Federal Court of Australia

LGC24 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1023

ORDERS

THE COURT ORDERS THAT:

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

2.    There issue a writ of certiorari directed to the respondent quashing his decision made on 5 June 2024.

3.    The Minister pay the applicant’s costs to be assessed if not otherwise agreed.

4.    A writ of mandamus issue directing the respondent to determine the applicant’s application according to law.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court is a further amended originating application for review (application) of a decision by the Minister for Immigration and Citizenship (respondent or Minister) made on 5 June 2024 (decision). The application was filed on 2 October 2024. In the decision the Minister exercised his discretion under s 501A(3) of the Migration Act 1958 (Cth) to set aside an earlier decision of the Administrative Appeals Tribunal (Tribunal) on 27 March 2024, and refused the applicant’s application for a Skilled (Provisional) (Class VC) visa (visa).

2    Although in the application the applicant relied on two grounds of review, at the hearing she pressed only one ground, namely, that the decision of the Minister was legally unreasonable.

3    It is convenient at this point to examine the background to the present application.

Background

4    The applicant was born in 1988 and raised in Indonesia before travelling to Australia for the first time on 18 January 2011. The applicant travelled to and from Australia several times before her final arrival on 18 January 2016.

5    On 17 June 2016, the applicant and a co-accused were in a car and stopped by the New South Wales Police. The police conducted a search of the vehicle and found $500,000 in a box and $40,000 in a handbag sitting near the applicant.

6    On 10 January 2017, the applicant applied for the visa.

7    On 29 September 2017, the applicant was convicted in the Downing Centre District Court in New South Wales for dealing with property reasonably suspected of being proceeds of a crime where the value of cash was greater than $100,000. The applicant was sentenced to 12 months imprisonment for that offending.

8    On 8 December 2023, a delegate of the Minister (delegate) exercised their discretion to refuse to grant the applicant the visa under s 501(1) of the Migration Act.

9    On 9 January 2024, the applicant applied for a review of the decision by the delegate with the Tribunal. On 27 March 2024, the Tribunal set aside the delegate’s decision and substituted it with the direction that the discretion to refuse to grant the visa not be exercised.

10    On 5 June 2024, the Minister exercised his discretion under s 501A(3) of the Migration Act to refuse to grant the visa as he was satisfied that the applicant did not pass the character test and that the refusal of the visa was in the national interest. In doing so, the Minister set aside the Tribunal decision. This is the decision subject to judicial review before me in these proceedings.

11    On 2 October 2024, the applicant filed the present application.

Decision of the Minister

12    Section 501A(3) of the Migration Act enables the Minister to set aside the original decision (in this case, the decision of the Tribunal) not to exercise the power conferred by s 501(1) to refuse to grant a visa and refuse the visa if:

    the Minister is satisfied that the person does not pass the character test; and

    the person does not satisfy the Minister that the person passes the character test; and

    the Minister is satisfied that the refusal decision is in the national interest.

13    On 5 June 2024, the Minister refused to grant the applicant the visa on the following basis:

Refusal outcome

(d) I am satisfied that [the applicant] does not pass the character test and [the applicant] has not satisfied me that she passes the character test, and I am satisfied that it is in the national interest to refuse [the applicant]’s Skilled (Provisional) (Class VC) visa application. I have decided to exercise my discretion under s501A(3) of the Act. I hereby set aside the decision of the AAT dated 27 March 2024 and refuse [the applicant]’s Skilled (Provisional) (Class VC) visa application. My reasons for this decision are set out in the attached Statement of Reasons.

(applicant’s name removed)

14    The Minister stated that he exercised his discretion because he was satisfied that the applicant did not pass the character test in light of the operation of s 501(6) of the Migration Act, referable to the terms of s 501(7)(c). In so finding, the Minister noted that the applicant had been convicted of the offence of dealing with property reasonably suspected of being proceeds of a crime, for which she was sentenced to 12 months’ imprisonment.

