FEDERAL COURT OF AUSTRALIA

Raumakita v Minister for Immigration and Multicultural Affairs [2025] FCA 1574

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue quashing the decision of the Administrative Appeals Tribunal dated 4 June 2024: Moses Raumakita v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024/1585).

2.    A writ of mandamus be directed to the Administrative Review Tribunal requiring it to redetermine the applicant’s review application according to law.

3.    The first respondent pay the applicant’s costs of the proceeding to be agreed or assessed.

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

REASONS FOR JUDGMENT

STELLIOS J

1    This proceeding concerns an application under s 476A(1)(b) of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Act.

2    In reaching its decision, the Tribunal relied upon an inaccurate statement of the applicant’s criminal record. The factual errors were significant to the exercise by the Tribunal of its jurisdiction and material to the outcome. I am satisfied that the applicant has established jurisdictional error and is entitled to the relief he seeks.

BACKGROUND

3    The applicant is a citizen of Fiji. He arrived in Australia in 1988 at the age of 4. On 23 June 1999, he was granted a Class BF transitional (permanent) visa.

4    On 22 May 2023, the applicant’s visa was cancelled by the Minister under s 501(3A) of the Act (cancellation). Section 501 relevantly 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)

…

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more.

5    At the time of the cancellation, the applicant was serving a sentence of 22 months’ imprisonment at Parklea Correctional Centre, with a non-parole period of 15 months.

6    The applicant made representations to the Minister requesting a revocation of the cancellation decision pursuant to s 501CA(4), which 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.

7    On 8 March 2024, a delegate of the Minister decided not to revoke the cancellation under s 501CA(4) (delegate’s decision). The applicant applied unsuccessfully to the Tribunal for review of the delegate’s decision, with the Tribunal affirming the delegate’s decision on 4 June 2024 (Tribunal’s decision). The applicant has applied to this Court for review of the Tribunal’s decision.

THE TRIBUNAL’S DECISION

8    In its statement of reasons, the Tribunal identified “the sole issue” for determination as “whether there is another reason why the visa cancellation should be revoked, under subsection 501CA(4)(b)(ii) of the Act”. That was because the applicant had been sentenced to a term of imprisonment of 12 months or more and, accordingly, did not pass the character test for the purposes of s 501CA(4)(b)(i).

9    In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal was required under s 499(2A) to comply with Direction No. 99 made pursuant to s 499, entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). Within the framework of decision-making set out in Direction 99, decision-makers under s 501CA “must take into account the primary and other considerations relevant to the individual case”: at [5.2(6)]. The primary considerations, set out at [8] of Direction 99, include:

(1)    the 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.

10    The Tribunal addressed each of these primary considerations; however, it is only necessary to consider in detail the Tribunal’s evaluation of (1), (2) and (5).

Protection of the Australian community from criminal or other serious conduct

11    In evaluating this primary consideration, the Tribunal considered the application of [8.1(2)] of Direction 99 which provides that:

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.

12    Under the heading “Nature and seriousness of the applicant’s conduct”, the Tribunal said (at [20]–[21] (emphasis added)):

The applicant's offending conduct is viewed very seriously. Paragraph 8.1.1(1)(a)(ii) and (iii) of Direction 99, states that crimes of a violent nature against women and acts of family violence are viewed very seriously by the Australian Government and the Australian community, regardless of the sentence imposed (and regardless of whether there is a conviction, in the case of family violence).

The applicant's criminal history demonstrates an alarming pattern of disruptive and violent behaviour. Over thirty of his convictions relate to acts of family violence against his ex-partner. This is despite the terms of apprehended violence orders (ADVOs) and other deterrent measures, including a Community Correction Order (CCO), Conditional Release Order (CRO) and Intensive Correction Order (ICO).

13    A similar statement about the applicant’s criminal history had been made by the Tribunal when setting out the background to the application (at [2] (emphasis added)):

The applicant has an extensive criminal history spanning a period between 23 November 2004 and 28 July 2023. Over thirty of the applicant’s criminal offences relate to domestic violence, eight relate to driving while disqualified, three offences are of robbery in company, and the remainder include stealing or shoplifting and possession of prohibited drugs.

