Federal Court of Australia

PYYV v Minister for Immigration and Multicultural Affairs [2025] FCA 1113

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

introduction

1    The applicant was born in India in July 1990. He first arrived in Australia in July 2014 as the holder of a student visa that was granted to him pursuant to the Migration Act 1958 (Cth) (the “Act”). In February 2022, he was granted a Class SN Subclass 190 Skilled Nominated visa (hereafter, the “Visa”).

2    On 20 February 2023, the applicant was sentenced to a term of imprisonment by the Supreme Court of Tasmania, after being convicted of six charges of offences that the Act defines as “sexually based offences involving a child”. On 10 August 2023—and on account of that offending and of his resultant incarceration and failure to pass the statutory “character test”—the applicant’s Visa was mandatorily cancelled pursuant to s 501(3A) of the Act (the “Cancellation”).

3    Consistently with s 501CA of the Act, the applicant was then invited to and did make representations as to why the Cancellation ought to be revoked. He accepted that he did not pass the “character test” but submitted all the same that there was “another reason” why the Cancellation ought to be revoked. Those representations came before a delegate of the first respondent (the “Minister”) who, on 5 April 2024, decided not to revoke the Cancellation (I shall refer to that decision hereafter as the “Delegate’s Decision”).

4    On 15 April 2024, the applicant applied to the second respondent (the “Tribunal”) seeking to have the Delegate’s Decision reviewed on its merits (the “Review Application”). On 1 July 2024, the Tribunal affirmed the Delegate’s Decision and published reasons for doing so (the “Tribunal’s Decision”).

5    By an amended originating application dated 27 September 2024 (the “Judicial Review Application”), the applicant moves in this court for prerogative relief to have the Tribunal’s Decision set aside and to compel the Tribunal to reconsider the Review Application according to law. He submits that the Tribunal’s Decision is a product of jurisdictional error.

6    For the reasons that follow, that central contention is incorrect. The Judicial Review Application should and will be dismissed with costs.

background FACTS

7    The applicant came to Australia in 2014 to obtain a university education. After graduating with a Bachelor of Business Administration (Hospitality Management) attained at the University of Tasmania, he worked in a restaurant in Launceston and, later, as a driver for a taxi service and then a trucking company. It was in the latter role that he was employed at the time of the offending referred to below (albeit that he was serving a period of suspension or stand down at the time—nothing turns on that).

8    In April 2021, the applicant met a 12-year-old girl via an online dating application. The girl—who had run away from home and whose family had reported her missing to police—had, for the purposes of creating a profile on the application, adopted a false name and lied about her age. After “matching” via the application, she and the applicant arranged to meet one evening at a local shopping mall. The applicant picked the girl up and drove her to his home, whereupon they engaged in various intimate acts.

9    The following day, the applicant returned the girl to the same shopping mall, where she was eventually located. Police officers took her to a local hospital and, later, interviewed her about the events of the previous evening. She disclosed to them what had occurred.

10    The applicant was then interviewed and did not deny the events that were put to him. He maintained that he understood that the girl was, in fact, an adult; and expressed his shock when informed of her actual age.

11    In due course, the applicant was charged with, relevantly, one count of indecent assault and five counts of penetrative sexual abuse of a child. He pleaded guilty to those charges and was sentenced to 10 months’ imprisonment with a non-parole period of six months. The applicant’s sentence was served on a full-time basis in a custodial institution in Hobart.

the statutory framework

12    At the times of present relevance, s 501CA of the Act provided as follows, namely:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person:

(i)    a written notice that sets out the original decision; and

…

(b)    invite the person to make representations to the Minister… about revocation of the original decision.

…

(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.

…

13    It is not now in contest that the Visa was cancelled pursuant to s 501(3A) of the Act, nor that the applicant does not (and did not) pass the character test for the purposes of s 501CA(4)(b)(i) of the Act. At issue before the Tribunal (and, prior to then, before the Minister’s delegate) was whether there was “another reason” why the Cancellation ought to be revoked.

14    I pause here to note that, since the commencement of this proceeding, the Tribunal has been succeeded by the Administrative Review Tribunal. By operation of item 25 of sch 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), it remains open to this court to hear applications for review of decisions of the Tribunal under the jurisdiction conferred upon it by s 476A of the Act. That much is not in dispute.

