Federal Court of Australia

Clark v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1039

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Administrative Review Tribunal made on 5 December 2024 be set aside, and in lieu of thereof order that:

(a)    A writ of certiorari be issued to the Second Respondent quashing the Tribunal’s decision dated 5 December 2024; and

(b)    A writ of mandamus be directed to the Second Respondent, differently constituted, requiring it to redetermine the Applicant’s review application according to law.

3.    The First Respondent to pay the Applicant’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    This is an application for review of a decision of the Administrative Review Tribunal, made on 5 December 2024, to affirm the decision of the delegate of the First Respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, on 18 September 2024 not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa under s 501CA(4) of the Migration Act 1958 (Cth).

Background

2    The Applicant is 62 years old. He was born in the United States of America (US). He arrived in Australia in around 1970 at the age of seven or eight with his mother and siblings. There is evidence to suggest that he suffered from an acquired brain injury at the age of 17 from a motor vehicle accident.

3    On 17 June 2022, the Applicant was convicted of breach of a probation order, sexual assaults (x 2), stealing, serious assault person over 60, possession of a knife in a public place or school, common assault (x 4), wilful damage, unauthorised dealing with shop goods, and commit public nuisance (x 2). He was sentenced to terms of 12 months’, six months’ and 14 days’ imprisonment, which were suspended for two years, with the Applicant having already served 148 days in custody.

4    On 28 November 2022, the Applicant was convicted of common assault (x 2), sexual assaults, unlawful stalking and breaching orders made on 17 June 2022 (x 3). He was sentenced to various concurrent terms of imprisonment of three, six and nine months’ duration. The balance of the suspended sentence passed on 17 June 2022 was invoked.

5    On 16 December 2022, the Applicant filed an appeal against the sentences imposed on 28 November 2022 in the District Court of Queensland.

6    On 2 February 2023, the Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he failed to pass the character test under s 501(6)(a) as he held a “substantial criminal record” as defined under s 501(7)(c) of the Act.

7    On 18 February 2023, the Applicant sought revocation of the cancellation decision under s 501CA(4)(a) of the Act.

8    On 11 August 2023, the appeal was upheld and Judge Kent KC made the following orders:

Appeal heard at Toowoomba on 19/06/2023. Appeal allowed. Discretion to re-sentence adjourned before His Honour in Brisbane.

Pre-sentence custody of 339 days between 6/09/2022 and 10/08/2023 taken into account but not declared.

For the offences of common assault x2, sexual assault and stalking [the 28 November 2022 sentences] - probation order for 3 years.

For breaching the suspended sentences imposed at Toowoomba Magistrates Court on 17/06/2022 - find the breach proved and take no action.

For breaching the probation order imposed at Toowoomba Magistrates Court on 17/06/2022 - find the breach proved and make no further order. Conviction recorded.

9    The fact of the appeal and re-sentence do not appear on the Australian Criminal Intelligence Commission Check Report (Criminal Check Report) dated 20 February 2024 which was before the Tribunal.

10    On 18 September 2024, the Minister’s delegate determined not to revoke the cancellation.

11    On 25 September 2024, the Applicant lodged an application for review of the delegate’s decision at the Tribunal. The Tribunal heard the application on 3 December 2024. The Applicant was not legally represented during the hearing and was assisted by his brother during the proceedings.

12    On 5 December 2024, the Tribunal affirmed the delegate’s decision.

The Tribunal’s decision

13     The Tribunal considered two issues:

(a)    does the Applicant pass the character test, as defined by section 501 and, if not;

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

14    The Tribunal member reproduced the matters set out in the Criminal Check Report as a table at [18] of its reasons. The most recent entry in the table listed the convictions on 28 November 2022. Based on the Criminal Check Report, the Tribunal found at [19] of its reasons that the Applicant was sentenced to a term of 12 months in June 2022, and therefore had a substantial criminal record and so did not pass the character test.

15    In determining whether there was another reason why the original decision should be revoked, the Tribunal took into account the considerations referred to in Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (7 June 2024) (Direction 110). Direction 110 is binding on the Tribunal pursuant to s 499(2A) of the Act. The “Primary considerations” are set out under paragraph 8 and “Other considerations” under paragraph 9.

16    The primary considerations under paragraph 8 are:

(1)    protection of the Australian community from criminal or other serious conduct;

(2)    whether the conduct engaged in constituted family violence;

(3)    the strength, nature and duration of ties to Australia;

(4)    the best interests of minor children in Australia;

(5)    expectations of the Australian community.

