The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2)    This consideration is relevant in circumstances where:

a)    a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b)    there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3)    In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:

a)    the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

b)    the cumulative effect of repeated acts of family violence;

c)    rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

i.    the extent to which the person accepts responsibility for their family violence related conduct;

ii.    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii.    efforts to address factors which contributed to their conduct; and

d)    Whether the non-citizen has re-offended since being formally warned, or since Otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the noncitizen’s favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

14 Paragraph 9 of Direction 99 set out “other” considerations which the Minister must consider, where relevant. In particular, para 9.4 of Direction 99 provided:

9.4 Impact on Australian business interests

(1)    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.

decision of the tribunal

15 The decision of the Tribunal (D) first set out the procedural history (D[1]-[5], [8]), relevant legislation (D[12]-[15]), and the requirements of Direction 99 (D[24]-[31]). The Tribunal categorised the applicant’s offending as follows:

Index Offending;

unlawful stalking;

distributing intimate images; and

contravening domestic violence orders.

16 The Tribunal also noted that the applicant’s traffic offences, comprising five speeding offences between 2009 and 2022, were relevant considerations (D[19]).

17 The Tribunal considered the applicant’s offending with reference to primary consideration 8.1.2 of Direction 99, and concluded as follows:

Risk Analysis and Consideration

113.    The evidence identifies several static and dynamic risk management factors for Mr Rowe. These include a network of friends and family and the practices and insights he has gained from his pursuit of rehabilitation while in immigration detention.

114.    Mr Rowe’s extensive rehabilitative efforts have not been tested in the general community. This is especially pertinent given that the key risk factor identified above is Mr Rowe entering or being in an intimate relationship with a woman. This scenario is obviously not available to Mr Rowe in immigration detention.

115.    Mr Rowe’s embrace of rehabilitation is relatively recent.

116.    The QCS records are pertinent here:

* 17 September 2020:

‘Employment Risk Note:

Still working 8-12 hour days, 6 days a week.

Substance Abuse Risk Note:

Mr Rowe reports to having "a drink or two" every now and then. Only on some of his shorter work days. When he works long days he just wants to crash and go to sleep.

Relationships Risk Note:

Still not wanting to engage in DV counselling or be referred. Reports there are no issues at home.’

* 10 August 2020:

‘Employment Risk Note:

Works up to 12 hours per day

fixing earth moving equipment

Substance Abuse Risk Note: Nil disclosed.

Relationships Risk Note: Denied any issues within his relationship with his partner- have been getting along well. Highly resistant towards intervention.’

* 5 May 2020:

‘Employment Risk Note:

His work continues to be busy even through COVID.

Mental Health Risk Note:

Nil issues to report.

Relationships Risk Note:

DV check - Rowe is still resistant to undertaking the UCC Men Choosing Change program. He advised that he has not had contact with his Ex and she has not contacted him either. He advised that his current relationship continues to go well.

They communicate well together. Denied any DV’.

* 25 October 2019:

‘Mr Rowe advised that his Partner, [name redacted], is his main support. He noted that he also has a few friends he does go to for advice adding that however he is typically prefers to rely on himself.’

and

‘Mr Rowe is currently listed in a no contact DVO with person) 05/03/2019-04/03/2024. Mr Rowe advised that the Order was placed after moved onto a new partner. Mr Rowe advised that he was sending her emails to reconsider and recommence their relationship and as a result the Order was placed.

Mr Rowe reported that he does not believe his actions constituted the Order being placed and denied that his actions would have caused distress to the victim.

Mr Rowe reported that he has moved on and no longer noted that he doesn’t want anything to do with her or her new partner. Mr Rowe reported that he does not think he would benefit from counselling and is unwilling to attend.’

(Emphasis added)

117.    In her 27 February 2023 sentencing remarks, Magistrate McGarvie stated:

‘On the 19 of September 2019, you were dealt with for further domestic violence offences. Those offences did breach the terms of the good behaviour order. Those offences were stalking between the 24 of December 2018 and the 26 of March 2019. Disturbingly, again, distributing intimate images between the 20th of February 2019 and the 25 of April 2019. And three breaches of a domestic violence protection order. For that offending, you were sentenced to a term of imprisonment which was wholly suspended for a period of 12 months and you were also offered an opportunity to participate in probation.

Despite that, I am told, you have not engaged in any behavioural change programs.’

(Emphasis added)

118.    Mr Hamilton’s 19 May 2023 report states in regard to Mr Rowe:

‘He was referred for treatment with specific regard to his domestic violence offending, with an understanding that he was seeking to address his offending behaviour and obtain the option of remaining within Australia.’

119.    None of the rehabilitation courses appear to address Mr Rowe’s general resilience to stress or his tendency to work long hours for long periods.

120.    Mr Rowe’s expressions of remorse, demonstrations of which are set out above, appear to be relatively recent. Additionally, Mr Hawker observed in his closing submissions that Mr Rowe had only made bare assertions of remorse. The Tribunal agrees with this observation, noting that Mr Rowe did not identify his victims or make specific expressions of remorse about any individual victim.

121.    A further consideration is Mr Rowe’s traffic offending. In isolation, it is effectively characterised by Dr Donnelly. However, when considered in conjunction with his criminal offending and DVO breaches, the combination suggests that Mr Rowe has a problematic approach to complying with laws.

122.    Notwithstanding Mr Rowe’s assertions in his oral testimony and acknowledging its findings about his credibility above, the Tribunal finds no certainty as to whether Mr Rowe would continue with his rehabilitation efforts if allowed to stay in Australia.

123.    As the Respondent contended:

‘Traditional protective factors are not present for Mr Rowe. His work cannot serve as a protective factor, as it was a central risk factor which significantly contributed to his offending. He has no family where he plans to reside and his group of friends should be treated cautiously given their threatened role in the ‘boys viewing party’. Furthermore, while Mr Rowe has an existing domestic violence order active until in deterring the applicant. His attitude towards those orders was contemptuous given he attempted to pay $10,000 to the victim to not seek such an order.’

124.    The Tribunal has considered the evidence above, applying Guo that the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.

125.    Based on Mr Rowe’s past, risk factors such as intimate relationships, stress and work pressure increase his risk of engaging in problematic behaviour which manifests as a risk of reoffending. Acknowledging his evident rehabilitation efforts, the Tribunal cannot be satisfied that these are sufficient to compensate, manage or neutralise the risk factors. If the Tribunal decided to set aside the Visa cancellation decision it is cognisant that Mr Rowe would, more likely than not based on his evidence of his work habits, work long hours for much of the week to re-establish his businesses.

Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

126.    The Tribunal finds that the risk to the Australian community should Mr Rowe commit further offences or engage in other serious conduct both exists and is a material risk.

(emphasis in original, footnotes omitted)

18 The Tribunal considered the applicant’s offending with reference to para 8.2 of Direction 99 and concluded as follows:

Tribunal’s Consideration

134.    The parties agree that Mr Rowe has committed offences and acts of ‘family violence’ as defined in the Direction. There is also agreement in terms of the likely cumulative effects of his family violence offending upon his victims.