14    In further evaluating the nature and seriousness of the applicant’s conduct, the Tribunal outlined in more detail the offences that the applicant had committed:

(1)    “[T]he applicant was convicted of common assault (DV)- T2 and contravene prohibition/restriction in AVO (Domestic)(16 counts).” The common assault conviction was said by the Tribunal to have arisen from a verbal altercation between the applicant and his ex-partner “which turned physical, involving the applicant pinning his ex-partner against a mattress and holding his hand on her neck”. The Tribunal explained that, in relation to ADVO contravention, “the applicant was convicted of making 13 phone calls and sending 3 handwritten letters to his ex-partner while incarcerated at Parklea Correctional Facility, despite an ADVO being in place against him for the protection of his ex-partner”. The applicant was sentenced to an aggregate term of 22 months. This is the term of imprisonment that led to the cancellation of the applicant’s visa: at [22].

(2)    “On 5 August 2022, the applicant was convicted of common assault (DV)-T2 and contravene prohibition/restriction in AVO (Domestic) (3 counts) and destroy or damage property (DV)”. The Tribunal said that the applicant had been sentenced “to multiple terms of imprisonment between 13 June 2022 and 12 August 2022, followed by a 12-month CCO with supervision”. The Tribunal explained that these convictions arose from a disagreement between the applicant and his ex-partner “while consuming alcohol together at their family home”. Following the ex-partner’s request that the applicant leave, he “grabb[ed] a wire screen door of the home and pull[ed] it off its hinges”: at [23].

(3)    “On 18 May 2022, the applicant was convicted of common assault (DV)-T2 and contravene prohibition/restriction in AVO (Domestic), for which he was sentenced … to a 12-month CRO.” The Tribunal explained that the circumstances leading to this conviction were that the applicant’s ex-partner had “advised the applicant that he was not invited to attend the Aquatopia [W]ater Park with her and their five children” (the water park incident). As recorded in the Police fact sheets, the applicant “became quite angry and started to verbally abuse [his ex-partner] and swear at her. The [applicant] asked again to be let into the house and when [his ex-partner] denied him again the [applicant] pushed [his ex-partner] with one hand to her left shoulder and then tried to push past her, while she was still holding [their 1-year-old child]”: at [24].

(4)    “On 4 March 2020, the applicant was convicted of stalk/intimidate intend fear physical etc harm (domestic)-T2 and destroy or damage property (3 counts)) [sic], for which he was sentenced … to comply with an ICO with supervision for 5 months and 18 days.” The Tribunal explained the conduct that gave rise to this conviction as recorded in Police facts sheets (at [25]):

[O]n 23 August 2019, when his ex-partner returned home from a night out with her friends, she engaged in a heated argument with the applicant over family matters. She went into her bedroom and locked the door. When refused entry, the applicant “punched a hole on [sic] the door which caused the door to come off the hinges. At some point the [applicant] also damaged the home phone, which has left [his ex-partner] with no phone. On 26 August 2019, the applicant returned to the premises and demanded to be let in. The applicant’s ex-partner refused and so the applicant has then gone around to the side fence, the [applicant] kicked and pushed at the fence causing damage. The applicant has then jumped the fence and made his way to the back door, [his ex-partner] then ran to the back door and pushed the washing machine up against the door in a hope to stop the [applicant] gaining entry. The [applicant] had then kicked the door a number of times before leaving and returning to the front of the house. The [applicant] had then kicked the side passenger mirror of [his ex-partner] [sic] vehicle, causing the mirror to snap off. [His ex-partner] observed this from her bedroom window. [She] continued to ask the [applicant] to leave, the [applicant] has the[n] said ‘I'm going to kill you’ whilst using both hands in a side wide motion across his neck area. [He] then left the location.”

(5)    “On 7 January 2015, the applicant was convicted of assault occasioning actual bodily harm (DV)-T2, for which he was sentenced … to a 2-year good behaviour bond.” The Tribunal explained in the following way the conduct giving rise to this conviction as recorded in Police fact sheets. After consuming alcohol, the applicant accused his ex-partner (at [26]):

of spending too much time texting her boss in relation to work issues. … [T]he [applicant] and [his ex-partner] engaged in a scuffle where [his ex-partner] states the [applicant] has attempted to fend off [his ex-partner] by using his open hand and hitting [her] to the jaw area causing immediate pain. [His ex-partner] and [the applicant] continued to scuffle with [his ex-partner] biting the [applicant] on his right arm. When NSW Police arrived at the home, they noticed blood to the inner bottom lip of [his ex-partner] and blood stains on her blouse.