15    Section 499 of the Act empowers the Minister to issue directions related to the exercise of, amongst others, the power conferred by s 501CA(4). That section provides (and provided) as follows:

499 Minister may give directions

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

…

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

16    The Minister relevantly exercised that power on 7 June 2024 by publishing—or otherwise issuing (including to the Tribunal)—a written direction known as Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the “Direction”).

17    Paragraph 8 of the Direction establishes five primary considerations that, where relevant, a decision maker must take into account when making a decision under s 501CA(4) of the Act. One such consideration is the “protection of the Australian community from criminal or other serious conduct”. The Direction relevantly states as follows:

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.

…

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

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

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

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

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

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

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

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

the tribunal’s decision

18    At the hearing before the Tribunal, it was (as it remains now) common ground between the parties that the applicant did not pass the “character test” for the purposes of s 501CA(4)(b)(i) of the Act. At issue before the Tribunal was whether there was “another reason” to revoke the Cancellation pursuant to s 501CA(4)(b)(ii).

19    After recognising the question that it was obliged to determine, the Tribunal set about identifying relevant aspects of the Direction. Later, it traversed a summary of the oral evidence that was led at the hearing, including detailed evidence about the applicant’s offending.

20    Expert evidence was given by Mr Jeffrey Cummins, a forensic psychologist who had examined the applicant, including (and, perhaps, specifically) about the prospects that he might reoffend. Employing a variety of risk assessment tools including what is apparently known as the ‘Static-99R’ tool, Mr Cummins made an assessment about the applicant’s prospects of recidivism.

21    Applying the Static-99R tool, Mr Cummins scored the applicant a “seven”, which assessed him as possessing a “well above average” risk of reoffending. Mr Cummins noted that, while the applicant’s examining psychologist, Dr Grant Blake, had previously scored the applicant a “four”, he had done so while employing the tool prior to the applicant’s conviction and sentencing (a reality that apparently bore upon the outcome that that tool would generate).

22    Despite scoring the applicant’s risk as “well above average” under that rubric, Mr Cummins’s expert opinion was that the applicant’s risk of reoffending was “low” or “negligible”. Counsel for the Minister cross-examined Mr Cummins on his assessment, and the Tribunal summarised his evidence as follows (Tribunal’s Decision, [94]-[95]; emphases original):

94.    Mr Cummins agreed that if someone is convicted of a sexual offence, by that very fact it cannot be said that they are at ‘no’ risk of reoffending. In his report he wrote…:

I assessed the current risk for committing a further sexual offence as Low, which effectively equates to a negligible risk. In my opinion there is no need for [PYYV] to engage in any further offence[-]specific treatment.

95.    The following exchange then occurred:

Tribunal:    The word ‘negligible’ is editorial?

Mr Cummins:    The lowest level of risk is ‘Low.’ I say in a practical sense it is negligible.

Tribunal:    But they are different things, though.

Mr Cummins:    I would not expect this man to re-offend. He said he never intended to have sex with an underage person.

Counsel:    Do you agree Dr Blake assessed some risk?

Mr Cummins:    Yes. But he assessed prior to sentencing, incarceration and a specific course.

Counsel:    You agree there is some risk?

Mr Cummins:    Some risk, but I describe it as negligible.

Counsel:    Are you saying for anyone rated Low, the risk is negligible?

Mr Cummins:    No. But in this instance. This was a specific situation – the victim was actively involved in deceiving him.

Counsel:    It is outside the clinical realm to add ‘negligible.’

Mr Cummins:    The technical level is ‘Low.’ I add to that the circumstance in which he re-offended.

Counsel:    What do you mean by ‘negligible’? You don’t mean no risk?

Mr Cummins:    You could say that within ‘Low’ there can be high-low or low-low; it is low-low.

Counsel:    The bottom end of the ‘Low’ range?

Mr Cummins:    Correct. He thought the sexual contact was with a person 18 years old or older.