135.    The Tribunal notes the discussion in the evidence of an earlier DVO involving a third woman in 2014. Dr Donnelly contended that this circumstance had not been tested in court. Acknowledging this, the Tribunal has not considered this specific circumstance in its consideration of family violence.

136.    There is disagreement between the parties in terms of the other cumulative effects and also in terms of the mitigation to be considered in light of his rehabilitation efforts.

137.    Addressing the specific consideration set out in paragraph 8.2(3):

* Based on the evidence in the information before the Tribunal and the contentions of the parties, there is a frequency to Mr Rowe’s family violence and a trend of increasing seriousness.

* In terms of rehabilitation under paragraph 8.2 (3)(c), Mr Rowe have only relatively recently actively pursued rehabilitation. His evidence and oral testimony demonstrate at the least a basic understanding of the impact of his behaviour on his victims. Applying the consideration given above to his efforts to address his risk factors and the factors which contributed to his conduct, it is observed that some progress has been made in terms of family violence but not on other key risk factors.

* Mr Rowe reoffended since being formally warned in his 2019 sentencing regarding the serious nature of family violence.

138.    In relation to the cumulative effects of the family violence, both parties agree in terms of the impact on the victims.

139.    In terms of the cumulative effect on the Australian community, Dr Donnelly qualifies the position by reference to Her Honour Justice Meagher’s decision in Buntin v Minister for Immigration, Citizenship and Multicultural Affairs at [105]:

‘The applicant submitted, and I accept, that the primary purpose of the revocation power is to protect the Australian community from harm and it is not concerned with the expenditure of public funds.’

140.    The complete paragraph [105] reads as follows:

‘The applicant submitted, and I accept, that the primary purpose of the revocation power is to protect the Australian community from harm and it is not concerned with the expenditure of public funds. The applicant submitted that while the considerations in Direction 90 are not exhaustive, the revocation power is concerned with a person’s "character" and the harm they might cause, and the consideration of the cost to the taxpayer is irrelevant to a person’s character. There is much force in this submission. In taking into account future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, the Tribunal has had regard to an irrelevant consideration.’

(Emphasis added)

141.    Observing the qualification above in Justice Meagher’s paragraph, the Tribunal notes that neither party has contended or raised the costs of Mr Rowe’s incarceration as part of the cumulative effects of his offending. The prison system is also distinguishable from the policing and judicial systems.

142.    The Tribunal considers it reasonable to acknowledge the cumulative allocation of resources of the police and justice systems, as distinct from the incarceration system, required to address Mr Rowe’s family violence offending but also considers these are greatly outweighed by the cumulative effects of his acts of family violence upon his victims.

Tribunal’s Finding: Family Violence Committed by The Non-Citizen.

143.    The Tribunal finds that Mr Rowe has perpetrated acts of family violence and has been convicted of family violence offences.

(emphasis in original, footnotes omitted)

19 The Tribunal considered Australia’s business interests with reference to other considerations 9(1) and 9.4(1)(d) of Direction 99 and concluded as follows:

261.    In assessing this consideration, the Tribunal notes (in no particular order), Mr Rowe’s skill in fabricating parts for imported hydraulic equipment when spare parts are not readily available, his service ethic, his clear expertise in working with high pressure hydraulic systems and the likely relative importance of these characteristics in a regional economy where commercial fishing and earthmoving are relevant industries.

262.    The Tribunal considers that a decision to affirm Mr Rowe’s Visa cancellation decision will impact on Australian business interests in different ways, assuming that such a decision will cause Mr Rowe to permanently close his hydraulics and earthmoving businesses. It is relevant to emphasise at this juncture that both businesses are presently not operating.

263.    First, the Tribunal finds that Mr Rowe’s two businesses should be distinguished. Earthmoving, as attested to in Mr Goulding’s oral testimony, continues whether Mr Rowe’s business is operating or not. The Tribunal considers and finds that the impact on Australian business interests of this business ceasing if a decision to affirm Mr Rowe’s Visa cancellation decision is made is minimal.

264.    The testimony of Mr Goulding and Mr Jones indicates that the absence of Mr Rowe’s hydraulic business has led some customers to hold off seeking repairs, others to take their business to Brisbane and for some competitors to increase their services. This testimony aligns with the expected operation of general market economics around the supply and demand of services and goods.

265.    Turning to Dr Donnelly’s business interests’ contention, the Tribunal understands the contention to be that if the Tribunal sets aside the Visa cancellation decision, Mr Rowe would put his businesses back into operation. This would result in significant positive impacts on the Australian community, including the potential for job creation for Australian residents, contributions to the Australian economy, and advantageous outcomes for the construction sector in Queensland.

266.    The Tribunal considers that this contention does not apply well in terms of the earthmoving business. Earthmoving is somewhat fungible and there was no evidence before the Tribunal to the effect that earthmoving operations in the Hervey Bay region had ceased. Mr Goulding gave oral testimony to the contrary.

267.    The Tribunal considers that the impact on Australian business interests of the hydraulic repair and servicing business ceasing if a decision to affirm Mr Rowe’s Visa cancellation decision is made is more complex than that of the earthmoving business. In the short-term, as the situation is now with the business not operating, customers will hold back or seek alternatives until the situation resolves. This state of affairs represents, to some extent, a negative impact on Australian business interests that used Mr Rowe’s services in line with Dr Donnelly’s business interests’ contention. Put simply, prices and availability of hydraulic services in the Hervey Bay region will likely already have changed and will continue to change in part due to the absence of Mr Rowe. But the price of a service or goods is a signal wrapped in information. Competitors will see the signal and decide whether to enter and fully commit to the market to replace Mr Rowe over the medium to long-term if a decision to affirm Mr Rowe’s Visa cancellation decision is made. Simple market economics suggest demand will be met with supply. As Mr Hawker observed, this is a net positive impact for Australian business interests.

268.    The Tribunal finds, upon consideration, that the impact on Australian business interests from Mr Rowe’s earthmoving business ceasing if he is returned to the United Kingdom is minimal. It further finds that there will likely be a short-term impact on Australian business interests if Mr Rowe’s hydraulic repair and servicing business ceases.

Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Rowe cannot remain here.

269.    This consideration provides a slight weight in favour of setting aside the Visa cancellation decision.

…

Additional Considerations

271.    The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).

272.    Dr Donnelly has contended (the business interests’ contention) that setting aside the Visa cancellation decision would yield significant positive impacts on the Australian community, including the potential for job creation for Australian residents, contributions to the Australian economy, and advantageous outcomes for the construction sector in Queensland. Dr Donnelly further submitted that this constitutes an additional consideration that the Tribunal should assess.

273.    To the extent that there are distinguishing circumstances around the potential future impact on Australian business interests of Mr Rowe’s recommencing business operations (as the businesses are currently not operating) if he is allowed to remain in Australia and that these create an additional consideration, the Tribunal considers that its analysis of the business interests and their impact on Australian business interests above under other consideration (d) can be applied to this additional consideration.