The applicant’s version of events was that “she bit me, so I elbowed her”.

(6)    The Tribunal explained that the applicant also had numerous criminal convictions relating to driving offences, despite never holding a driver’s licence in Australia (at [27]):

This includes 10 occasions of him driving during a disqualification period or without a licence, and 1 occasion of negligent driving, involving him colliding and causing damage to another vehicle while disqualified. The applicant was declared a habitual offender on 14 July 2011, and disqualified from driving between 2010 and 4 April 2028. On more than one occasion, he was caught by NSW Police driving whilst disqualified with his minor children in the car, including on 12 January 2013 and 29 August 2013.

(7)    The Tribunal further explained that the remaining criminal offending included “stealing, shoplifting and robbery in company (for which [the applicant] was sentenced to a suspended 15-month term of imprisonment on 11 May 2006)” and “a conviction for possession of a prohibited drug on 11 February 2016”: at [28].

15    Under the heading “Risk of Reoffending”, the Tribunal considered the applicant “to be a medium risk of reoffending”. His criminal history was central to the Tribunal’s evaluation (at [31] (emphasis added)):

The applicant has demonstrated a serious disregard for the Australian justice system and its laws through his offending conduct, including continual domestic violence offending, which has occurred notwithstanding deterrent measures, including an ADVO, CCO, CRO and ICO, and having been formally counselled about the potential impacts on his migration status in 2007.

16    The Tribunal also considered that the applicant had not demonstrated remorse for his offending, “particularly in regard to his domestic violence offences” (at [32] (emphasis added)):

The applicant has previously denied significant aspects of the offences in Police interviews and at contested hearings. Most recently, in his Personal Circumstances Form, despite being convicted of multiple counts of both common assault and assault occasioning actual bodily harm against his ex-partner, the applicant claimed that "I have never laid a hand on my partner". He accused her of "making up stories because of her insecure thoughts".

17    Having outlined (at [31]–[40]) matters going to the extent of the applicant’s contrition, prospects of rehabilitation and risk of recidivism, the Tribunal said (at [41] (emphasis added)):

Given the nature and seriousness of the applicant’s offending conduct, if the applicant were to reoffend, the harm inflicted on the Australian community would likely include significant physical and psychological harm to individuals. Any risk of reoffending, even a low one, is unacceptable.

18    The Tribunal concluded that “[a]s a whole, this primary consideration weighs very heavily against revocation”: at [42].

Whether the conduct engaged in constitutes family violence

19    In relation to this primary consideration, the Tribunal recognised that (at [43]–[44]):

(1)    paragraph [8.2(2)] of Direction 99 provides that it applies in circumstances including where “a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence”; and

(2)    “family violence” is defined in [4(1)] of Direction 99 to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”, and sets out examples including assault, stalking, and intentionally damaging or destroying property.

20    The Tribunal stated that (at [45] (emphasis added)):

As already detailed in these reasons, the applicant has a significant history of domestic violence related offences. The frequency and repeated nature of the applicant's acts of “family violence”, occurred against the same victim over a period of several years between 2016 and 2023, despite the terms of ADVOs and other deterrent measures, including a CCO, CRO and ICO.

21    The Tribunal concluded that “[t]his consideration weighs very heavily against revocation of the cancellation of the applicant’s visa”: at [46].

Expectations of the Australian community

22    Having set out the statement of expectations of the Australian community at [8.5] of Direction 99, the Tribunal found that (at [61] (emphasis added)):

The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa, notwithstanding the fact that the applicant has resided in Australia for the majority of his life. This is particularly so given the nature of the applicant’s offending involved repeated domestic violence offences (paragraph 8.5(2)(a) of Direction 99).

23    The Tribunal concluded that “[t]his primary consideration weighs significantly against revocation of the mandatory cancellation decision”: at [61].