17    Paragraph 8.1 of Direction 110 provides:

8.1.    Protection of the Australian community

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

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

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

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

18    The Tribunal had regard to the police facts sheets and the sentencing remarks in considering the nature and seriousness of the Applicant’s conduct to date. It summarised briefly the facts of each offence underlying the convictions on 17 June 2022 and 28 November 2022, concluding at [45] that:

…the Applicant had engaged in multiple offending. Significantly, several of his offences included sexual crimes against women and the Direction provides that these are considered to be of serious nature. The Applicant also engaged in multiple drink-driving offences which had the potential of causing harm to others. The Tribunal has formed the view that the offending was serious.

19    At [110] of its decision the Tribunal found that the sexual offending was repeated and escalating. It noted “that the most recent offending resulted in the most significant custodial sentence”, presumably referring to the convictions recorded on 28 November 2022.

20    The Tribunal also considered the likelihood of the Applicant engaging in further criminal or other serious conduct. The Tribunal considered that the Applicant showed little insight into his offending based on answers he gave to the Tribunal during the proceedings.

21    The Tribunal referred to a pre-sentence report by Dr Karen Brown, Consultant Forensic Psychiatrist, dated 18 July 2023, a report by Dr Victoria Barclay-Timmis, clinical psychologist, dated 16 June 2022, and a statement by Dr Ewen Cameron, general practitioner, dated 14 October 2024. The Tribunal found at [58] that “there is no probative evidence to establish the link between the Applicant’s behaviour and the claimed damage and, indeed, the brain damage has not been professionally diagnosed nor determined through any testing”.

22    The Tribunal found that the Applicant appeared reluctant overall to engage in treatment that involved pharmacological intervention (as he “said he does not want to be dependent on drugs”). The Tribunal concluded at [59] that

if it is the case that the Applicant displays sexual disinhibition and engages in anti-social or criminal behaviour due to the acquired brain injury and because he is unable to understand the consequences of his actions, in the absence of any treatment (and none has been arranged to date), it would seem that there remains a strong possibility that the Applicant will continue to engage in the same behaviour in the future.

23    The Tribunal found it significant that there was no evidence that meaningful arrangements had been made for professional support to be provided to the Applicant. The Tribunal considered the Applicant’s alcohol use disorder and found that there was “at least a moderate risk” of re-offending, likely including sexual offending against women, and came to the view that “the protection of the Australian community weighs very heavily against the revocation”.

24    The Tribunal had regard to the strength, nature and duration of the Applicant’s ties in Australia. The Tribunal found that the Applicant would have formed strong social and employment links in Australia given the amount of time he was in this country, in addition to his family links, which would weigh heavily in favour of revocation. The Tribunal considered that the Applicant has no relationship with his grandchildren.

25    The Tribunal also considered that the expectations of the Australian community would weigh heavily against revocation, given his many occasions of sexual misconduct against women.

26    With respect to other considerations, the Tribunal had regard to paragraph 9.2 of the Direction, which provides:

9.2.    Extent of impediments if removed

(1)    Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)    the non-citizen’s age and health;

b)    whether there are substantial language or cultural barriers; and

c)    any social, medical and/or economic support available to them in that country.

27    While the Tribunal accepted that the Applicant had some health issues, it determined at [103] that

there is no evidence before the Tribunal to indicate that the Applicant will not be able to receive adequate and appropriate medical support in the US or that his access to treatment will be denied or withheld for any reason. In particular, the Tribunal notes the evidence of Ms Clark that the financial cost of medical treatment in the US is very high, however there is no probative documentary evidence before the Tribunal as to what may be reasonably available. There is also nothing to suggest that the social and economic support that might generally be available to the US nationals would not be available to the Applicant.

28    However, the Tribunal accepted that the Applicant “may experience some hardship” if removed due to the length of his residence in Australia, and found that this factor weighed in favour of revocation.

29    Overall, the Tribunal determined that the protection and expectations of the Australian community outweighed any other considerations and decided not to revoke the cancellation of the Applicant’s visa.

The present application

30    The Applicant’s grounds of review in this Court are as follows:

(a)    The Tribunal’s decision was affected by jurisdictional error because it failed to consider, or give active intellectual engagement to, the Applicant’s correct criminal history.

(b)    The Tribunal’s decision was affected by jurisdictional error on the basis of legal unreasonableness or illogical or irrational reasoning with respect to its findings in relation to the Applicant’s brain injury.