274.     In addressing this additional consideration, the Tribunal also has regard to the following comments by the High Court in Viane at [28]:

‘… Secondly, representations may be received which are no more than bare assertions about a course of future events. The Minister may simply not be persuaded that such assertions can constitute "another reason" for revocation. Such a conclusion does not require the Minister to make any factual findings.’

275.    The suggested significant positive impacts would also likely result from Mr Rowe returning to the United Kingdom and Australian business interests moving to address his customer base once he had permanently left the market.

276.    This additional consideration has neutral weight.

(emphasis in original, footnotes omitted)

grounds of review

20 The grounds of review of the Tribunal decision on which the applicant relies were as follows:

1.    In purporting to apply cl. 8.1.2(2) of Direction 99, the Second Respondent (“Tribunal”) fell into jurisdictional error decision by making legally unreasonable, illogical, or irrational findings by:

a.    not being satisfied, on the information and evidence before it, that the linkage between the Applicant’s likely Major Depressive Disorder and his offending was fully made out or established by the evidence; and

b.    by finding at T[111] that the Applicant’s case aligned more with the context of Sarpor rather than with Mukiza or Hemsley thereby failing to find that the Applicant should be less culpable for his more recent offending where it was linked to his Major Depressive Disorder.

(“Ground 1”)

2.    In purporting to apply cl. 8.1.2(2) of Direction 99, The Tribunal fell into jurisdictional error by making legally unreasonable, illogical, or irrational findings in relation to the Applicant’s substantive rehabilitation efforts which led to the conclusion at T[126] that the Applicant was a material risk of re-offending:

Particulars

a.    The Tribunal failed failing to properly consider the Applicant’s substantive rehabilitation efforts and impermissibly gave weight to the finding at T[114] that the Applicant’s rehabilitative efforts had not been tested in the community;

b.    The Tribunal made adverse credibility findings in relation to the Applicant’s rehabilitative efforts which were not based on logical and coherent reasoning which contributed to the Tribunal not being satisfied that the Applicant’s rehabilitative efforts were sufficient to compensate, manage or neutralise the risk factors identified at T[125].

c.    The Tribunal concluding at [122] that there was no certainty as to whether the Applicant would continue with his rehabilitation efforts if allowed to stay in Australia which impermissibly elevated the requisite level of satisfaction required to one of “certainty”;

d.    By failing to take into account the Applicant’s Relapse Plan, the Tribunal failed to make a logical connection on the evidence as a whole that the Applicant had not addressed his general resilience to stress or his tendency to work long hours for long periods; and

e.     The Tribunal made illogical and unreasonable findings in respect to the Applicant’s lack of expressions of remorse towards his victims at T[112] and T[120] in circumstances where the Applicant was prohibited from contacting his victims.

(“Ground 2”)

3.    In purporting to apply cl. 8.1.2 of Direction 99, The Tribunal fell into jurisdictional error by making a legally unreasonable, illogical, or irrational finding in relation to the Applicant’s risk of reoffending:

Particulars

a.    The Tribunal found that the Applicant was a material risk of re-offending (at T[126]) and may even cause catastrophic harm to potential victims (at T[127](b)) without a probative basis to support such serious findings.

b.    The Tribunal failed to act on the uncontradicted expert evidence of Dr Kwok which presented the Applicant as a moderate risk of re-offending that would reduce to a low risk if he continued his treatment plan.

c.    The Tribunal made adverse credibility findings at T[35] in relation to the Applicant’s evidence, including his offending that were illogical, irrational or unreasonable and not based on logical and coherent reasoning;

d.    The Tribunal misapplied Guo at T[98]-[99] in assessing the Applicant’s risk of reoffending based on past events by failing to consider the Applicant’s Major Depressive Disorder and his rehabilitation, insight and possibility of future treatment; and

e.    The Tribunal erred by applying Sabharwal at T[86]-[89] in finding that the inability to rule out the possibility of future offending was in substance a risk of the Applicant reoffending.

(“Ground 3”)

3A.    In purporting to apply cl. 8.2(3) of Direction 99, the Tribunal fell into jurisdictional error by: (a) acting on a misunderstanding of the law in relation to how cl. 8.2(3) operated; (b) failing to properly consider the rehabilitation efforts: and (c) failing to take consider the Applicant’s Major Depressive Disorder.

(“Ground 3A”)

5.    In purporting to apply cl. 9.1(d) and cl. 9.4 of Direction 99, The Tribunal fell into jurisdictional error by:

a.    misunderstanding the law in relation to how those clauses operated; and

b.    failing to consider the Applicant’s argument regarding the impact on his Australian business interests.

Particulars

a.    The Tribunal incorrectly construed “Australian business interests” as meaning the impact on the broader market implications rather than the impact on the Applicant’s actual earthmoving business and hydraulics business: T[262]-[268].

(“Ground 5”)

5A.    The Tribunal did not consider the Applicant’s evidence and arguments but instead made an illogical finding at T[275] that the “suggested significant positive impacts would also likely result from Mr Rowe returning to the United Kingdom and Australian business interests moving to address his customer base once he had permanently left the market”.

(“Ground 5A”)

applicant’s submissions

21 In relation to the first limb of ground of review 1, the applicant submitted that the Tribunal made a legally unreasonable, illogical or irrational finding of fact by failing to be satisfied on the evidence before it, that the linkage between the applicant’s likely major depressive disorder and his offending was fully made out or established by the evidence.

22 The applicant submitted, in summary, that the Tribunal made a legally unreasonable, illogical or irrational finding of fact because:

The Tribunal did not appropriately delineate between the applicant’s recently offending and his earlier offending.

The expert evidence of Dr Kwok that it was likely the applicant had Major Depressive Disorder with distress at the time of his more recent criminal offences was unchallenged and uncontradicted.

In the absence of any other evidence or reasoning, the Tribunal ought to have concluded that the applicant’s Major Depressive Disorder was associated with his recent offending in a material and causal way.

The possibility that the applicant’s earlier offending could be explained solely by his major depressive disorder was not ruled out by Dr Kwok.

23 In relation to the second limb of ground of review 1, the applicant submitted that the Tribunal misunderstood the law in applying Mukiza and Minister for Home Affairs (Migration) [2019] AATA 4445 by not finding that the applicant should be less culpable for his more recent offending where it was likely linked to his major depressive disorder. Further, the applicant submitted that reliance by the Tribunal on Sarpor and Minister for Immigration, Citizenship & Multicultural Affairs (Migration) [2024] AATA 17 in its reasoning should have been confined to the facts of that case.

24 In relation to ground of review 2, the applicant submitted that the Tribunal made a legally unreasonable, illogical or irrational finding of fact in relation to the applicant’s substantive rehabilitation efforts in finding that the applicant was a risk of reoffending and a material risk if returned to the community.