Tribunal’s conclusions

24    In relation to other considerations, the Tribunal reached the following conclusions:

(1)    In relation to other primary considerations:

(a)    The strength, nature and duration of ties to Australia “weigh[ed] heavily in favour of the revocation of the cancellation decision”: at [51]; and

(b)    The best interests of minor children “weigh[ed] heavily in favour of the revocation of the cancellation decision”: at [59]; and

(2)    In relation to other considerations:

(a)    The impact on victims was “neutral”: at [67]; and

(b)    The extent of impediments if removed from Australia “weigh[ed] moderately in favour of revocation”: at [73].

25    As a result of its assessment of the above considerations, the Tribunal concluded (at [74]):

The primary considerations of the protection of the Australian community, family violence; and the expectations of the Australian community weigh significantly in favour of not revoking the visa cancellation decision. I am not persuaded that these primary considerations are outweighed by the applicant’s strength, nature, and duration of ties to Australia; the best interest of minor children; and the extent of impediments if removed.

26    Consequently, the Tribunal affirmed the delegate’s decision not to revoke the visa cancellation: at [75].

APPLICATION FOR REVIEW

27    By amended originating application, the applicant seeks writs of certiorari and mandamus to quash the Tribunal’s decision and direct it to determine the applicant’s application according to law. The Court has jurisdiction to hear the application and make its orders: Act s 476A(1)(b); Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Sch 16 item 25(2), although mandamus must now be directed to the Administrative Review Tribunal (ART).

28    There are three grounds of review, particularised further in the application:

(1)    Ground 1: In purporting to assess the applicant’s criminal history and prospects of reoffending, the Tribunal misunderstood, overlooked or ignored important evidence and/or reached findings that lacked an evident and intelligible justification and were therefore legally unreasonable.

(2)    Ground 2: In purporting to assess the best interests of the applicant’s minor children, the Tribunal constructively failed to exercise its jurisdiction by failing to give proper, genuine and realistic consideration to mandatory considerations and failing to make mandatory findings.

(3)    Ground 3: The Tribunal failed to take into account mandatory considerations under Direction 99, namely the factors in [8.2(3)] and evidence of the applicant’s rehabilitation.

29    Given my conclusions, it is only necessary to consider Ground 1.

SUBMISSIONS ON GROUND 1

Applicant’s submissions before and at the hearing

30    In written submissions, the applicant contended that “[a]n accurate assessment of the nature and seriousness of the applicant’s criminal conduct was a central aspect” of the Tribunal’s task in reviewing the delegate’s decision not to revoke the visa cancellation.

31    Relying on Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [27] and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [47] respectively, the applicant argued that the Tribunal “misunderstood, ignored or overlooked important aspects [of] the applicant’s criminal history … or otherwise reached findings concerning his offending that lacked an evident and intelligible justification”.

32    The applicant’s submission was developed in two separate and independent respects: the first related to an alleged misunderstanding of the extent of the applicant’s criminal record; the second related to an alleged misunderstanding of which offences involved “family violence”. It is only necessary to consider the first of these submissions.

33    It was submitted that “the Tribunal appears to have adopted, largely verbatim”, the Minister’s summary of the applicant’s criminal convictions set out in its statement of facts, issues and contentions (RSFIC) and, in doing so, misunderstood the consequence of the applicant being “called up” in relation to certain offences. It was submitted that both the Tribunal’s reasons and the RSFIC treated occasions where the applicant was called up and resentenced for breaches of existing conditional orders as new offending; having “the effect of erroneously inflating the extent of the applicant’s offending by double or triple counting certain offences”.

34    The applicant submitted that the Tribunal’s statement that “[o]ver thirty of [the applicant’s] convictions relate to acts of ‘family violence’” involved:

(1)    “Triple counting the applicant’s single (and most serious) DV-related offence of assault occasioning actual bodily harm”;

(2)    “Triple counting the applicant’s common assault charge … where a conditional release order (CRO) was originally imposed”; and

(3)    “Double counting the applicant’s offence of contravening an AVO”.

35    In addition to the erroneous description of the total number of offences relating to domestic violence, the applicant submitted that the errors presented to the Tribunal were reflected in its reasons in the following way:

(1)    At [22], when the Tribunal considered the imposition of the sentence for 22 months, there was no appreciation that a component of the sentence was a resentence of an earlier offence. That earlier offence relating to the water park incident was later identified as a conviction in the Tribunal’s reasons at [23] and also considered as a conviction at [24]. The applicant submitted that the treatment of these offences by the Tribunal is consistent with their identification in the RSFIC as three separate offences.