23    In weighing up the applicant’s risk of reoffending, the Tribunal found as follows (Tribunal’s Decision, [134-]-[140]):

134.    PYYV successfully completed a ‘New Directions’ programme, described as a criminogenic programme for sex offenders, while he was in prison. A letter from the Tasmanian Department of Justice described him as ‘motivated and positive’ in his engagement with this course. The Respondent suggested in written submissions that he had not completed the course. The Tribunal rejects that, because before me was a certificate of attainment dated 10 August 2023, that he had completed the course. PYYV also undertook a TAFE computer course in June 2023 and was embarked on a barista course but had not completed it before he was released on parole. There is no evidence that he was other than a well-behaved prisoner. He has also been well-behaved in immigration detention, and the IHMS reports record him as responsive and positive in his engagement in the ‘Smart’ recovery course.

135.    The Tribunal accepts that Mr Cummins’ report of the Static-99R tool is the more accurate one, given it post-dated PYYV’s conviction and sentencing. The Tribunal however finds it difficult to accept Mr Cummins [sic] conclusions, in the light of that higher assessment of risk, that can sustain his opinion is that the Applicant is of ‘Low’ risk which in his case means a ‘negligible’ risk. There seems to be a logical inconsistency that his opinion is of a ‘lower’ risk than Dr Blake’s, but the objective Static-99R measure returned a higher risk result.

136.    While there have been some protective factors such as passage of time, and the Applicant now being in an apparently loving relationship with [PYYV’s romantic partner], and supported in that by her family, and he has undertaken rehabilitative courses, the plain facts are that PYYV had penetrative sexual intercourse with a 12-year-old child in a circumstance where he was reckless as to ascertaining her age and did not make proper inquiries.

137.    The Tribunal heard extensive evidence of the subterfuge that [the girl] was engaged in by her fake profile on Grindr. The Tribunal accepts that she was holding herself out to be 18 years old, as well as using a fake name. The Tribunal also notes, although it is not strictly relevant to these proceedings, that two other persons have been convicted in separate matters relating to sexual offences with the same victim at around the same time.

138.    However, the Tribunal must focus here on the risk of PYYV reoffending, not on the fact that he believed the victim was 18. The Tribunal notes, without being censorious, that the Applicant freely admits that he used the Grindr dating application for making contact for sexual purposes with strangers, both men and women. The Tribunal also notes that he told police he was not thinking about the age of the victim when he committed the offences, but was only focussed, essentially, on the acts themselves. While the Tribunal finds it very difficult to accept that PYYV did not apprehend that [the girl] was not 18, when confronted with her, naked, in a lit bedroom, I make no finding about that. I accept, as I must, the Court’s conclusions that his belief about her age was neither honest nor reasonable. I also accept the Chief Justice’s conclusion that PYYV had no reason to believe or suspect, in these circumstances, that [the girl] was as young as 12. I accept his evidence that he was ‘shocked’ when he found out. But he was reckless as to the age of the person – a stranger – with whom he was about to have sexual relations.

139.    Having considered the evidence and clinical conclusions in Dr Blake’s and Mr Cummins’ reports, the oral evidence and the submissions of both parties, I accept that the current risk of PYYV reoffending in the same manner as his index offending is ‘Low.’ I do not accept at all that it is a ‘negligible’ risk; that conclusion cannot be reached even with the passage of time and the protective factors, because of the recklessness of the Applicant’s conduct in April 2021. Mr Cummins ‘editorial’ addition to qualify the ‘Low’ risk finding as ‘negligible’ places a gloss on his opinion of risk which is decoupled from his own administration of the assessment tool. That editorial addition is not therefore supportable.

140.    The Tribunal therefore finds that the weight of this primary consideration slightly bifurcates. The seriousness of the offending is at the highest level, because it involves a number of sexual offences involving a child, and a child under the age of 13 which aggravates the offending in law. The risk of the Applicant reoffending is found to be low. But, because of the nature of the offending, any risk (other than a fanciful risk) is unacceptable. The overall weight that the Tribunal assigns to this primary consideration is that it weighs very heavily against revoking the mandatory cancellation of the Applicant’s visa.

the application

24    The Judicial Review Application seeks to impugn the Tribunal’s Decision on two bases. It is convenient to replicate them (and the particulars that are said to support them) in their entirety (save for the part that was expressly abandoned at the hearing):