25 The applicant submitted, in summary, that the Tribunal made a legally unreasonable, illogical or irrational factual finding because:

The evidence establishes that the applicant has made substantial rehabilitation efforts since his time in detention. In particular, that the applicant has completed 26 programs and engaged with a forensic psychologist.

The Tribunal acknowledged that the applicant had made extensive rehabilitation efforts but that those efforts were not tested in the general community. The applicant submitted this approach is inconsistent with the decision of the Full Federal Court in CKL21 v Minister for Home Affairs (2022) 293 FCR 634 at 657.

The adverse credibility finding in relation to the applicant’s rehabilitation was not based on any logical and coherent reasoning.

The Tribunal was not required to be satisfied that the applicant would continue with his rehabilitation efforts if allowed to remain in Australia.

The Tribunal held that none of the rehabilitation efforts appear to address the applicant’s general resilience to stress or his tendency to work long hours for long periods when this was addressed in his relapse plan.

The applicant expressed remorse for his behaviour, but the Tribunal found the applicant “did not identify his victims or make specific expressions of remorse about any individual victim”. The applicant noted that the Tribunal was aware that the applicant was prohibited from contacting the victims to express remorse due to domestic violence orders in place.

26 In relation to ground of review 3, the applicant submitted that the Tribunal made a legally unreasonable, illogical or irrational finding as to the applicant’s future risk of reoffending, in summary, because:

There was no probative basis for the Tribunal to find that the applicant was at material risk of committing a very serious offence.

The Tribunal accepted the expert evidence of Dr Kwok which was that the applicant presented a moderate risk of reoffending, that would reduce to a low risk if he followed and responded to a recommended treatment plan if he returned to the community.

The probative value of the 2023 QCS report, relied on by the Tribunal, which scored the applicant at 13 out of 22 with a high risk of perpetuating domestic violence, should have been reduced as it was prepared prior to the applicant’s mental health diagnosis.

The general adverse credibility findings made by the Tribunal in relation to the applicant’s testimony as to his ties to Australia, his relationships and his offending were not based on logical and coherent reasoning.

The Tribunal misapplied Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 in assessing the applicant’s risk of reoffending by failing to consider the conditions in which the most recent offending occurred and the likelihood that new events may “distort the cycle of regularity”.

The Tribunal erred in applying a fact specific finding in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 that the inability to “rule out the possibility of further offending” was in substance a finding that there was a risk of reoffending.

27 In relation to ground of review 3A, the applicant submitted that the Tribunal misunderstood what was required by para 8.2(3)(c) of Direction 99 in finding that his rehabilitation was “only relatively recently pursued”, and did not address “other key risk factors” when the applicant’s substantial rehabilitation efforts commenced after his last known act of family violence. Further, the applicant submitted that the Tribunal failed to consider the applicant’s major depressive disorder when addressing para 8.2(3)(c).

28 In relation to ground of review 5, the applicant submitted that the Tribunal misunderstood para 9.4 of Direction 99 and that its finding in relation to the impact on Australian business interests was unreasonable, irrational or illogical because:

The Tribunal should have found that, as the applicant’s two businesses were not operating at material times, that there was an impact on his Australian business interests.

The Tribunal impermissibly considered the impact on Australian business interests and the market more broadly.

29 In relation to ground of review 5A, the applicant submitted that the Tribunal’s consideration of para 9(1)(d) was erroneous as it applied the same logic and analysis as its consideration of para 9.4. The applicant noted in his submissions that ground of review 5A is a further ground of review as it was not raised in his amended application for judicial review.

minister’s submissions

30 The Minister noted at the outset of his submissions the discrepancies between the grounds of review as articulated in the amended application for judicial review and the errors advanced in the applicant’s submissions. The Minister stated his submissions address the errors advanced in the applicant’s submissions.

31 In relation to both limbs of grounds of review 1, the Minister submitted, in summary, that it was open to the Tribunal to reject the existence of the asserted linkage between the applicant’s major depressive disorder and his offending. Further, the Minister submitted that the approach taken by another Tribunal member in Mukiza does not, somehow, mean that every Tribunal in every case must weigh the seriousness of offending with reference to the mental health of a person in the same way.

32 In relation to grounds of review 2 and 3, the Minister submitted, in summary, that:

CKL21 does not suggest that that the fact that a person’s rehabilitation has not been tested in the community cannot be considered in a risk evaluation; it simply makes the point that such a matter (in itself) does not positively establish the existence of risk. Here, the Tribunal relied on numerous factors in its assessment of the applicant’s risk of reoffending.

It was open for the Tribunal to require certainty in relation to the applicant’s continued rehabilitation efforts as the Tribunal is permitted to deal with (and make findings about) the issues that it subjectively considered to be material to the case before it (citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]-[69]).

The Tribunal’s finding that none of the applicant’s rehabilitation courses appear to address his general resilience to stress or his tendency to work long hours for long periods does not agitate any jurisdictional error complaint.

In relation to the Tribunal’s consideration of the applicant’s remorse (or lack thereof), the Tribunal is not required to identify every matter it has considered when making a finding of fact. As such, there is no basis to infer that the Tribunal did not consider the applicant’s guilty plea in making its findings as to the state of the applicant’s remorse (particularly where the Tribunal noted the guilty plea in its reasons).

The Tribunal assessed the applicant’s risk of reoffending with reference to:

* the prospect of the applicant re-entering a relationship and his management of his stress and tendency to work long hours without breaks (D[99]-[100]);

* the probability of these risks arising in the future (D[99]); and

* that the applicant’s rehabilitative measures did not appear to be directed towards addressing his stress and working long hours issues (D[120]) (and, in any case, the Tribunal had some reservations as to whether the Applicant would continue with his rehabilitation in the future (D[122])).

This was a logical and rational way to analyse risk (citing Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at [78]).

The expert evidence given by Dr Kwok was just one piece of evidence relevant to risk and the Tribunal was not obliged to make a finding identical to those made by Dr Kwok. Further, seeking that the weight attributed to the 2023 QCS report appears to simply be a challenge to the merits of the Tribunal’s decision.

It was open to the Tribunal to make its credibility findings as to the applicant’s evidence about his ties to Australia, his relationships and his offending. The Tribunal was not required to give reasons for each finding that it made.

The Tribunal did consider the applicant’s major depressive order in the context of his past (recent) offending (D[77], [110]) although it did not accept the linkage of such conditions to his offending (D[111]).

The Tribunal did consider the issues of rehabilitation, insight and future treatment in its risk analysis (D[104], [119], [120], [122]).

The cases cited by the Tribunal at D[86]-[89] do not convey that the Tribunal was of the view that the inability to rule out risk provided a foundation for a positive finding of risk. In any event, the alleged error would not be critical where the Tribunal formed its own view on risk supported by probative evidence.

33 In relation to ground of review 3A, the Minister submitted that the Tribunal expressly considered rehabilitation achieved at the time of the decision (following the applicant’s last known act of family violence). Further, the Minister submitted that while the applicant submitted the Tribunal misapplied para 8.2(3)(c) of Direction 99, the applicant did not explain how.