(2)    At [23], one of the counts of contravene prohibition/restriction was the resentence from the earlier offence of contravene prohibition/restriction of AVO referred to in [24] of the Tribunal’s reasons.

36    The applicant contended that “[w]hen these errors are corrected, the applicant’s offences connected to his ex-partner are reduced from 32 to 27”. He posited that this indicates the Tribunal’s assessment of the first and second primary considerations “[arises] from a misunderstanding of the evidence, and/or lacks an evident and intelligible justification for that reason alone”. This was more than simply an error of fact; it was a mistake that was so fundamental to the critical task that the Tribunal was undertaking as to the applicant’s criminal history that it goes to its jurisdiction.

Minister’s submissions before and at the hearing

37    The Minister submitted that no issue was taken by the applicant before the Tribunal as to the first respondent’s characterisation of the number of the applicant’s family violence offences. In any event, it was contended, the issue for the Tribunal was the “nature and significance” of the applicant’s offending, not the precise number of family violence offences committed.

38    Furthermore, it was contended that the applicant’s submission is incorrect if references to “double or triple” counting are intended to suggest that the Tribunal thought that those offences were committed more than once. At most, the references to “over thirty” may be slightly inaccurate and no more than a wrong finding of fact which does not constitute an error of law: citing Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [137].

39    By the time of the hearing, the Minister had accepted that there were errors in the number of offences presented to the Tribunal and that the errors likely arose as a result of inattention to the fact that some of the subsequent mentions of both categories of assaults were, in fact, resentencing. However, such errors did not constitute jurisdictional error, and the applicant had pointed to no authority to the effect that errors going to criminal history would necessarily be jurisdictional in nature.

40    It was further submitted that, on a fair reading, the Tribunal’s reasons show that there was no real misunderstanding in relation to the number of assault convictions despite an incorrect reference to over 30 offences rather than 27.

41    Thus, even if there were an error of law, it was submitted that it would not be material given that the Tribunal’s decision did not turn on the precise number of the applicant’s violence-related offences, as opposed to their frequency or nature. The Minister contended that “[i]t is not realistic to suggest that the Tribunal might have found in the applicant’s favour if it had found he had committed 27 rather than ‘over thirty’ such offences when nothing in its reasons suggested the precise number was of significance”.

Further submissions following the hearing

42    The parties did not provide any authorities that might bear directly and specifically on the character of the errors made in the applicant’s criminal record. Following the hearing in this matter, that question was addressed by Needham J in Clark v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1039. Her Honour referred to two earlier decisions of this Court: Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340 and Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364; [2013] FCA 542.

43    I requested that the parties provide short supplementary submissions on each of Lu, Ruatita and Clark. To provide context for those submissions, I will consider those authorities in chronological order. Some care will be needed with Lu and Ruatita as those cases were decided 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.

Lu, Ruatita and Clark

44    Lu concerned a decision by the Minister under s 501A of the Act to set aside a decision of the Tribunal and to cancel the appellant’s visa. The Tribunal had earlier set aside the Minister’s decision to cancel the visa under s 501(1). One of the questions for the Full Court was “whether a failure on the part of the Minister to take into account the appellant’s true criminal record (the Minister having been misinformed in this respect) constituted jurisdictional error warranting the grant of relief”: at [4] (Black CJ).

45    Before making the decision under s 501A, the Minister had been provided with an issues paper that recorded the appellant’s criminal history which included convictions in 1991 for armed robbery and for other serious offences whilst on bail. The issues paper also stated, incorrectly, that the appellant had been convicted in 1993 and 1997 of drug offences whilst in prison, and was sentenced to a term of imprisonment of nine months to be served concurrently with his prison term.

46    The correct position was that the appellant had been convicted in 1993 of three separate offences and fined on each occasion. In 1997, the appellant was convicted of the same three offences and was punished with a custodial sentence of one month for each conviction to be served concurrently and commencing on the day upon which his minimum term of imprisonment for the 1991 convictions ended. The source of the statement that the appellant had been sentenced to nine months imprisonment was unclear.