1.    The second respondent failed to comply with s 499(2A) of the Migration Act 1958 (Cth) (‘the Act’).

Particulars

(a)    The second respondent misapprehended its task under paragraph 8.1 of direction no 110 made by the Minister pursuant to s 499 of the Act (‘Direction 110’);

(b)    the second respondent erred by weighing the nature of the harm if the applicant were to re-offend against the likelihood and/or risk of the applicant committing offences of a different nature, contrary to the task required by Direction 110;

…

(d)    the second respondent erred by failing to consider information and evidence before it in relation to the assessment of the likelihood of the applicant engaging in further criminal or other serious conduct, as required under Direction 110;

(e)    the second respondent failed to consider and/or give weight to independent and authoritative sources as required under Direction 110; and/or

(f)    the second respondent failed to consider the likelihood of the applicant being in a situation where he may re-offend or engage in further criminal or other serious conduct.

2.    The second respondent’s process of reasoning was unreasonable, irrational or illogical, and/or the second respondent failed to give proper, genuine and realistic considerations to the evidence and arguments before it.

Particulars

(a)    The second respondent erred by engaging in a reasoning process which was unreasonable, by weighing the nature of the harm if the applicant were to re-offend against the likelihood and/or risk of the applicant committing offences of a different nature;

(b)    the second respondent erred, by reasoning unreasonably, irrationally and/or illogically, and/or failing to give proper, genuine and realistic considerations to the evidence and arguments before it, in finding that there was a ‘logical inconsistency’ in Mr Cummins[’s] assessment of PYYV’s risk;

(c)    the second respondent erred, by reasoning unreasonably, irrationally and/or illogically, and/or failing to give proper, genuine and realistic considerations to the evidence and arguments before it, by finding that Mr Cummins’ clinical assessment of the applicant re-offending was ‘a ‘gloss’, as an ‘editorial’ and as ‘not … supportable’ despite the evidence before it;

(d)    [the second respondent] erred, by reasoning unreasonably, irrationally and/or illogically, and/or failing to give proper, genuine and realistic considerations to the evidence and arguments before it, in assessing and rejecting Mr Cummins’[s] expert opinion that there was a negligible risk of the applicant re-offending;

(e)    [the second respondent] erred, by reasoning unreasonably, irrationally and/or illogically, and/or failing to give proper, genuine and realistic considerations to the evidence and arguments before it, in its assessment of the likelihood of the applicant re-offending in a similar manner; and/or

(f)    [by] virtue of the matters in (b), (c) and/or (d) above, the second respondent unreasonably, irrationally and/or illogically concluded that the applicant was a ‘low’, or any other form of non-negligible, risk of re-offending and/or likelihood of engaging in further criminal or other serious conduct.

25    Particulars (d), (e) and (f) to ground one integrate closely with ground two and are more conveniently addressed in that context (which is consistent with that ground having been given greater attention in the parties’ oral submissions). I will otherwise address in turn each of the two grounds of review.

ground 1: FAILURE TO COMPLY WITH MINISTERIAL DIRECTION

26    It is common ground between the parties that, in determining whether to revoke the Cancellation, the Tribunal was obliged to comply with the Direction; and that any failure in that regard that was material to its ultimate decision would sound as jurisdictional error, which this court might correct upon application for prerogative relief.

27    The applicant charges the Tribunal with having misapprehended the task prescribed to it by para 8.1 of the Direction. That paragraph required the Tribunal to give consideration to the nature and seriousness of the applicant’s conduct, and the risk to the Australian community should he reoffend. Doing so required that the Tribunal have regard to the applicant’s prospects of recidivism.

28    There are multiple dimensions to the charge that the applicant levels against the Tribunal. First, it is said that the Tribunal improperly assessed the harm that might attend the applicant’s engagement in offending conduct different from that for which he was imprisoned. Second, it is said that the Tribunal wrongly failed to consider evidence relevant to the prospect of recidivism.

29    I confess some difficulty in understanding how the first dimension was put. As I followed it, the contention that was advanced was that the Tribunal had considered the nature of the harm that the applicant might visit were he to engage in criminality of the kind for which he was convicted (namely, sexual offending involving a child); but did not consider the nature of the harm that the applicant might visit were he to engage in other forms of criminal conduct.