34 In relation to ground of review 5, the Minister submitted that it was not open to infer that the Tribunal did not consider the impact on the applicant’s businesses, because:

The Tribunal specifically mentioned the applicant’s submissions that regard should be had to the impact on the applicant’s businesses (at D[257]).

As the Tribunal found consideration of para 9.4 of Direction 99 weighed “slightly” in favour of revocation, that attribution of weight can only fairly be taken as having subsumed the weight the Tribunal attributed to the impact on the applicant’s businesses.

In any event, the Tribunal was under no obligation to make such a finding as not making a finding on a matter simply invites an inference that the Tribunal did not consider such a matter to be material.

35 In relation to ground of review 5A, the Minister submitted that the applicant’s submissions relied on (and went no further than) those made in relation to ground of review 5.

36 The Minister submitted, more generally, that very few of the findings of the Tribunal challenged by the applicant would be “critical” findings, and would therefore not amount to a jurisdictional error even if error was accepted.

consideration

37 The decision of the Tribunal member is lengthy and detailed. In his grounds of review the applicant claimed, in summary, that, notwithstanding the detailed reasons of the Tribunal,  only one conclusion was open on the evidence (and the Tribunal did not come to that conclusion), or the Tribunal’s decision was simply not open on the evidence, or there was no logical connection between the evidence and the inferences or conclusions drawn, concerning the findings of the Tribunal referable to:

linkage between the applicant’s likely major depressive disorder and his offending (grounds of review 1 and 3A);

the applicant’s rehabilitation efforts (grounds of review 2 and 3A);

the risk of the applicant re-offending (grounds of review 3 and 3A); and

the applicant’s business interests (grounds of review 5 and 5A).

38 In respect of his business interests, the applicant also claimed that the Tribunal failed to consider his argument regarding the impact on his Australian business interests (grounds 5 and 5A).

39 Relevant principles in respect of claims of illogicality/irrationality/unreasonableness on the part of an administrative decision-maker were explained by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611:

135.    Whilst 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. A decision might be said to be  illogical  or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

40 As the Full Court also observed in BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111:

47.    …it follows that the  threshold  for finding that the end result or fact finding leading to the end result is illogical or irrational is high. Disagreement, even emphatic disagreement, with the administrative decision-maker’s reasoning is not sufficient: Minister for Immigration and Border Protection v MZZMX [2020] FCAFC 175; (2020) 280 FCR 1 at [23]‑[25] (the Court) (quoted with approval by the Full Court in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 166; (2021) 287 FCR 328 at [22] (McKerracher and Griffiths JJ), the merits of which were not questioned when overturned by the High Court on an issue of apprehended bias: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 66 Fam LR 369 at [1] (Kiefel CJ and Gageler J)).

48.    Fourthly, an evaluation of whether an administrative decision is legally unreasonable and therefore outside the range of possible lawful outcomes must be made having regard to the terms, scope and policy of the statutory source of the power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ, with whose reasons Griffith and Wigney JJ agreed at [87] and [90] respectively).

49.    Finally, whether a decision-maker has failed to reach a state of satisfaction reasonably is a fact‑specific inquiry. As Nettle and Gordon JJ observed in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (at [84]):

legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case.

50.    Thus, in determining whether a decision was legally unreasonable, “the question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker”: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85] (the Court); see also SZMDS at [130] (Crennan and Bell JJ).

41 With these principles in mind, I now turn to the applicant’s claims before me.

Linkage between the applicant’s likely major depressive disorder and his offending (grounds of review 1 and 3A)

42 Before the Tribunal was a medical report of Dr Emily Kwok dated 31 January 2024. In that report Dr Kwok opined that it was likely that the applicant was suffering from Major Depressive Disorder with anxious distress at the time of his more recent criminal offences. Dr Kwok was plainly qualified to form such a conclusion. Dr Kwok stated in her report that she is a Clinical and Forensic Psychologist, Nationally Accredited Mediator and Family Dispute Resolution Practitioner in private practice. Dr Kwok holds a PhD from the University of Sydney (2013), a Master of Psychology (Forensic) from the University of New South Wales (2008), and a Bachelor of Advanced Science (Hons) from the University of New South Wales (2006). Dr Kwok also stated that she was a fellow of the College of Clinical Psychologists and College of Forensic Psychologists of the Australian Psychological Society. Relevantly, Dr Kwok stated:

70.    There is an extremely high level of depression in Mr Rowe’s test report. Elevations of this magnitude strongly suggest the presence of a primary depressive disorder, or the possibility of a depression secondary to another psychological disorder.

71.     There is some evidence to suggest that Mr Rowe is experiencing difficulties with feelings of personal inadequacy and considerations about devalued self-worth; however, distress is not of a clinical magnitude.

72.    An extremely high level of anxiety is evident in Mr Rowe’s protocol. A high level of phobic anxiety is also evident in his test record.

73.    Mr Rowe’s levels of obsessive-compulsive symptoms are in the clinical range. He is likely experiencing distressing thoughts that are unwanted by him. This may be secondary to anxiety or depressive disorders.

74.    Mr Rowe's record reveals an extremely high level of paranoid ideation. Such levels are commonly associated with a formal psychiatric disorder which possesses clear paranoid overtones. I note that paranoia was not observed in the interview with Mr Rowe. A closer examination of Mr Rowe’s responses on the SCL-90-R found that he endorsed the items: ‘Feeling that you are watched or talked about by others’ and ‘Feeling that most people cannot be trusted.’ These feelings are common in jail or detention settings and Mr Rowe’s responses may, therefore, not be a true indication of paranoia.

75.    Mr Rowe’s psychoticism score is in the clinical range. However, it is more likely that this reflects an intense experience with social alienation, rather than a thought disorder.

43 Relevantly, Dr Kwok continued:

86.    Did Mr Rowe suffer from any mental health issues at the time of his criminal offences in Australia, particularly in relation to his more recent offences?

87.     Mr Rowe reported that he had never been diagnosed with a mental disorder or illness, even during the period when he was experiencing significant stressors in October 2022 and November 2022. However, he also stated that he “did not have time” to seek professional mental health support and was, therefore, never formally assessed.

88.    The current assessment finds that Mr Rowe experiences a broad range of psychological problems in the face of stressors. This includes an extremely high level of depression and anxiety, feelings of personal inadequacy, sense of devalued self-worth, and intrusive distressing thoughts. Based on his pattern of emotional responses to stressors, it is likely that he was suffering from Major Depressive Disorder with anxious distress as defined by the Diagnostic and Statistical Manual of Mental Disorders – 5th Edition (DMS-V) at the time of his more recent criminal offences. He stated that his symptoms at the time also included significant weight loss, fatigue and loss of energy, and diminished ability to exercise rational thinking and judgement.