(c)    The Tribunal made a finding for which there was no evidence, namely that the Applicant would have access to the social and economic support that would generally be available to US nationals.

(d)    The Tribunal’s decision was affected by jurisdictional error because the Applicant was denied procedural fairness by the Tribunal failing to warn him that he was not obliged to answer questions which might tend to incriminate him.

Legislative provisions

31    The grounds for a refusal or cancellation of a visa on character grounds are provided under s 501 of the Act.

32    Section 501(3A) provides:

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

33    Section 501CA(4) is the provision under which, after being satisfied that the Applicant had a “substantial criminal record”, the Tribunal determined that there was no other reason why the original decision should be revoked. That section provides:

(4)     The Minister may revoke the original decision if:

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

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

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

34    Under s 501(6)(a), a person does not pass the character test if the person “has a substantial criminal record” as defined by s 501(7)(c). Under s 501(7)(c), a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”.

Ground 1

Submissions

35    The Applicant submitted that the Tribunal mischaracterised the Applicant’s criminal history and therefore erred in its application of paragraph 8.1 of Direction 110, under which the decision-maker must give consideration to the protection of the Australian community. The Applicant accepted that he would likely have failed the character test due to the 12-month suspended sentence imposed on 17 June 2022.

36    The Tribunal found at [109]-[110]:

… that the Applicant has a lengthy criminal record and that, due to his most recent conviction, he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.

The Tribunal has formed the view that the Applicant’s offending has been serious as many of the offences involved sexual offending against women. It is significant that such offending was repeated and of escalating significance, noting that the most recent offending resulted in the most significant custodial sentence.

37    First, the Applicant submitted that the Tribunal, on review of the decision not to revoke the mandatory cancellation under s 501(3A) of the Act, erred by failing to consider the outcome of the appeal of the sentence imposed on 28 November 2022, which caused the Tribunal to misapprehend the Applicant’s proper criminal history. The fact or result of the appeal is not mentioned in the Respondent’s Statement of Facts, Issues and Contentions. As mentioned at [8] above, the appeal was upheld on 11 August 2023 and the Applicant was re-sentenced to three years’ probation. The Applicant contended that without this error, the conclusion at [110] “that the most recent offending resulted in the most significant custodial sentence” could not have been made. Further, the Applicant contended that the Tribunal gave undue weight to the sentencing remarks of Magistrate Shephard while ignoring Judge Kent KC’s findings on appeal which must implicitly be necessarily “significantly different” to that of the primary judge.

38    Second, the Applicant submitted that the Tribunal overlooked the fact that the 17 June 2022 sentence of imprisonment was suspended, and that on appeal a conviction was recorded but no action taken. The Applicant submitted that given the suspended sentence is less serious than the term of imprisonment imposed on 17 June 2022, the Tribunal’s failure to take the suspension into account in making its findings amounted to jurisdictional error.

39    The Applicant referred to Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340, which held that the Minister committed a jurisdictional error by failing to take into account an accurate statement of the appellant’s criminal record with respect to a decision to refuse or cancel a visa under s 501A of the Act. The relevant errors were the term and nature of the sentences, whether they were served concurrently or cumulatively, and the nature of the drug at the heart of the offences (at [26], [60]). Sackville J stated at [55]:

It must be remembered that s 501A(2) confers a power on the Minister not merely to cancel a visa, but to set aside a decision of the Administrative Appeals Tribunal not to cancel the visa. It is unlikely that Parliament contemplated that the Minister could exercise a power having such drastic consequences for a permanent Australian resident on the basis of incorrect information as to the offences committed by the visa holder and the sentences imposed for those offences. It follows that if the Minister fails to take into account a visa holder’s correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction.

40    Black CJ agreed at [8], stating:

I would add that the conclusion that there may be jurisdictional error if the Minister fails to take into account an accurate statement of a person’s criminal record is perhaps reinforced by the circumstance that for the purposes of the character test defined in s 501(6) and (7) of the Act, and applicable to s 501A, the concept of “substantial criminal record” is defined, primarily, by reference to the sentence or sentences imposed upon a person. The situation provided for in para (e) of the definition in s 501(7) relates to acquittal on the grounds of unsoundness of mind or insanity but, otherwise, sentences are at the heart of the definition.

41    It should be noted that the decision in Lu was made well before the High Court’s decision in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 ; [2024] HCA 12, and so the discussions of “whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker’s failure to observe the requirements of the statute” (at [64]) must be read in the context of the more recent decision in LPDT on materiality (as to which, more below). Additionally, Lu did not involve the same section of the Act, nor did Direction 110 apply.