30    That, it is said, stood in contradistinction to the Tribunal’s assessment of the likelihood that the applicant might engage in future criminal conduct, which did venture into assessing not only whether he might engage in further sexual offending against children; but also other forms of harmful conduct. The applicant submits, by way of example, that the Tribunal did not separately assess the nature of harm that might arise were he to indulge in the sharing of photographic imagery of sexual partners, which was the subject of some evidence before the Tribunal.

31    Respectfully, there is nothing in that contention. The Tribunal was not obliged separately to consider the nature of the harm that might attend the applicant’s engagement in the infinite universe of criminal misadventure. Rather—and as the Minister correctly observes—its task was to address the Review Application as it arose on the evidence that was presented.

32    True it is that that evidence disclosed conduct other than that for which the applicant was convicted; and that was capable of description as “criminal” or “serious” (or both). In particular, it emerged that the applicant had taken a video of his victim when she was asleep, which he had shared without her knowledge or consent. He also took a screenshot of an explicit photo of the victim, sent to him by her prior to their encounter. In the forensic psychological risk assessments, he described the sharing of such material with friends as “normal”.

33    The nature of the harm that attends conduct of that nature is self-evident. Although it made no express reference to the prospect that the applicant might engage in equivalent conduct in the future, nor specifically to the impact that conduct of that kind might visit, it is plain that the Tribunal was alive to the applicant’s having indulged in it and to the prospect that he might do so again. The conduct featured in the evidence of Dr Blake and Mr Cummins; and the Tribunal recorded what each had said about it—including Dr Blake’s view that, were the applicant to be charged with another sexual offence, it would “…most likely be a complaint from a consenting sex partner who discovered that [he had surreptitiously] photographed or videoed their interaction without their consent, and/or shared sexual imagery of the victim without their consent”: Tribunal’s Decision, [132].

34    The suggestion that the Tribunal was obliged by the Direction separately to record in its reasons particular consideration about the self-evident nature of the harm that would flow from other conduct in which the applicant might, in future, engage is unrealistic and I reject it. The Tribunal’s reasoning exposes the required level of consciousness of the nature of the applicant’s prior conduct, a proper appreciation of the consequences that it might visit if repeated and a proper assessment of the likelihood that it might occur. Those observations made, there was no want of compliance with the Direction as alleged.

35    For those reasons—and the further reasons outlined below in respect of the particulars best assessed in the context of ground two—ground one is not made good.

ground 2: LEGAL UNREASONABLENESS

36    By his second ground of challenge, the applicant contends that the Tribunal reasoned in a way that was irrational or unreasonable to a point bespeaking jurisdictional error; and, in particular, in drawing its conclusions about the likelihood and impact of his reoffending.

37    The boundaries of legal unreasonableness are not here in dispute. In MQGT v Minister for Immigration, Citizenship & Multicultural Affairs [2023] FCAFC 141, [42] (Wheelahan, Jackson and Feutrill JJ), the full court observed:

There is an implied condition on the discharge of the Tribunal’s duty to review [a decision under s 501CA(4) of the Act] that the review must be undertaken reasonably. The condition of reasonableness is concerned with both the outcome and the process of reasoning: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [132] (Crennan and Bell JJ) [(“SZMDS”)]. There are a number of dimensions to the obligation of the Tribunal to discharge its duty to review reasonably. One dimension is that the Tribunal’s decision must not be the product of a process of reasoning that is illogical or irrational such as to amount to an abuse of the statutory function to review. A decision of this character has been described as being “one at which no rational or logical decision-maker could arrive on the same evidence”: SZMDS at [130]. Another description is whether the decision is “irrational, illogical [or] not based on findings or inferences supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38] (Gummow and Hayne JJ). However, “[n]ot every lapse of logic will give rise to jurisdictional error”, and “a court should be slow, although not unwilling, to interfere in an appropriate case”: SZMDS at [130]. To amount to jurisdictional error, a claimed error in the process of reasoning, such as the absence of evidence or other material, or lack of logical grounds, must be such as to support a finding by a court 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”, and such that the decision can be characterised as “unjust, arbitrary or capricious”: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 (Djokovic) at [34]-[35] (Allsop CJ, Besanko and O’Callaghan JJ); Masi-Haini v Minister for Home Affairs [2023] FCAFC 126 (Masi-Haini) at [49]-[51] (Markovic, Meagher and Kennett JJ).