15    The Minister further considered whether the cancellation of the applicant’s visa was in the national interest. The Minister noted that matters of national interest included, amongst other things, the protection of the Australian community and the expectations of the Australian community and relevantly formed the following views, inter alia:

    In relation to the seriousness of the applicant’s criminal conduct, the offence of dealing with property reasonably suspected of being proceeds of a crime can be viewed seriously by the Australian community. The 12-month sentence received by the applicant was a further indication of the seriousness of the offending, particularly because outcomes involving incarceration of the offender are the last resort in the sentencing hierarchy.

    In relation to the risk to the Australian community that may be posed by the applicant, the Minister considered the nature of harm should the applicant reoffend and any factors contributing to past conduct. He found the following:

Nature of the harm should [the applicant] reoffend

34.    I consider that dealing with property reasonably suspected of being the proceeds of crime has the potential to cause financial harm to members of the Australian community should [the applicant] reoffend in a similar manner.

35.    I have also had regard to whether [the applicant] poses a risk to the Australian community through committing further criminal offences by engaging in dealing with property reasonably suspected of being proceeds of crime, recognising that the existence of such a risk is a further indication that it is in the national interest to refuse to grant a visa.

36.    In assessing the likelihood of [the applicant] reoffending in the future, I have considered factors that may assist to explain [the applicant]’s past conduct, as well as her more recent conduct, remorse and rehabilitation.

Factors contributing to past conduct

37.    I have taken into account the following information provided by [the applicant]:

•    her cousin from Indonesia had asked [the applicant] to collect cash so that her cousin could purchase an apartment in Melbourne. When [the applicant] asked how her cousin obtained so much money, her cousin told her that it was the proceeds of a gambling win, and [the applicant] believed her cousin due to the nature of their relationship;

•    shortly afterwards, someone who is not personally known to [the applicant] contacted her to arrange a meeting place for the transfer of cash. [The applicant] chose a public place to meet with this person and asked her husband to accompany her for safety reasons. [The applicant] and her husband collected the money from the person and proceeded to go grocery shopping; and

•    [the applicant] was shocked when she and her husband were arrested. It never crossed her mind that the money was suspected to be the proceeds of crime.

Remorse and rehabilitation

38.    In relation to the above incident, [the applicant] has made the following representations:

•    she does not have enough evidence to prove that she is innocent;

•    having had to deal with the police and court process was the most horrible experience that she has had to endure in her life;

•    she has vowed never to put herself in such a situation again;

•    she will never be so trusting of people again and will never want to be part of anything suspicious ever again;

•    she has learnt an important lesson from her lack of better judgement, which led to her being convicted of a crime;

•    she regrets everything that has happened; and

•    there is a negligible risk of her reoffending.

39.    I have taken into consideration that [the applicant] has applied for a Skilled (Provisional) (Class VC) visa. While this is a temporary visa, I understand that [the applicant] intends to remain permanently in Australia. I have considered the risk of harm to the Australian community in the context of the stay period and specific purposes of the visa application.

40.    I have also had regard to the fact that there is no material before me to demonstrate that [the applicant] has undertaken any rehabilitation since committing her offences of dealing with property reasonably suspected of being the proceeds of crime.

Conclusion on risk to community

41.    The Australian government is committed to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens.

42.    I have found that the nature of [the applicant]’s conduct is serious. I have further found that dealing with property reasonably suspected of being the proceeds of crime has the potential to cause financial harm to members of the Australian community, if repeated, and that is supports and facilitates illegal activities within the Australian community.

43.    On balance, I consider the likelihood that [the applicant] will reoffend is low, but not negligible. I further consider that should [the applicant] engage in similar conduct again, it may result in financial harm to members of the community or facilitate crime in Australia. I have given this weight towards a finding that it is in the national interest to set aside the AAT decision and refuse [the applicant]’s visa application. Furthermore, I have also considered that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(applicant’s name removed)

    In relation to the expectations of the Australian community, the Australian community expects non-citizens to obey laws while in Australia, and that the Australian Government would not allow non-citizens who pose an unacceptable risk to the community to remain in Australia. The Minister found, inter alia:

45.    I have noted [the applicant]’s representations regarding this consideration, which state that her single instance of offending is at the lower end of serious offending, and therefore that low weight should be afforded to the expectations of the Australian community.

46.    I have considered [the applicant]’s specific circumstances, to the extent relevant to my consideration of the matters discussed in other parts of this statement of reasons. I consider that the expectations of the Australian community, which include an expectation that non-citizens who commit serious breaches of the law should not be allowed to enter or remain in Australia, weigh somewhat in favour of visa refusal.