42    In Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364; [2013] FCA 542, Flick J similarly found at [37] that a “factually inaccurate statement as to the time that Mr Ruatita had served in custody … had the consequence that the Minister had failed to take into account Mr Ruatita’s correct criminal record” and therefore acted in excess of jurisdiction in exercising his power under s 501A(2). The Minister’s decision was set aside, despite the fact that Mr Ruatita had served a significant time in custody, because of the importance of “factually accurate information” being available to the decision-maker (at [61]).

43    In answer on this point, the First Respondent submitted that even though the Tribunal did not expressly refer to the outcome of the appeal on 11 August 2023 nor the suspension of the sentences in its reasons, this does not support the conclusion that the Tribunal overlooked or was unaware of these sentences. The First Respondent contended that it was open to the Tribunal to determine the seriousness of the Applicant’s offending by considering the nature of the offending as described by the material before it (that is, the police facts sheets and sentencing remarks), as opposed to the sentences themselves, noting that paragraph 8.1.1(1)(a)(ii) of Direction 110 in which the Tribunal is directed that violent/sexual crimes against women or children are viewed “very seriously … regardless of the sentence imposed”.

Determination

44    The decision by the Tribunal was one which “incorporates a requirement of materiality” (see LPDT at [9] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ)) because of the requirement for satisfaction of the matters in s 501CA(4)(b)(ii) of the Act. Accordingly, the first question to be determined is whether an error has occurred; and the second, was that error material?

45    While I recognise that administrative decisions “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287), I am not satisfied that, on a fair reading of the Tribunal’s reasons, the Tribunal was indeed aware of the Applicant’s proper criminal history. The table reproduced at [18] of the Tribunal’s reasons, and the Tribunal’s finding at [110], would indicate otherwise. The Tribunal said at [110]:

It is significant that such offending was repeated and of escalating significance, noting that the most recent offending resulted in the most significant custodial sentence.

46    Nowhere does the Tribunal refer to the outcome of the appeal, nor to the suspension of the sentences, in the body of its reasons. It is notable that the delegate had in fact remarked upon the findings on appeal in the revocation of the cancellation decision on 18 September 2024. The delegate said (at [28]):

Regardless of this successful appeal against the sentences imposed, I am of the view the offending was very serious.

47    Any sentencing remarks in the District Court were not part of the material before the Tribunal. Accordingly the Tribunal could not engage with Judge Kent’s remarks on sentence. Whilst I do consider it open to the Tribunal to have taken into account the sentencing remarks of Magistrate Shephard as part of the overall picture of the Applicant’s criminality, the fact that it did not refer to the District Court outcome or sentencing remarks at all provides further support for the contention that it did not consider the Applicant’s proper criminal record. In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Perram, Murphy and Lee JJ) at [76] the Court said:

The written reasons of the Minister may, and generally will, be taken to be a statement of those matters considered and taken into account. If something is not mentioned it may be inferred that is not been considered or taken into account: Acts Interpretation Act 1901 (Cth) s 25D; s 501G of the Act; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [5], [37] and [69]; NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16] per Allsop CJ and Katzmann J.

48    Whilst I agree with the First Respondent that no inferences can be drawn as to the contents of the sentencing remarks, it is tolerably clear that the Tribunal did not engage with the fact, or the outcome, of the District Court appeal. Instead, at [110], the Tribunal noted that “the most recent offending resulted in the most significant custodial sentence”.

49    As the Tribunal itself observed in its reasons at [26], “The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.” The fact of the custodial term imposed in June 2022 was taken into account, although it is not clear whether the Tribunal had any regard to the suspended nature of the sentence. It would appear that it is more likely that it did not, as it was not mentioned in the table at [18], which omitted the reference from the Criminal Check Report which noted that the sentence was suspended after the serving of the concurrent sentence.

50    The imposition of a suspended sentence is still a serious matter. The Full Court has held that a sentence of suspended imprisonment is still considered a “very serious form of punishment in the hierarchy of sentencing opinions”: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33 at [4] (Rares J, with whom Moore J agreed); Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [73] (Allsop CJ, Griffiths and Wigney JJ); see also Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [77] (Kirby J). In Brown, Rares J observed at [7]:

The structure of s 501 [of the Act] recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of s 501(6)(a) and (7). The definitions of “imprisonment” and “sentence” in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus of s 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.