44 At D[77] and D[110] of its reasons the Tribunal noted the opinion of Dr Kwok that the applicant was suffering from Major Depressive Disorder with anxious distress at the time of the relevant criminal offences. The Tribunal concluded:

111.    Considering these authorities and the evidence before it, the Tribunal considers and finds that this matter aligns more with the context of Sarpor than with Mukiza or Hemsley. Mr Rowe’s actions harmed other people. The Tribunal is also not satisfied, on the information and evidence before it, that the linkage between Mr Rowe’s likely Major Depressive Disorder and his offending is fully made out or established by the evidence.

45 The three cases on which the Tribunal relied in so concluding were Mukiza and Minister for Home Affairs (Migration) [2019] AATA 4445, R v Hemsley [2004] NSWCCA 228 and Sarpor and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 17.

46 In Mukiza, the Tribunal reviewed a decision of a delegate of the Minister not to revoke a mandatory visa cancellation decision under the Act. The visa applicant in that case suffered from schizophrenia. The Tribunal in that case discussed, in detail, considerations relevant to the visa applicant’s mental condition, stating in particular:

66.    … The Tribunal finds:

* the mental condition has existed since early adulthood;

* it is a continuing condition which is capable of satisfactory control by medication;

* the Applicant, when taking medication, is capable of behaving in a law-abiding way;

* it is relevant that during the Applicant’s period in immigration detention, the Tribunal accepts that he has been drug-free;

* the Applicant’s mother is prepared and willing and will, in fact, remain in Australia and offer assistance, help and support for her son;

* importantly, there is a relationship between the Applicant’s mental health and his offending, that is to say, there is a causal connection between his mental health and his offending, which leads to the conclusion that he should be regarded as less criminally responsible for his past offences.

(emphasis added)

47 The Tribunal in that case concluded:

69.    The Tribunal considers that a fundamental issue in the exercise of its discretion in this case is the acceptable evidence of the Applicant’s mental health condition, diagnosed as schizophrenia. The Tribunal recognises that that condition may have been exacerbated by drug use.

70.    Nonetheless, the Tribunal has concluded the condition of schizophrenia is inextricably associated with the Applicant’s offending in a material and causal way. The Tribunal considers, because the risk of re-offending is low, and because on the evidence, there are sufficient measures in place to ensure public safety, the weight of all considerations favourable to the Applicant leads to a conclusion that there is another reason why the mandatory cancellation should be reversed.

71.    In this regard, the Tribunal has had regard to all of the evidence relied upon by the Respondent to suggest otherwise including the weight of Consideration 3, which is against the Applicant.

(emphasis added)

48 In Hemsley, the applicant was convicted of the offence of armed robbery, and appealed the sentence of imprisonment on various grounds including that the sentence imposed was manifestly excessive. On behalf of the applicant, a report of a clinical forensic psychologist was tendered without objection. In that report the psychologist stated, inter alia, that the applicant’s profile indicated that she had a borderline personality disorder, suffered from major depression, and had a number of avoidant, schizoid and self-defeating characteristics in her personality adjustment. The report in that case continued:

A further factor which must be considered in relation to Miss Hemsley’s offending behaviour is that she would not have been in a position to exercise rational and sound judgment with regard to participating in the offence. This is due to the nature of her borderline personality disorder and her depressive illness. Clearly, what is most urgently needed for Miss Hemsley is for her psychiatric disturbance to be appropriately treated and she is in need of urgent psychiatric care.

(emphasis added)

49 Justice Sperling, with whom Grove and Dowd JJ concurred, relevantly noted that the psychologist’s report was unchallenged at the hearing:

24.    In the course of submissions made at the sentencing hearing, his Honour expressed scepticism about some limited aspects of the history provided by the applicant to Mr Taylor. However, in his remarks on sentence, his Honour reviewed the history provided to Mr Taylor by the applicant in terms only of what was said by the applicant, and without making any finding concerning those matters one way or the other.

25.    His Honour made no finding concerning the applicant’s mental condition.

26.    There is no obvious reason for rejecting any part of the history provided by the applicant to Mr Taylor, given that there was no objection to the tender and no application to limit the use of the report. Nor is there any obvious reason for rejecting Mr Taylor’s diagnosis concerning the applicant’s mental state or his opinion concerning the significance of her mental state in relation to the offence, in the absence of any challenge to his opinion in that regard.

…

33.    Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400; Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

…

37.     His Honour did not take the applicant’s mental condition into account in any of those respects. That constituted error in view of Mr Taylor’s unchallenged evidence.

50 The Court of Criminal Appeal accordingly quashed the sentence.

51 In Sarpor, the visa applicant’s visa was mandatorily cancelled on the basis of his failure of the character test under the Act. His application for revocation of the cancellation decision was unsuccessful. In considering an application for judicial review of the revocation decision, the Tribunal noted:

84.    It is important to note the remarks of the sentencing magistrate who found a link between the Applicant’s mental health and the Applicant’s criminal offending, which was taken into account by his Honour. The Court did not find that the Applicant’s substance abuse was a significant contributing factor.

52 The Tribunal noted that the Mukiza decision was brought to its attention to support an argument that the link between the visa applicant’s mental health and his offending reduced his moral culpability. The Tribunal continued:

88.    Every case before the Tribunal turns on its own facts, and in those cases the facts and evidence before the Tribunal are significantly different to those in this case. In particular, I note that while there were some similarities, the Applicant in those cases also suffered a serious psychiatric illness, and the offences of that Applicant were considered by the Tribunal in the first instance to be ‘largely personal to the Applicant rather than offending which involved and affected other people at large’. The Tribunal is not faced with similar circumstances in this matter. Rather, in this case the Applicant’s offending caused harm to other people, including a minor. Accordingly, I give this argument no weight.

53 Ultimately, for other reasons, the Tribunal set aside the relevant revocation decision.

54 In the present case, the Tribunal was not satisfied on the evidence before it that the linkage between the applicant’s Major Depressive Order and his offending was fully made out or established. In my view, that finding of the Tribunal (at D[111]) in applying para 8.1.2(2) of Direction 99 was open to the Tribunal in circumstances where:

The evidence of Dr Kwok was that the applicant had suffered Major Depressive Order at relevant times—it was not that this condition of the applicant had automatically influenced his relevant conduct; and

The authorities of Mukiza and Hemsley do not stand for the proposition that, because a visa applicant has any mental health condition, that mental health condition must affect conduct giving rise to a conviction whereby the visa applicant fails the character test under the Act.

55 Ground of review 1 is not substantiated. Further, ground of review 3A is not substantiated to the extent that the applicant contends the Tribunal failed to consider the applicant’s Major Depressive Disorder.

The applicant’s rehabilitation efforts (grounds of review 2 and 3A)

56 Paragraph 8.1.2(2)(b) of Direction 99 provides that, in considering the risk to the Australian community, a decision-maker must have regard to factors including the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account evidence of rehabilitation achieved by the time of the decision, and giving weight to time spent in the community since the most recent offence

57 In summary, in grounds of review 2 and 3A the applicant complained that the Tribunal had made unreasonable/illogical/irrational findings in relation to the applicant’s rehabilitation efforts, which led to the conclusion at D[126] of the reasons that the applicant was a material risk of re-offending, in that:

the Tribunal failed to properly consider the applicant’s substantive rehabilitation efforts;

the Tribunal applied the wrong criteria in concluding there was no “certainty” as to whether the applicant would continue with his rehabilitation efforts if allowed to remain in Australia; and

in finding that the applicant failed to express remorse to his victims, the Tribunal failed to recognise that he was prohibited from contacting his victims.