47.    I have attributed weight to the Government's views about the expectations of the community towards a finding that it is in the national interest to set aside the AAT decision and refuse [the applicant]’s visa application.

(applicant’s name removed)

    In relation to the legal consequences of the decision, the Minister considered the applicant’s submissions that she would face discrimination if returned to Indonesia due to her interfaith marriage. A conclusive finding as to whether non-refoulement obligations are owed in respect of the applicant is not possible without a full and comprehensive process. The Minister therefore found it likely that the applicant would apply for a protection visa and relevantly observed:

55.    I am cognisant of the possibility that [the applicant] may be refused a Protection visa because of the ineligibility criteria, even if found to satisfy the protection criteria. However, even if she is not granted a Protection visa, any protection finding made in relation to [the applicant] in the course of considering her Protection visa application in respect of Indonesia would prevent her being removed to that country, except in the limited circumstances set out in s197C(3)(c).

56.    While I am aware that Australia's international non-refoulement obligations may not be fully encompassed by the Protection visa criteria in s36(2), there is no information currently before me to indicate that a protection finding for the purposes of s197C(3), which would prevent [the applicant]’s removal to Indonesia, may not be made for her even if she engages non-refoulement obligations with respect to that country.

(applicant’s name removed)

    Accordingly the Minister found that cancellation of the applicant’s visa was in the national interest.

16    The Minister then examined other considerations that might support a decision not to cancel the applicant’s visa despite the Minister being satisfied that it was in the national interest to do so. In particular the Minister had regard to:

    The best interests of minor children, and the fact that the applicant had a minor daughter aged three years at the time. The Minister noted that the applicant’s daughter and husband were dependent on the applicant’s application for her visa. Accordingly, if the visa application were refused, this would not result in separation between her minor daughter and either of her parents.

    The applicant’s ties to Australia. The Minister noted that the applicant had been ordinarily resident in Australia for 13 years but spent her formative years outside of Australia. The Minister also considered the applicant’s family ties to Australia and found her immediate family residing in Australia were her minor daughter and husband. Further, the applicant’s social ties and other ties to the community were considered, and the Minister noted that the applicant had links through friends and other persons who reside in Australia, and through her contribution to the Catholic Indonesian Community Church, her educational training in Australia and her work as a marketing officer and marketing manager.

    The impediments that may be faced by the applicant if removed to Indonesia. The Minister relevantly noted:

Age and health

79.    [The applicant] is aged 35 and has not identified any significant adverse mental or physical health issues.

80.    I have had regard to [the applicant]’s statement that she her left hand has a tremor, suffers from serious back pain and has been diagnosed with endometriosis. However, I note that there is no material before me that would demonstrate that these would constitute impediments to her return to Indonesia.

Language and/or cultural barriers

81.    The evidence before me indicates that [the applicant] was born and raised and spent her formative years in Indonesia, is fluent in Indonesian, and has returned to live in Indonesia for approximately 18 months since she first arrived in Australia. [The applicant]’s father and three brother's reside in Indonesia, along with [the applicant]’s husband's family. [The applicant] has a house in Indonesia, and has previously held a number of positions of employment in Indonesia.

82.    I have also had regard to the evidence that, if [the applicant] is not granted the visa, her immediate family, being her husband and minor daughter, will be required to relocate to Indonesia with [the applicant].

83.    I find that the difficulties [the applicant] would be likely to experience on moving to Indonesia will be limited, given that the main language in her home country is Indonesian, in respect of which [the applicant] is fluent, and the length of time that [the applicant] has spent residing in Indonesia during her formative years and as an adult.

Social, medical and/or economic support available in (Country)

84.    I find that [the applicant] will, if needed, have access to health and welfare services in Indonesia on the same basis as other nationals, although I acknowledge that such services may not be of a standard and accessibility comparable to that of Australia. I also acknowledge that [the applicant] would need to establish a new network of contacts for medical support, if needed.