51    The First Respondent pointed out that Direction 110 (paragraph 8.1.1(1)(a)) requires the Tribunal to consider the nature and seriousness of the conduct “regardless of the sentence imposed” and that in having regard to the underlying seriousness of the offences, rather than the sentences imposed, it was adhering to the Direction. It was certainly open to the Tribunal to view the Applicant’s criminal history “very seriously”. But it would not be possible to have proper regard to the Applicant’s criminal history without taking all of it – including a successful appeal on sentence – into account. As the Applicant submitted:

Direction 110 required the Tribunal to engage closely with quite specific considerations including the “frequency” of offending, the extent of violent crimes committed, any “trend” of increasing seriousness, the “cumulative effect” of “repeat” offending and the sentences imposed. It was not possible for the Tribunal to rationally assess those matters without having an accurate understanding of the applicant’s criminal history.

52    I agree that the Tribunal made an error in not engaging with the evidence of the Applicant’s full criminal history.

53    I now need to consider whether that error was material. There is no handy reckoner of the kinds of jurisdictional errors which, by their nature, are necessarily material (although the plurality in LPDT at [6] cites apprehended or actual bias, or unreasonableness in the result, as grounds which fall into that category).

54    The question is whether there is a realistic possibility that the decision could have been different if the error had not occurred: LPDT at [7]. The First Respondent said that there was “no realistic possibility of any other outcome” and relied on the provisions of Direction 110, in that the relevant factors are not the sentences imposed, but the underlying seriousness of the offences.

55    It lies on the Applicant to satisfy the Court, on the balance of probabilities, that the error in fact occurred (which as noted above I am satisfied on that ground) and that the error was material (LPDT at [12]). The threshold of materiality is not demanding or onerous (LPDT at [14]). Unless I am affirmatively persuaded that the outcome would inevitably have been the same had the error not been made, then the materiality threshold has been met.

56    There is a deal of strength in the First Respondent’s argument. It is entirely possible that the Tribunal may, even with the benefit of the correct criminal record in front of it, come to the same decision as to cancellation. However, there is a realistic possibility that the Tribunal may, having regard to the correct criminal record of the Applicant, have arrived at a different outcome. This is so because of the express reliance on the seriousness of the sentences in addition to the underlying criminal conduct before the Tribunal, and the Tribunal at [26] noting that it had regard to the custodial sentences as being a “reflection of the objective seriousness” of the conduct. Without a custodial sentence, the Tribunal may have regarded the criminal conduct of the Applicant in a different light. It seems to me that the error in this case – determining the cancellation of a visa without taking into account the correct criminal record – is such that the outcome is consistent with the error having affected the decision (see LPDT at [15]). It is not for this Court to enter into a process of merits review and to determine what the alternative outcome may have been had the Tribunal taken into account the correct criminal record of the Applicant (see LPDT at [36]). It is enough, as the Applicant has done, to demonstrate that the discretion under s 501CA(4)(b)(ii) could have been exercised differently. The Applicant has met the threshold of materiality in this case.

57    Accordingly, I find that Ground 1 has been made out. Given that I have come to the view that I have in relation to this ground, there is no need for any determination in relation to the next three grounds. However, for the reasons expressed briefly below, I would not have upheld those grounds.

Ground 2

58    The Applicant submitted that the Tribunal’s findings that there was “no probative evidence to establish the link between the Applicant’s behaviour” and the brain injury and that the brain damage has not been “professionally diagnosed nor determined through any testing” at [58] of its reasons were unreasonable, irrational or illogical, given the opinions in the reports of Dr Brown and Dr Cameron which were before the Tribunal.

59    The relevant portions of Dr Brown’s report are reproduced below:

Mr Clark has a diagnosis of acquired brain injury (ABI). The combination of disinhibition, impulsivity, poor judgement, inability to read and respond to social cues, Witzelsucht, Moria and hypersexuality, is consistent with frontal lobe impairment, secondary to a head injury. In addition given his poor recall at interview, Mr Clark almost certainly has some impairments with memory and he may have deficits in other cognitive domains. His use of alcohol may well have caused or exacerbated some of his symptoms. A full neuropsychological assessment is required to properly diagnose the extent and severity of the cognitive impairment. I also note there has been a possible worsening in Mr Clark’s presentation (as indicated by the increase in frequency of offending), the cause of which is unclear. He should undergo a medical work up and an MRI brain scan in order to assess for other causes for a (possible) progressive cognitive decline.