38    As with his first ground of challenge, the applicant’s second challenge proceeds upon multiple dimensions. The first concerns the Tribunal’s conclusion that “…because of the nature of the offending, any risk (other than a fanciful risk) is unacceptable” (Tribunal’s Decision, [140]; above, [23]). The applicant complains that:

…much of the evidence of [his] risk related to his risk of engaging in any form of sexual offending and not solely sexual offending against children. The [Tribunal] itself found that [he] did not have an attraction to adolescents, and Dr Blake did not see offending in relation to underage children as the likely form of offending.

It is submitted that the approach taken by the Tribunal led to it failing to appreciate that [the applicant] could have a negligible or fanciful risk of re-offending in the same manner, while still posing a higher risk of some other form of offending…

39    I do not accept that the Tribunal failed in the way that the applicant asserts. On the face of its reasons, it was alive to the reality that the expert evidence that had been led about the applicant’s likelihood of reoffending was not limited to offending in ways that involved children. It made, for example, express reference to the evidence of Dr Blake (to the effect that, were the applicant to reoffend, it was more likely to be by creating or sharing imagery of a sexual partner than by the abusing of a child—see above, [33]). The suggestion that the Tribunal failed to distinguish one type of offending from another and, in so doing, blurred the respective likelihoods that the applicant might indulge in each is unrealistic and I reject it.

40    The Tribunal’s conclusion was that “…the current risk of [the applicant] reoffending in the same manner as his index offending” was “low”. It rejected the suggestion that that risk was “negligible”. That was not (and is not now said to have been) inconsistent with the evidence of Dr Blake. It may be accepted that the evidence was capable of supporting a finding that, as the applicant puts it, “…[he] could have a negligible or fanciful risk of re-offending in the same manner, while still posing a higher risk of some other form of offending”. But so to acknowledge is not to suggest that that was the only conclusion that it was capable of supporting.

41    There is nothing in the Tribunal’s process of reasoning that bespeaks unreasonableness, illogicality or irrationality at the level of jurisdictional error. To the extent that it was suggested, there is nothing about it that reflects any want of compliance with the Direction either. The applicant’s complaints in those regards are unfounded.

42    The applicant next takes aim at the Tribunal’s suggestion that Mr Cummins’s evidence about the risk of the applicant’s reoffending was attended by a “logical inconsistency”. He suggested that “it was not open for the [Tribunal] to find that there was a ‘logical inconsistency’, and [that that] finding demonstrates that in assessing the expert evidence of risk the Tribunal engaged in reasoning which was irrational or illogical – and/or failed to give proper, genuine and realistic considerations to the evidence and arguments before it”. The applicant expected, for example, that the Tribunal would reflect that the differences between the assessors’ Static-99R scores were attributable to the applicant having been convicted and sentenced in the intervening period.

43    Again with respect, none of those contentions can be accepted. The Tribunal acknowledged the reason given by Mr Cummins for the difference between the scores (at [86]) and, as it was entitled to, preferred the explanation aligned with the higher score. There was not advanced before the Tribunal any reason why that score ought to be disregarded, nor before me any manifest unreasonableness by the Tribunal in preferring it. The “logical inconsistency” to which the Tribunal adverted inhered in the reality that, despite assessing the applicant as scoring more highly on the Static-99R test than what Dr Blake had concluded, Mr Cummins nonetheless sought to attribute to him a lower risk of reoffending. Whatever might be said about the Tribunal’s description of those circumstances as involving “logical inconsistency”, it cannot be impugned as unreasonable, illogical or irrational to a point sustaining jurisdictional error.

44    Before the court, the applicant was at pains to explain the limitations of the Static-99R tool, the broader nature of the assessment exercise and why it might be that a higher score could logically coalesce with a lower prospect of recidivism. There may or may not be something in that. At its core, the applicant’s complaint is that the Tribunal was wrong to reason in the way that it did; and that it ought to have preferred Mr Cummins’s assessment of the applicant’s risk of reoffending. That contention might have much to commend it were the court’s task to assess the correctness of the Tribunal’s conclusion on its merits. But where, as here, the search is for the existence of jurisdictional error, it is largely irrelevant. The most that might be said of the Tribunal’s conclusion is that the evidence was capable of supporting a different one. It is simply not the case that the conclusion to which the Tribunal was led was outside the wide bounds of what the material before it permitted, such that it might be impugned as unreasonable, illogical or irrational to the requisite degree.