85.    While [the applicant] is not the subject of a protection finding, I note that she has made claims relating to Australia's non-refoulement obligations. These claims have not yet been assessed. I recognise that [the applicant]’s fear in relation to her possible future treatment in Indonesia in itself constitutes an impediment to her return and have given this weight against refusal of the visa.

(applicant’s name removed)

17    The Minister concluded that considerations against cancellation of the applicant’s visa were outweighed by the national interest considerations in this case. Accordingly, the Minister exercised his discretion to set aside the decision of the Tribunal.

ground of the application

18    The ground relied on by the applicant was broken down into 10 particulars, as follows:

1.    The decision of the respondent made on 5 June 2024 is affected by errors of legal unreasonableness.

1.1.    Paragraph [40] of the respondent’s decision states in part “there is no material before me to demonstrate that [the applicant] has undertaken any rehabilitation since committing her offences”. Whereas evidence of the rehabilitation by the applicant was before the respondent.

1.2.    First in time, the applicant satisfied her good behaviour bond in NSW. ‘Good behaviour’ after a conviction, means the same thing as ‘rehabilitation’. Satisfying the bond must be taken as undertaking rehabilitation.

1.3.    In Direction no. 99 and again in Direction no. 110 the respondent takes “evidence of rehabilitation” from “time spent in the community” since an applicant’s last offence.

1.4.    Second in time, the applicant spent 8 years in the community that were productive and faultless. The span of 8 years since her last offence must be taken as undertaking rehabilitation.

1.5.    The respondent’s finding on rehabilitation is contrary to the evidence.

1.6.    Paragraph [91] of the respondent’s decision states “I have had regard to the Australian Transaction Reports and Analysis Centre material in relation to [the applicant].”

1.7.    The respondent’s decision does not indicate what regard he had to the Reports and material. It is not possible to comprehend how that regard contributes to the respondent’s decision. It is not intelligible in the sense stated in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [25] and [76].

1.8.    Moreover, the respondent was represented in the Administrative Appeals Tribunal in the applicant’s matter. The respondent was under a duty to assist the Tribunal to the correct and preferable decision. Yet, the respondent made no reference to the Australian Transaction Reports and Analysis Centre material.

1.9.    The respondent wrote in his decision that the applicant committed “offences” and had “convictions” at paragraphs [40] and [58]. Whereas, the applicant has a single conviction.

1.10.    The respondent has erred by treating as an ‘offence’ and as a ‘conviction’ the matter that was taken into account by the District Court on 29 September 2017, when sentencing the applicant in accordance with the Form 1 scheme. That is contrary to law for the reasons given in Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 468.

(underlining in original omitted)

Submissions of the Parties

Submissions of the applicant

19    In summary, the applicant submitted:

    The respondent overlooked the evidence provided when concluding that the applicant had not undertaken any rehabilitation since her offending. There were materials available to the Minister to which he should have had regard, including, inter alia:

Submission in Response to Natural Justice Letter

In September 2019, [the applicant] satisfied the conditions of her good behaviour bond, without legal troubles of any kind.

[The applicant] has a single conviction. She is remorseful and rehabilitated. All the facts show that the conviction was an aberration in her conduct and character.

And:
Her offence is best understood as an aberration. It is outside her usual character. [The applicant] has no further offending and no offending beforehand either. She has returned to her normal law abiding and respectful character. She is entirely rehabilitated.

Direction No. 99 indicates that the decision-maker should consider and give weight to the time spent by [the applicant] in the community, since her offence, which took place on 17 June 2016. 6 years and 10 months have passed. [The applicant] has been a positive and productive member of the community throughout. Her references state she has impressed her professional and religious community with her character and accomplishments.

…

Statement of Facts, Issues and Contentions

30. In assessing risk, Direction No. 99 states that the Tribunal should consider and give weight to the time spent by [the applicant] in the community since her offence. [Clause 8.1.2 (2)(b)(ii)] The offence took place on 17 June 2016. Seven years and 8 months have elapsed.

31. During those years in the community, [the applicant] has been a positive and productive member of the community throughout. Her references state she has impressed her professional and religious community with her character and accomplishments.

Statement by the Applicant

9. I assert that my past mistakes do not define my character or my potential. Since the time of my convictions, I have embarked on a journey of self-improvement and accountability.