…

At the age of 17 years Mr Clark was involved in a motor vehicle accident and he sustained a serious head injury, which almost certainly led to a number of cognitive impairments including frontal lobe deficits and memory difficulties. He has since claimed the DSP and worked mostly as a casual labourer during his life.

…

In my view Mr Clark’s offending behaviour is primarily driven by his social isolation, desire for intimacy, antisocial personality disorder and his cognitive (frontal) lobe impairments, which may be progressive in nature. His alcohol use disorder places him even more at risk of disinhibited and aggressive behaviours, but I note that some of the sexual offences did not involve intoxication. As per the Static-99R and the RSVP Mr Clark is at high risk of committing another sexual offence, most likely of a similar nature (sexual assault of a woman known to him or stranger female staff in shops). He is also at high risk of committing further public nuisance and violent offences, particularly in the context of alcohol intoxication. It is of concern that his offending is increasing in frequency and that community supervision is ineffective.

My diagnoses are provisional. Mr Clark requires further medical and psychological assessment and additional corroborative information is required before these diagnoses (particularly the diagnosis of acquired brain injury) can be confirmed. Assuming he remains in custody for a period of time, he should be referred to the Prison Health Service and from there the necessary referrals to specialist ABI services can be made. In particular the extent of his ABI should be determined (via neuropsychology and functional OT assessment) as well as his capacity to make decisions (health, legal etc).

60    Dr Cameron’s statement relevantly provided:

It seems very likely with the information available that [the Applicant] has suffered from a significant traumatic brain injury that has badly affected his personality and social functioning.

…

The loss of inhibitions after alcohol would be consistent with the probable diagnosis of traumatic brain injury with frontal lobe involvement.

61    The Applicant noted that the report of Dr Barclay-Timmis was the only report before Magistrate Shephard and Magistrate Stark at the time of sentencing. Dr Barclay-Timmis did not make an express connection between the Applicant’s brain injury and his offending conduct, although she did note that the Applicant’s risk factors for reoffending included his “reduced capacity for impulse control (as a result of his brain injury)”. The Applicant contended that the Tribunal appeared to prefer the remarks of the Magistrates during sentencing over the opinions of experts.

62    The First Respondent submitted that on the evidence before it, the Tribunal was open to make the findings at [58]. The First Respondent submitted that the Tribunal’s reasons accurately reflected Dr Brown’s opinion that the diagnoses are “provisional” and that further testing is required.

63    As Allsop CJ, Besanko and O’Callaghan JJ stated in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [33], a finding of legal unreasonableness on the basis of illogicality or irrationality “is not easily made”. Their Honours continued at [34]-[35]:

The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR 611 at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 at [52] and [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

64    In my view the Tribunal’s findings at [58], coming as they do after a review of the three medical reports, were not unreasonable in the Djokovic sense. Direction 110 at 8.1.2 requires the Tribunal to assess the Applicant’s risk of reoffending, and the medical reports do not rule out that risk. The process of the Tribunal in considering the medical reports were not unjust, arbitrary, or capricious.

Ground 3

65    The Applicant contended that the Tribunal erred by making a finding at [103] that “[t]here is also nothing to suggest that the social and economic support that might generally be available to the US nationals would not be available to the Applicant” as there is no evidence to support that finding. It was submitted that this finding was a critical step in the Tribunal’s final conclusion and therefore constituted jurisdictional error: SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19].

66    The Applicant pointed to the Tribunal’s finding at [105] that “[t]here is no evidence before the Tribunal as to what support may be available to the Applicant in the US in his particular circumstances, having regard to his financial and other situation”.

67    The Applicant submitted that there was considerable lay evidence before the Tribunal that he would be unable to access any support in the US. The evidence before the Tribunal on this issue comprised mainly of written and oral statements by the Applicant’s witnesses. The Tribunal referred to the evidence of the Applicant’s sister and her oral evidence in respect of the cost of health insurance in the US (at [103]). Other witness statements to similar effect were before the Tribunal.

68    In Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162, in which the Applicant was also a US citizen, Burley J found at [32] that the Minister’s finding that “the United States has a government welfare system that offers a level of support broadly comparable to that available in Australia” was a critical step leading to the Minister’s decision and “there was no evidence for the Minister to find that the two systems were comparable”.

69    The First Respondent submitted that the Applicant mischaracterised the Tribunal’s findings at [103]. It was submitted that the Tribunal did not make any positive findings about the social and economic supports available to US nationals generally, but rather made findings in relation to the lack of evidence supporting the Applicant’s claims.