58 In her report, Dr Kwok noted the rehabilitative online courses Mr Rowe had completed:

* Drug and Alcohol Abuse 101 (20 April 2023)

* Anger management (20 April 2023)

* Domestic violence 101 (20 April 2023)

* Healthy relationships (20 April 2023)

* Building self-esteem (27 April 2023)

* Stress management (27 April 2023)

* Problem solving strategies (28 April 2023)

* Emotional intelligence (9 May 2023)

* Decision Making Skills (22 May 2023)

* Overview of the Dynamics of Intimate Partner Violence (12 October 2023)

* Family Violence Foundations (1 December 2023)

* Responding to Domestic and Family Violence (2 December 2023)

* Know Domestic Violence Course (2 December 2023)

* Domestic Violence Risk Assessment and Management (2 December 2023).

* IDAS Domestic Abuse Basic Awareness Online Training (3 December 2023)

* Listening Skills 101 (12 December 2023)

* Violence Against Women and Domestic Violence (26 December 2023)

* White Ribbon Australia: Prevention of Violence Against Women for Workplaces (27 December 2023)

* Level 1 Screening Tools: Queensland Domestic and Family Violence Common Risk Framework (28 December 2023)

* Level 2 Risk Assessment Tool: Queensland Domestic and Family Violence Common Risk Framework (28 December 2023)

* Level 2 Safety Planning Tool: Queensland Domestic and Family Violence Common Risk and Safety Framework (28 December 2023)

* AVERT Family Violence Basics (29 December 2023),

* Men’s Violence Against Women and Violence in Close Relationship (30 December 2023)

* Fundamentals of Domestic Violence and Abuse (December 2023)

59 The Tribunal observed:

103.    The Tribunal observes that Mr Rowe’s rehabilitation efforts, while extensive, are relatively recent in relation to his 2018-2022 offending and have not been tested in terms of an intimate relationship or in the general community…

60 The Tribunal continued:

103.    … A further complexity is added by Mr Rowe’s oral testimony when asked by Dr Donnelly about his offending:

‘Dr Donnelly: In terms of your offending against females, particularly the threats to release pornographic images and so forth, are you aware of those?

Mr Rowe: Yes

Dr Donnelly: What could possibly invoke you to do that?

Mr Rowe: I've read back over the charges and I really cannot understand my (indistinct) thinking back then. So again, that’s a further indication of mental health problems which I need to address and have addressed with the rehabilitation programs.’

(Emphasis added)

104.    The Tribunal is particularly concerned at Mr Rowe’s apparent lack of insight into his thinking and decision-making leading into his offending.

61 In considering whether the Tribunal’s findings demonstrate a failure of reasoning on its part, it is interesting to compare those findings in the present case with those examined by this Court in Coker v Minister for Immigration and Border Protection [2017] FCA 929. In Coker, grounds on which the visa applicant relied included, in summary, that the Assistant Minister effectively required the applicant to prove his rehabilitation in the community, which was impossible for him to do because the visa applicant had remained in detention. Justice Moshinsky observed:

61.    In relation to the Rehabilitation Ground, the applicant places significant emphasis on one passage from the Statement of Reasons and the reference in that passage to the applicant’s progress towards rehabilitation being “yet to be tested in the community” (Statement of Reasons, [41]). However, this reference needs to be understood in its proper context. The Assistant Minister made findings in relation to rehabilitation based on a number of factors. Although (as discussed above) the Assistant Minister failed to have regard to the submissions and information concerning the Parole Board’s decision, he did have regard to: the remarks of the sentencing judge; the representations made by the  applicant  (which were considered to lack remorse and to understate his level of culpability); and the absence of evidence that the applicant had participated in treatment or completed violence-related  rehabilitation  programs. The passage emphasised by the applicant occurred at the end of the Assistant Minister’s analysis with respect to rehabilitation and was expressed in terms of being a “note” or observation, rather than being a matter that operated decisively or with determinative effect. In these circumstances, the Assistant Minister did not erect a hurdle that was impossible for the applicant to clear.

62 In the present case, the Tribunal noted the extensive list of rehabilitation endeavours in which the applicant has engaged, however at D[103] observed that they were relatively recent and had not been tested in terms of an intimate relationship or in the general community. It is difficult to identify how the applicant could have demonstrated testing of those rehabilitation efforts in the circumstances of this case where he has not been in the community. The present case is distinguishable from that in Coker where the decision-maker had regard to other relevant factors in findings concerning the rehabilitation of the visa applicant.

63 The view of the Tribunal that the applicant lacked insight into his thinking and decision-making is not consistent with the evidence quoted by the Tribunal at D[103], which – in the context of the question put to him by his Counsel – suggested self-criticism on the part of the applicant rather than a complete failure to comprehend his thinking at the relevant time. The fact that the applicant was not able to express remorse directly to the persons who had been the object of his conduct because of Court Orders was noted by the Tribunal at D[112], but did not appear to be taken into account by the Tribunal in its findings as to the overall inadequacy of the applicant’s expression of remorse. It is also unclear what the Tribunal means by “bare” expressions of remorse, noting that levels of eloquence may vary across persons in the community.

64 Further, at D[122] the Tribunal found that there was “no certainty” as to whether the applicant would continue with his rehabilitation efforts if allowed to stay in Australia. The threshold of certainty in this regard which the Tribunal required is, in my view, unreasonable, and not required by Direction 99.

65 On balance, I am satisfied that the findings of the Tribunal concerning the rehabilitation of the applicant were not logical. Grounds of review 3 and 3A are substantiated.

The risk of the applicant re-offending (grounds 3 of review and 3A)

66 The Tribunal concluded at D[126] that the risk to the Australian community should the applicant commit further offences or engage in other serious conduct both existed and was a material risk.

67 In its reasons for decision the Tribunal gave detailed consideration to the risk of the applicant re-offending. In contrast to the brief consideration by the Tribunal of the rehabilitation efforts of the applicant, the Tribunal’s overall analysis of the risk of the applicant re-offending was lengthy. In particular, I note the reasons of the Tribunal at D[81]-[126].