10. I respectfully request that the AAT considers the totality of my circumstances, including my efforts and evidence of good conduct, in adjudicating my appeal. I firmly believe that I have demonstrated genuine remorse for my past actions and am deserving of a favourable outcome.

(applicant’s name removed)

    The respondent’s conclusion that the applicant did not undertake any rehabilitation lacked an evident and intelligible basis, was not supported by the probative material, and was contrary to the evidence.

    The Minister observed that he had regard to the Australian Transaction Reports and Analysis Centre (AUSTRAC) material in relation to the applicant but did not specify how much weight the material was afforded, or how that material contributed to the decision. As a result, the decision reached lacked an intelligible foundation.

    The Minister wrongly stated that the applicant had more than one conviction. In his decisions he made references to “offences” and “convictions” despite the applicant having only one conviction.

    Aside from the applicant’s conviction, there were no considerations looked at by the Minister which should have resulted in an adverse finding. In particular, the best interests of minor children consideration favoured the applicant and should have been weighed more heavily in her favour.

    The Court can be satisfied that the applicant’s ground of review is made out and should make the orders sought.

Submissions of the respondent

20    In summary, the respondent submitted:

    There was no material before the Minister that might have indicated that the applicant had undertaken any rehabilitation since her offending. The applicant omitted to undertake any further criminal conduct since her offending, but this does not amount to having undertaken rehabilitation. In any event, an omission to undertake further criminal conduct could not have possibly been subject to any material the Minister could have referred to. The use of the word “undertaken” was plainly used to refer to the applicant having undertaken a course or course of treatment, for example. As a result, it was open to the Minister to accord whatever weight and importance to that consideration he deemed appropriate.

    The AUSTRAC material referred to by the Minister in his Reasons was put before him as the delegate referred to it in their previous decision and as it was part of the G-Documents. The Minister simply had regard to that material but drew nothing from it and did not regard it as material to the overall decision. The fact that the Minister did not make the same finding as the delegate in regard to the AUSTRAC material was in favour of the applicant.

    In relation to the submission that the Minister wrongly referred to multiple convictions, the pertinent authority is the decision in Lee v Minister for Home Affairs [2019] FCA 1669, which considered s 16BA of the Crimes Act 1914 (Cth). The Minister did not contravene s 16BA(10) of the Crimes Act of the Commonwealth and any minor errors in reasons do not necessarily give rise to jurisdictional error.

Consideration

21    Leading cases identifying the concept of legal unreasonableness in decision-making are decisions of the High Court in Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 371 at [91] and more recently ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439, 451 at [20]. As also explained by the Full Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1:

44.    In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: 297 ALR 225; [2013] HCA 18 at [27]- [28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [39] per Gummow A-CJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”.

(emphasis added)

22    More recently the Full Court observed in Palmer v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 154:

101.    … It can be accepted that unreasonableness “is not confined to why a statutory decision is made; it extends to how a decision is made”: Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, 371 [91] (Li). In addition to there being an “intelligible justification” for the decision, the decision-maker must ensure that their decision is made “through an intelligible decision-making process”: see ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439, 451 [20], citing Li at 375 [105]. It follows that the question which requires consideration is whether the power was exercised in a manner that was not reasonable in accordance with the implied legislative intention: Li at 351 [29], 362 [63], 370 – 371 [88] – [92].

(emphasis added)

23    Further, I note the comment of the Full Court in Lewer v Minister for Home Affairs [2023] FCAFC 121 where their Honours referred to:

75.    … the high threshold that must be met before it can be concluded that the Minister’s decision in terms of outcome or process was legally irrational, illogical or unreasonable…

24    To the extent that the applicant is required to meet a high threshold in satisfying the Court that the Minister’s decision was affected by unreasonableness, I also note similar observations of the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [33].

25    At the hearing Counsel for the applicant addressed the particulars of the ground of review in three groups. Those groups were:

(1)    the Minister fell into a jurisdictional error or, in the alternative, error of law on the face of the record in misunderstanding and misapplying that aspect of the evidence and the law relevant to his consideration in relation to the risk to the community posed by the risk of reoffending in misunderstanding what was involved in rehabilitation (particulars 1.1-1.5);

(2)    the Minister erred in law on the face of the record or fell into jurisdictional error in failing to give any lawful reasons in relation to his treatment of the AUSTRAC records (particulars 1.6-1.8); and

(3)    the Minister fell into jurisdictional error in misunderstanding the law in relation to section 16BA of the Crimes Act of the Commonwealth in treating as a conviction a matter taken into account on a form under that section (particulars 1.9-1.10).