70    It seems to me that in saying in [105] that there was “no evidence” as to what support may be available in the US, the Tribunal was referring back to the first sentence in that paragraph, which refers to his claims being “unsupported by probative evidence” (emphasis added). The Tribunal referred to the statements of his family and cited their view that he would have difficulties surviving and making his way in what to him is effectively a foreign country. It was open to the Tribunal to find that the evidence as to the US health care system was not probative, after a review of the evidence upon which the Applicant relied. In any event, the Tribunal in fact found that the difficulties he would have in being moved from Australia weighed in favour of the revocation.

Ground 4

71    The Applicant submitted that he was denied procedural fairness in circumstances where the Tribunal failed to inform him of the privilege against self-incrimination, in particular when he was asked about incidents which occurred at immigration detention involving the Applicant’s conduct towards female staff members.

72    The Applicant relied on s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which provides:

13 Stalking or intimidation with intent to cause fear of physical or mental harm

(1)     A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.

Maximum penalty—Imprisonment for 5 years or 50 penalty units, or both.

(2)     For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.

(3)    For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.

(4)    For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.

(5)    A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

73    The Applicant pointed to what he submitted was the only occasion during the hearing that could be characterised as a warning, which occurred during the Minister’s cross-examination:

MS WILFORD: … Whilst I shouldn’t be asking any questions that would incriminate you in any way, just for completeness, we are going to be talking about your criminal history. So if at any point you have the right to not answer a question, particularly if you think the answer you give might incriminate yourself in any way.

MR C. CLARK: Yeah.

MS WILFORD: So you can just elect to not respond if you need to.

MR C. CLARK: Okay.

74    In failing to afford the Applicant procedural fairness, the Applicant submitted that this caused him to answer questions which allowed the Tribunal to make findings under paragraphs 8.1.1, 8.1.2 and 8.5 of Direction 110 in relation to the seriousness of the Applicant’s offending and the risk to the Australian community.

75    In particular, the Applicant was concerned by the Minister’s line of questioning at the Tribunal hearing relating to an incident between Mr Clark and a counsellor:

MS WILFORD: I might just then talk about the ones in - most recent ones. So there was, perhaps less recent, but in August 2022, the tribunal benefited G9, in the sentencing remarks, the court was referring to the fact that you were referred to a drug and alcohol counselling program. And as part of that, it looks like from those sentencing remarks, there was counselling involved presumably to discuss, you know, about alcohol use and rehabilitation and all of that. There’s a reference in there that you had to stop, or you were cut off from that counselling because of your conduct with the female counselor at the time. Do you have any memory of that incident or of that conversation or series of incidents?

MR C. CLARK: Not really, I can’t - - -

MS WILFORD: Okay. So on that occasion, the counselor, well, the counselor reported that she was not comfortable being your counselor anymore because you had made a joke about talking about her underwear which she said she wasn’t comfortable with.

MR C. CLARK: No, that was, again, that was in (indistinct)

MS WILFORD: Okay. And do you recall the conversation or what conversation you had, if any, with the counselling service around that incident either (indistinct) you had with the counselor or why you'd been cut off from the service?

MR C. CLARK: (indistinct) it was just out, you know (indistinct) stupidity. I shouldn’t have said it, you know, like (indistinct) as we were talking, I just figured, what about a joke?

76    The Applicant relied on the fact that the Tribunal explicitly referred to this incident at [41] of its reasons (her Honour being a reference to Magistrate Shephard):

Her Honour refers to the Applicant’s conduct during probation. It is noted that the Applicant was referred to a female counsellor with Drug ARM who had to stop counselling as the Applicant told her he wanted to talk about the colour of her underpants. It is noted that the Applicant had little insight into the effect of his behaviour, stating it was a joke. It is noted that Community Corrections took the view that the Applicant was not suitable for further probation. Her Honour notes that the Applicant is someone who needs professional counselling and the support of a psychologist or a psychiatrist.

77    The Tribunal also made further findings at [43]:

The Tribunal has been provided with the incident report relating to the period of the Applicant’s detention. It refers to an incident in November 2023 when the Applicant is alleged to have committed verbal sexual assault against Programmes and Activities officer. It is reported that the Applicant asked the officer “can you be my girlfriend?” It is noted that the officer reported she did not feel threatened or intimidated during the conversation.

78    The Applicant submitted that the Tribunal appeared to conflate his criminal convictions and the incidents in detention.