45    Relatedly, the applicant contends that it was unreasonable for the Tribunal to discount the evidence of Mr Cummins as an “editorial” and “not…supportable”, or as involving a “gloss” on what was otherwise concluded. It is suggested that those observations betray “…a serious misunderstanding or lack of consideration or engagement with the information and evidence” that was before the Tribunal.

46    That suggestion cannot be accepted.

47    Again, it may be that Mr Cummins’s evidence was open to be characterised in alternative ways. His evidence was in conflict with that of Dr Blake and it is apparent that the Tribunal was minded to prefer the latter. Reasons for that preference were given. No criticism can be sheeted home to the Tribunal on that basis alone.

48    Instead, the applicant seeks to attack the adjectives that the Tribunal employed in explaining why it was minded to prefer the evidence of Dr Blake over that of Mr Cummins. Mr Cummins’s view that the risk of the applicant reoffending was “negligible” was one that he offered by way of augmentation of his observation that "[t]he lowest level of risk is ‘Low’”. Whether “editorial” or “gloss” are the best ways to describe that augmentation can be left to others to contemplate. The only observation that I need now to record is that neither of them is apt to substantiate the “serious misunderstanding or lack of consideration” to which the applicant adverts. They are merely convenient descriptors that explain the weight that the Tribunal was minded to attach (or not attach) to parts of the evidence that was before it. That, as has been said, is classically a matter for the Tribunal.

49    The applicant’s contention, distilled to its essence, is that the Tribunal was wrong to discount Mr Cummins’s evidence—or, otherwise, to prefer that of Dr Blake—about the likelihood that he might reoffend in the future. Again, if the debate were limited to the merits of that conclusion, the submission might or might not have much to commend it. It does not, though, bespeak irrationality, illogicality or unreasonableness to a point reflective of jurisdictional error.

50    The applicant then seeks to impugn as legally unreasonable the Tribunal’s “overall reasoning process in relation to the ‘likelihood of the [applicant] engaging in further criminal or other serious conduct’”. It is said that the Tribunal “…[failed] to engage with the nuances of the material and evidence before it”; including that the applicant’s offending was “situational” and “isolated”, and that the applicant did not (and does not) have any sexual interest in adolescents. Most specifically, the applicant complains that the Tribunal “…did not consider the likelihood of [his] finding himself in a similar position in the future”.

51    By his written submissions before the court, the applicant contends that:

…the Tribunal merely reasoned that ‘because of the recklessness of [his] conduct in April 2021’ (emphasis added) there cannot be a negligible risk of reoffending despite the rehabilitation and other protective factors now present, and the ability of these factors to minimise the likelihood of the applicant offending in the future.

52    That contention was refined in oral submissions as follows:

That conclusion [that the applicant’s risk was not negligible] cannot be reached even with the passage of time and protective factors because of the recklessness of the applicant’s conduct in April 2021. So, effectively, [the Tribunal] has reached a conclusion that, no matter what, this offending could never – someone who committed this offence could never be assessed as having negligible risk, despite the evidence [and] despite the requirement of direction 110 to…consider rehabilitative factors.

The direction doesn’t mandate that certain offending is never able to be rehabilitated from and, in my submission, that’s not reasonably open on the evidence for a conclusion that someone who has committed this offending – noting, your Honour, that this was a reckless offence; [the Tribunal] has identified and made findings, effectively, in favour of the applicant in relation to nature of the offending, as opposed to a situation where this was intentional. But [it] has, effectively, said, “I can’t accept negligible because of this offending back in April 2021”.

53    The applicant draws support for his contention from the finding of the full court in CKL21 v Minister for Home Affairs (2022) 293 FCR 634, 656-7 [74], [77] (Moshinsky, O’Bryan and Cheeseman JJ):

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

…

…the relevant question is whether there was a probative basis for a finding that the appellant posed a risk of reoffending … (being the basis for the conclusion concerning “unacceptable risk”).