26    It is convenient to consider whether the decision of the Minister in this case was affected by legal unreasonableness in accordance with these issues.

(1) The Minister fell into a jurisdictional error or, in the alternative, error of law on the face of the record in misunderstanding and misapplying that aspect of the evidence and the law relevant to his consideration in relation to the risk to the community posed by the risk of reoffending in misunderstanding what was involved in rehabilitation (particulars 1.1-1.5).

27    At 39-40 of the decision the Minister relevantly found:

39.    I have taken into consideration that [applicant] has applied for a Skilled (Provisional) (Class VC) visa. While this is a temporary visa, I understand that [the applicant] intends to remain permanently in Australia. I have considered the risk of harm to the Australian community in the context of the stay period and specific purposes of the visa application.

40.     I have also had regard to the fact that there is no material before me to demonstrate that [the applicant] has undertaken any rehabilitation since committing her offences of dealing with property reasonably suspected of being the proceeds of crime.

(applicant’s name removed)

28    The Minister then relevantly concluded that the nature of the applicant’s conduct was serious, and that although the likelihood that the applicant would reoffend was low, it was not negligible. The Minister considered that should the applicant engage in similar conduct again, it could result in financial harm to members of the community or facilitate crime in Australia (reasons for decision [41]-[43]). Accordingly, the Minister concluded that the use of his discretionary power to refuse the applicant’s visa application was in the national interest (reasons for decision [61]).

29    The applicant submitted in summary, that – contrary to the observation of the Minister at [40] of his reasons for decision – there was material before the Minister demonstrating rehabilitation by the applicant, including:

(1)    The applicant satisfied the conditions of her good behaviour bond;

(2)    Her usual character is law-abiding, and she has resumed that character, after a single conviction;

(3)    She has spent over 7 years in the community as a positive and productive member. Community members attest to her character; and

(4)    The applicant’s time in the community speaks directly to rehabilitation as it is discussed in the respondent’s Ministerial Direction no. 99 and his further Ministerial Direction no. 110.

30    The Minister submitted that the word “undertaken” in para [40] was part of his reasoning, and made it clear that the Minister was referring to the absence of any evidence that the applicant had engaged with any “rehabilitative programs or courses, or psychological support, to address her offending behaviour” in coming to the conclusion that the national interest warranted a finding that the applicant’s visa be refused.

31    As Counsel for the applicant pointed out, in respect of the assessment of risk that may be posed by a non-citizen to the Australian community, cl 8.1.2 of both Ministerial Direction 99 and Ministerial Direction 110 direct that regard be had by decision-makers to, inter alia:

…

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

…

(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).

32    It is not in dispute that the Minister was not bound by Direction 99 (or Direction 110). However to the extent that, in his reasoning, the Minister has followed the language of both Directions referable to rehabilitation, at least in respect of the extent to which the applicant posed a risk to the community, neither Direction in any way contemplates that a visa applicant should “undertake” rehabilitation. Rehabilitation contemplates restoration of a person to a good condition or an improved form: see Macquarie Dictionary definition of “rehabilitate”. It follows, as a matter of logic, that rehabilitation of a person is, as was reflected in cl 8.1.2(b)(ii) of both Directions, a state of being which is achieved by that person. I note for example recognition of this language in such cases as Hogan v Hinch [2011] HCA 4 at [32]; Baker v R [2004] HCA 45; (2004) 223 CLR 513 at [69], [70]; and Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at [4].

33    Plainly, successful completion of rehabilitative programmes undertaken by a person with a criminal conviction would be one relevant consideration for the Minister in determining whether the person has “achieved rehabilitation”. It is not in dispute that it was open to the Minister to accord whatever weight and importance to material before him as he chose in considering the national interest. However, for the Minister to find that there was no material before him being evidence of the applicant’s rehabilitation, notwithstanding the clear evidence of unblemished conduct of the applicant in the community in the seven years following her conviction which suggested rehabilitation of the applicant, is contrary to logic.