79    The First Respondent submitted that the Tribunal did not place any weight on the Applicant’s answers regarding the incidents at detention, and that it is unclear whether the Tribunal did make any adverse findings based on his answers at the hearing given it couched these incidents as allegations. The First Respondent noted that the Applicant did not say anything that was not already on the record before the Tribunal. For example, the incident with the counsellor was referred to in the delegate’s reasons and the remarks on sentence.

80    In reply the Applicant submitted that had adequate warning been given and the Applicant not answered the questions, the weight given to the existing material could have been different, and the Tribunal would necessarily have had to be more “circumspect” in treating that evidence.

81    In Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, the Applicant submitted the Tribunal had denied him procedural fairness by failing to inform him of his privilege against self-incrimination in relation to questions asked on two incoming passenger cards. In that case, McDonald J helpfully set out the principles of the privilege against self-incrimination at [58]-[61] of his Honour’s reasons, with which I agree:

The privilege against self-incrimination is a “basic and substantive common law right”: X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at 136-7 [104] (Hayne and Bell JJ; Kiefel J agreeing); Reid v Howard (1995) 184 CLR 1 at 11 (Toohey, Gaudron, McHugh and Gummow JJ). It is also reflected in the terms of s 62(4) of the AAT Act. The privilege applies not only to evidence that amounts to a complete and clear confession to a particular offence but to evidence that “may tend to incriminate the person asked” or may tend to prove that a person has committed an offence: see, eg, Hamilton v Oades (1989) 166 CLR 486 at 494 (Mason CJ); Evidence Act 1995 (Cth), s 128.

In Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 (Promsopa), Allsop CJ accepted that a tribunal may deny an unrepresented party procedural fairness if its questioning strays into matters about which the unrepresented party could invoke the privilege against self-incrimination without warning the person (at [37]). Chief Justice Allsop also rejected submissions advanced by the Minister in Promsopa that the failure of the Tribunal to advise the applicant of her right to invoke the privilege against self-incrimination occasioned her no practical injustice and did not amount to jurisdictional error (at [42]). Those submissions were rejected on the basis that, in that case, the Tribunal’s questioning of the applicant, and the answers which that questioning elicited from her, “allowed the Tribunal to conclude” that she had committed what the Tribunal found to be a serious breach of the law.

Chief Justice Allsop’s reasoning in Promsopa was accepted and applied by Meagher J in Lucas v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1653 at [50]-[51].

In Verrill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802 (Verrill), Thawley J made the following relevant observations (at [35]-[38]), with which I agree:

Jurisdictional error (a breach of procedural fairness) may be established where a Tribunal, or a cross-examiner, asks a question in circumstances which give rise to a right to refuse to answer on the basis of the privilege against self-incrimination and a sufficient explanation of the existence of the right to refuse to answer is not given.

A careful analysis of the facts in any given case might be required to assess whether the privilege actually arises. Questioning about events which have been the subject of charges and convictions might not give rise to the possibility of self-incrimination, such that the right to refuse to answer the question does not arise – see: Sorby v Commonwealth of Australia [1983] HCA 10; 152 CLR 280 at 290 (Gibbs CJ), citing In re Genese; Ex parte Gilbert (1886) 3 Morr 223.

It is also relevant to inquire whether the evidence is something more than what was already known on the available material. A breach of procedural fairness does not give rise to jurisdictional error unless the breach is material: Nathanson v Minister for Home Affairs [2022] HCA 26; 276 CLR 80 at [1]

In cases such as the present, which necessarily involve an examination of past criminal conduct and the likelihood of such conduct recurring, it would generally be desirable to inform an unrepresented litigant of the existence of the privilege.

82    McDonald J concluded in that case that the Tribunal’s failure to explain the privilege to Mr Bainbridge could not realistically have altered its conclusion, given the objective evidence already before it. That appears to be the situation – if there was a failure to give a proper direction – in relation to the Applicant. I do not regard the Tribunal’s process to have denied the Applicant procedural fairness. While he was not represented, he had assistance from his brother, and even if – which I do not necessarily accept – the cross-examination went beyond the history of the Applicant which had already been dealt with, it related to incidents which had occurred in immigration detention which do not appear to be significant criminal matters. The direction given by the cross-examiner which is set out above was fair and “inform[ed] an unrepresented litigant of the existence of the privilege”.

83    I am of the view that no error in relation to procedural fairness has been demonstrated.

Determination

84    The Applicant has succeeded on Ground 1 and the orders of the Tribunal should be set aside.

Associate:

Dated:    29 August 2025