54    In oral submissions, some reliance was placed upon the full court’s observation that “…[a] conclusion that a risk ‘cannot be ruled out’ does not, of itself, logically establish the existence of a risk”. Counsel for the applicant conceded that, as a logical proposition, that statement is obviously wrong. Risk is binary: if it can’t be said not to exist, then it must logically follow that it does. The full court must be understood to have intended—and, in my view, it is apparent from the surrounding text that it did intend—that a distinction should be drawn between risk per se and risk that was “so low that it must properly be disregarded”.

55    Here, of course, the Tribunal directed itself to that very question. It explained why it was not minded to accept that the level of risk attending the applicant’s prospects of reoffending was “negligible”, as Mr Cummins opined. It explained, by reference to the expert evidence that it did accept, why it considered that a “low” prospect of reoffending was such as to warrant the rejection of the applicant’s request for revocation. Reasoning in that way was orthodox.

56    Likewise, it cannot be said that the Tribunal lacked any rational or intelligible basis for describing the subject risk as “low” but not “negligible”. Again, it may be that the evidence was such as might have sustained a conclusion that the risk was “negligible”; but so to observe is merely to recognise the “decisional freedom” within which the Tribunal had jurisdiction to discharge its task: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths and Wigney JJ).

57    The applicant complains that the Tribunal did not direct itself to the likelihood that he might, in the future, find himself in a situation in which the opportunity to reoffend might present. It did not, he submitted, direct itself to the likelihood that he might have occasion in the future to use an application like “Grindr” (which he used to connect with his victim) again, nor to the possibility that he might happen upon another fraudulent profile created by a child.

58    At the hearing before me, counsel for the applicant skilfully deflected the court’s invitation to identify how consideration of that nature might theoretically manifest itself in the Tribunal’s reasons. It was not suggested that any evidence was led about, for example, the likelihood that the applicant would re-use the Grindr application (or anything like it) in the future; nor was there any statistical evidence regarding the prevalence of children and young people on applications of that kind. It is difficult to know how the Tribunal might have addressed what the applicant now complains went unaddressed.

59    The Tribunal’s task in the present matter—established both by the Direction and by the nature of the decision that the Act required it to make—was to assess the level of risk that the applicant poses to the community. Doing so involved a quantitative assessment and a qualitative assessment: how likely is it that the applicant might indulge in criminal or other serious conduct and what would the consequences be were he to do so? Those were the issues to which the Tribunal directed itself. Necessarily, its consideration of those matters involved consideration of the possibility that the applicant might engage in the future in conduct similar to that in which he had previously engaged.

60    In embarking upon that analysis, it was necessary that the Tribunal should understand the circumstances in which the applicant’s conduct transpired. It is apparent that it did (and there is no suggestion to the contrary). In order that it might then fairly have concluded (that is to say, to have reached a conclusion within the bounds of its jurisdiction) that the applicant presented with a level of risk sufficient to incline against the revocation that he sought, it was necessary that there exist some evidential foundation supportive of that conclusion. There was. It was to be found in the evidence of Dr Blake, which the Tribunal accepted; and indeed, in the aspects of Mr Cummins’s evidence to which the Tribunal was minded to give weight. Whether or not it ought to have weighed the evidence in that way and whether or not there might have been some basis upon which to prefer an alternative narrative is not for this court to say.

61    It follows that I do not accept that the Tribunal’s conclusion about the level of risk that attached to the applicant can be impugned as irrational, illogical or unreasonable to a point reflective of jurisdictional error. Similarly (and relatedly), there was nothing in the evidence or submissions that were placed before the Tribunal that can fairly be said to have gone unconsidered; nor is there anything in the Tribunal’s reasoning about the applicant’s risk to the community that bespeaks non-compliance with the Direction.

62    Ground two is not made good in any of the forms in which it was advanced.

disposition

63    The Tribunal’s Decision was not a product of jurisdictional error as the applicant alleges. The Judicial Review Application should and will, therefore, be dismissed. The applicant should pay the Minister’s costs. There will be orders accordingly.

Associate:

Dated:    11 September 2025