34    It follows that, notwithstanding the high threshold the applicant was required to satisfy, I am persuaded that the erroneous finding of the Minister that there was no evidence of rehabilitation of the applicant was unreasonable within the meaning of such authorities as Li and ABT17.

35    Would the apparent failure on the part of the Minister to take into account the evidence of the applicant’s rehabilitation have been material, such that the decision of the Minister could – not would – realistically have been different had there been no error? As the High Court found in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16], what must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error.

36    In my view the error of the Minister in respect of this issue was material to his decision. The Minister’s finding that it was in the national interest for the applicant’s visa to be refused because of the risk to the community was significantly influenced by the Minister’s view of the likelihood of the applicant reoffending, which in turn was informed by the Minister’s conclusion that there was no evidence of rehabilitation. Had the Minister taken into account evidence of the applicant’s rehabilitation, the decision of the Minister could realistically have been different.

37    The applicant has made out particulars 1.1-1.5 of ground 1.

(2) The Minister erred in law on the face of the record or fell into jurisdictional error in failing to give any lawful reasons in relation to his treatment of the AUSTRAC records (particulars 1.6-1.8).

38    At [90]-[91] of his reasons for decision the Minister found:

ADDITIONAL MATTERS CONSIDERED

90. In addition to the considerations discussed above, I have also taken into account any other matters arising from available information that are relevant to the present decision but not already discussed above.

91. I have had regard to the Australian Transaction Reports and Analysis Centre materials in relation to [the applicant].

39    The manner in which the Minister treated AUSTRAC materials concerning the applicant is entirely unclear.

40    Counsel for the Minister submitted that the Minister recorded that he looked at that material, drew nothing from it, and did not regard it as material to the overall decision, such that no error arises. This explanation can only be regarded as an exercise in supplementing the Minister’s reasoning, for which there is no apparent basis. The reality is that there is no intelligible justification for the inclusion of the Minister’s remark at [91].

41    A key question however is whether the observation of the Minister at [91] was material to the Minister’s decision. To the extent that the Minister can be said to have actively engaged with the AUSTRAC materials, it is unclear whether he considered them favourable to the applicant or otherwise, and it is not possible to make a finding either way. In the circumstances I do not consider the Minister’s comment at [91] material to his decision.

42    It follows that the applicant has not substantiated particulars 1.6-1.8.

(3) the Minister fell into jurisdictional error in misunderstanding the law in relation to section 16BA of the Crimes Act of the Commonwealth in treating as a conviction a matter taken into account on a form under that section (particulars 1.9-1.10)

43    Section 16BA of the Crimes Act contemplates (inter alia) a sentencing Court taking into consideration whether an accused person admits his or her guilt in respect of all or any of the offences specified in a list contained in a document in the form prescribed for the purposes of s 16BA(1)(a), and wishes them to be taken into account by the Court in passing sentence on him or her for the offence or offences of which he or she has been convicted. Materially to the application before me, s 16BA(10) provides:

(10) An offence taken into account under this section shall not, by reason of its so being taken into account, be regarded for any purpose as an offence of which a person has been convicted.

44    In respect of these particulars, the applicant takes issue with paras [40] and [58] of the Minister’s reasons for decision to the extent that the Minister refers to the applicant “committing her offences of dealing with property reasonably suspected of being the proceeds of crime” (para [40]) and the “sentence imposed for her convictions” (para [58]). In summary, the applicant contends that the Minister erred in finding that the applicant received more than one conviction, whereas in reality the applicant has only one conviction, and that this error informed the Minister’s view of the seriousness of the applicant’s criminal history.

45    I further note however that the Minister in his reasons also referred (incorrectly) at, paras [20], [30] and [32] to the applicant’s “convictions” for dealing with property reasonably suspected of being proceeds of crime, and that the Minister found at [32] those “convictions” relevant to consideration of the national interest.

46    It is not in dispute for the purposes of the present proceedings that the applicant has only one conviction, or that there was a reference on the applicant’s Nationally Coordinated Criminal History Check dated 30 May 2024 to a Schedule taken into account in sentencing by the Downing Centre District Court for the purposes of s 16BA of the Crimes Act. It is plain that this material was taken into consideration by the Minister.