68 Dr Kwok’s evidence was that the applicant presented with a moderate risk of reoffending that would reduce to a low risk if he followed and responded to a recommended treatment plan in the community. The Tribunal noted this evidence at D[90]. However, the Tribunal formed its views concerning the prospect of the applicant reoffending by reference to other uncontested evidence (including from a former partner of the applicant), the evidence of the applicant himself, the QCS Report, and the sentencing remarks of Magistrate McGarvie cited by the Tribunal at D[117]. The Tribunal concluded:

125.    Based on Mr Rowe’s past, risk factors such as intimate relationships, stress and work pressure increase his risk of engaging in problematic behaviour which manifests as a risk of reoffending. Acknowledging his evident rehabilitation efforts, the Tribunal cannot be satisfied that these are sufficient to compensate, manage or neutralise the risk factors. If the Tribunal decided to set aside the Visa cancellation decision it is cognisant that Mr Rowe would, more likely than not based on his evidence of his work habits, work long hours for much of the week to re-establish his businesses.

69 If I were not satisfied that the Tribunal’s findings concerning the rehabilitation prospects of the applicant were infected by jurisdictional error, I would be satisfied that its findings referable to the prospect of the applicant reoffending were open on the material before the Tribunal. However inevitably the rehabilitation or otherwise of the applicant is a relevant consideration for the Tribunal in assessing the risk of the applicant reoffending. That this is so, is recognised by para 8.1.2(2) of Direction 99.

70 It follows that grounds of review 3 and 3A are substantiated

The applicant’s business interests (grounds of review 5 and 5A).

71 Paragraph 9(1)(d) of Direction 99 required that the “impact on Australian business interests” be taken into account. Relevantly, para 9.4(1) provided that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. The applicant contended, in summary, that the Tribunal failed to take into account his arguments regarding the impact on his Australian business interests, in particular the Tribunal incorrectly construed “Australian business interests” as meaning the impact on the broader market rather than the impact on the applicant’s actual earthmoving business and hydraulics business.

72 Relevantly, the Tribunal observed:

261.    In assessing this consideration, the Tribunal notes (in no particular order), Mr Rowe’s skill in fabricating parts for imported hydraulic equipment when spare parts are not readily available, his service ethic, his clear expertise in working with high pressure hydraulic systems and the likely relative importance of these characteristics in a regional economy where commercial fishing and earthmoving are relevant industries.

262.    The Tribunal considers that a decision to affirm Mr Rowe’s Visa cancellation decision will impact on Australian business interests in different ways, assuming that such a decision will cause Mr Rowe to permanently close his hydraulics and earthmoving businesses. It is relevant to emphasise at this juncture that both businesses are presently not operating.

263.    First, the Tribunal finds that Mr Rowe’s two businesses should be distinguished. Earthmoving, as attested to in Mr Goulding’s oral testimony, continues whether Mr Rowe’s business is operating or not. The Tribunal considers and finds that the impact on Australian business interests of this business ceasing if a decision to affirm Mr Rowe’s Visa cancellation decision is made is minimal.

264.    The testimony of Mr Goulding and Mr Jones indicates that the absence of Mr Rowe’s hydraulic business has led some customers to hold off seeking repairs, others to take their business to Brisbane and for some competitors to increase their services. This testimony aligns with the expected operation of general market economics around the supply and demand of services and goods.

265.     Turning to Dr Donnelly’s business interests’ contention, the Tribunal understands the contention to be that if the Tribunal sets aside the Visa cancellation decision, Mr Rowe would put his businesses back into operation. This would result in significant positive impacts on the Australian community, including the potential for job creation for Australian residents, contributions to the Australian economy, and advantageous outcomes for the construction sector in Queensland.

266.    The Tribunal considers that this contention does not apply well in terms of the earthmoving business. Earthmoving is somewhat fungible and there was no evidence before the Tribunal to the effect that earthmoving operations in the Hervey Bay region had ceased. Mr Goulding gave oral testimony to the contrary.

267.    The Tribunal considers that the impact on Australian business interests of the hydraulic repair and servicing business ceasing if a decision to affirm Mr Rowe’s Visa cancellation decision is made is more complex than that of the earthmoving business. In the short-term, as the situation is now with the business not operating, customers will hold back or seek alternatives until the situation resolves. This state of affairs represents, to some extent, a negative impact on Australian business interests that used Mr Rowe’s services in line with Dr Donnelly’s business interests’ contention. Put simply, prices and availability of hydraulic services in the Hervey Bay region will likely already have changed and will continue to change in part due to the absence of Mr Rowe. But the price of a service or goods is a signal wrapped in information. Competitors will see the signal and decide whether to enter and fully commit to the market to replace Mr Rowe over the medium to long-term if a decision to affirm Mr Rowe’s Visa cancellation decision is made. Simple market economics suggest demand will be met with supply. As Mr Hawker observed, this is a net positive impact for Australian business interests.

268.    The Tribunal finds, upon consideration, that the impact on Australian business interests from Mr Rowe’s earthmoving business ceasing if he is returned to the United Kingdom is minimal. It further finds that there will likely be a short-term impact on Australian business interests if Mr Rowe’s hydraulic repair and servicing business ceases.

(footnotes omitted)

73 The Minister submitted, that to the extent the applicant submitted that the Tribunal failed to take into consideration the applicant bears the onus of establishing, on the balance of probabilities, that the relevant matter not considered, relying on BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [38]. The Minister also submitted that the onus is not lightly discharged and is only discharged by clear evidence: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [48]). I accept the accuracy of these principles. However, I am persuaded that the applicant has discharged the onus.

74 The authorities are clear that, in applying para 9(1)(d) of Direction 99, the focus has to be on the impact on Australian business interests if the non-citizen’s visa is cancelled: Singh v Minister for Home Affairs [2019] FCA 905 at [10]; Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [65]. However:

The evidence before the Tribunal was that the applicant’s businesses were not operating, the inference being that the applicant was the driving force behind the businesses. That this was the case was not addressed by the Tribunal in the context of considering the impact on Australian business interests.

It was entirely unclear how the Tribunal concluded at D[266] that the earthmoving industry in Australia was “fungible” such that it was irrelevant whether the applicant’s businesses continued. The Tribunal referred to no evidence to support that proposition. Certainly, it does not appear there was any evidence before the Tribunal of the status of the construction industry in Australia such as to support a finding that loss of the applicant’s businesses had, at best, a minimal impact on Australian business interests.

At D[264] the Tribunal noted evidence that the absence of at least the applicant’s hydraulic business appeared to have diminished the availability of such services in the Hervey Bay region in multiple ways. No consideration appears to have been given by the Tribunal to the issue of regional businesses being an aspect of Australian business interests.

75 In my view, the Tribunal erred in applying paras 9(1)(d) and 9.4 of Direction 99. It follows that grounds of review 5 and 5A are substantiated.

Materiality

76 In most cases an error will not be jurisdictional unless it is material to the decision that has been made: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]-[46]; Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 at [183]-[185]. Justices Bell, Gageler and Keane in SZMTA relevantly observed:

45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

77 I am satisfied that the errors of the Tribunal applying Direction 99 referable to the rehabilitation of the applicant, his risk of reoffending, and the impact on Australian business interests, were material, such that correct consideration could have resulted in a different decision of the Tribunal.

CONCLUSION

78 The applicant is entitled to the relief he has sought in his further amended originating application for review of a migration decision, including costs.

Associate:

Dated:    15 July 2025