47    In Lee Abraham J dealt with a similar issue to that raised now by the applicant. In particular I note the following comments of her Honour in that case:

Ground 8: the Tribunal erred in describing offences as convictions

62.    The applicant complained about a passage in paragraph [27] where the Tribunal stated “[w]hile some of the drug offences were subsumed during the sentencing, the convictions indicate that the applicant had been convicted of multiple offences which include trafficking, possession, and import/export of prohibited drugs”. The applicant submitted that he was only convicted of importation of a commercial quantity of a border controlled drug, and the other offences were subsumed in the sentence having been taken into account by being placed on a form pursuant to s 16BA of the Crimes Act 1914 (Cth). He submitted he had not been convicted of those other offences and the Tribunal had made an incorrect finding.

63.    The respondent accepted those offences were on a form, were not contested, and were taken into account by the sentencing judge in assessing the overall criminality of the applicant’s offending. The respondent submitted that while these additional offences were not convictions, the Tribunal was entitled to consider all of those matters as they concerned the applicant’s overall criminal offending. Consequently, on the respondent’s submission there was no substantial misunderstanding of fact that impacted on the jurisdiction of the Tribunal.

64.    The sentencing remarks for the applicant’s offending reflect that the respondent is correct that the offences of trafficking and possession were placed on a s 16BA form. Section 16BA provides a procedure whereby an offender can request a sentencing judge, when sentencing them for offences to which they plead or have been found guilty, to take into account other offences. In doing so it is necessary to comply with the procedure set out in Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1990 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146; R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72]. This includes that those offences must be admitted by the offender. The consequence is that the sentence imposed for the offence, in which the form offences are taken into account, will be increased, and therefore may be higher than might otherwise be appropriate. In this instance, there is no conviction in relation to the offences on the form.

65.    However, an error of fact is not, without more, jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [53]; ESU17 v Minister for Home Affairs [2019] FCA 300 at [17]. For example, where an error of fact leads to unreasonableness, illogicality, irrationality or reasoning for which there is no probative basis, and the erroneous finding is material to the ultimate decision, jurisdictional error may be established: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [41(d)]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] – [132], [135] per Crennan and Bell JJ; see for example: Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309. The “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] per Robertson J. Circumstances giving rise to jurisdictional error do not arise in this case.

66.    For the offences to be taken into account in the s 16BA form, the applicant must have admitted them. The applicant does not have a conviction for those offences, but they are offences which are proved. Referring to the applicant having been convicted of those offences is incorrect. However, the error is not a substantial one, such as to amount to jurisdictional error. The import of the Tribunal’s comments in that passage is that he has committed more than one offence, which is correct. The Tribunal’s factual error had no consequence on the outcome and did not constitute jurisdictional error.

67.    This ground has not been established.

(emphasis added)

48    In the present case, to adopt the words of Abraham J: for the offences to be taken into account in the s 16BA form, the applicant must have admitted them, and although the applicant did not have a conviction for those offences, they were offences which were proved. In referring to the applicant having been convicted of those offences the Minister was incorrect, however the error is not a substantial one, such as to amount to jurisdictional error. I form this view in circumstances where:

    it is plain that the Minister understood that the applicant received only one conviction and one sentence (reasons for decision paras [17]-[18]); and

    at [45] the Minister noted that the applicant had a single instance of offending.

49    While the Minister’s references to more than one conviction or offence were incorrect, the Minister’s reasons must be read as a whole: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 per Kirby J at [24], [26]; Australian Securities and Investments Commission v King [2020] HCA 4 per Kiefel CJ, Gageler and Keane JJ at [58]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 per Gordon and Edelman JJ at [79].

50    I further find that to the extent that the Minister made an error in respect of the number of convictions and/or offences of the applicant, that error was not material in circumstances where no additional adverse weight appears to have been ascribed by the Minister to any additional convictions.

51    In my view particulars 1.9-1.10 are not substantiated.

CONCLUSION

52    For reasons I have set out earlier in this judgment, the application is allowed. The applicant is entitled to the relief sought, including costs to be assessed if not otherwise agreed.

Associate:

Dated:    27 August 2025