47    Unable to satisfy the character test on account of his criminal convictions, the appellant was reliant on a favourable determination by the Minister that cancellation of the Minister’s decision was not in the national interest or the Minister otherwise exercising the discretion not to cancel the visa. The issues paper set out the considerations to be taken into account including the seriousness and nature of the conduct, the likelihood that the conduct may be repeated, general deterrence, and expectations of the Australian community. The erroneous information was only referred to in the issues paper when stating that it was open to the Minister to find that the appellant had a medium to high risk of recidivism.

48    Sackville J considered that, in exercising the power under s 501A(2), “the Minister should have regard to the offences for which the person was convicted and the sentences imposed in respect of those offences” because “they indicate the seriousness of the person’s conduct and the threat he or she poses to the Australian community”: at [55]. Having noted that the exercise of power under s 501A(2) not only results in the cancellation of a visa, but also the setting aside of a decision of the Tribunal, his Honour continued (at [55]–[56]):

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.

As I have suggested, it may be that a minor error relating to the convictions or sentences imposed on the visa holder will not in substance result in the Minister failing, in a relevant sense, to take account of that person’s criminal record. But I do not think that the errors in this case were consistent with the Minister’s statutory obligation to take the appellant’s correct criminal record into account.

49    His Honour reached that conclusion on the basis that there had been two errors in the criminal history presented to the Minister: first, that the appellant had not been sentenced to a term of imprisonment as a consequence of the 1993 convictions and, secondly, the appellant had not been sentenced to a term of imprisonment of nine months. For his Honour, the length of imprisonment indicated by the Minister suggested that the appellant had committed “hard” drug offences. His Honour concluded that “the Minister committed a jurisdictional error by failing to give the requisite consideration to a matter the statute required him to take into account, that is, an accurate statement of the appellant’s criminal record”: at [61].

50    It seems reasonably clear that Sackville J’s approach included consideration of two questions: first, whether there was jurisdictional error; and secondly, whether the error was material in the sense of whether the error deprived the appellant “of the possibility of a successful outcome”: at [47]. Such an approach must now be reconfigured following the High Court’s decision in LPDT to which I will return below.

51    Black CJ agreed with Sackville J’s explanation of the principles to be applied and his reasons for judgment: at [5]. Similarly to Sackville J’s approach, for the Chief Justice, the questions to be answered were identified as:

(a)    Did the Minister’s failure to take into account the appellant’s correct criminal record amount to jurisdictional error;

(b)    If so, should the appellant be denied relief on the ground that the failure could not materially have affected the Minister’s decision?

52    Again, this statement must now be understood in light of LPDT.

53    It being common ground that the material put before the Minister was erroneous, Black CJ proceeded to address the question of materiality, noting that (at [6]):

in the making of a decision as to which the decision-maker is invested with a broad discretion, it may be difficult to conclude, as a matter of logic, that the error did not deprive a person of the possibility of a favourable decision. The circumstance that a case seems very heavily weighted against a person does not logically deny that the error may possibly — not “probably” — have affected the outcome adversely to that person’s interests.

54    Applying that approach, his Honour considered that the misstatement of facts potentially contributed to the Minister’s conclusion about the appellant’s risk of recidivism. This risk was heightened because of the description of the drug offences of “possession of implements for administration” and “self-administration” without any reference to the drug in question being cannabis. Together with the nine-month prison sentence, that might have led to the impression that the drugs involved were “‘hard’ drugs” commonly associated with recidivism. If the drug offences had been correctly stated, there was a rational possibility of the risk of recidivism being seen as low, with an improvement in the possibility of the Minister’s discretion being exercised favourably: at [28]–[31].

55    The dissenting judgment of Sundberg J agreed with the primary judge’s conclusions that a reading of the issues paper as a whole led to the conclusion “that had the sentences for the drug offences been accurately set out …, it could not have materially affected the Minister’s decision”. That was despite his Honour’s agreement that the materiality test to be applied was one of “possibility” and not “probability”: at [104].

56    Ruatita again involved a challenge to a decision of the Minister under s 501A(2) to set aside a Tribunal decision and cancel the applicant’s visa. On this occasion the error in the Minister’s issues paper was a misstatement of the period of time the applicant had served in custody. When addressing the “duration and nature of the person’s ties to Australia”, the issues paper provided to the Minister stated that the applicant had spent more than four and a half years in custody. The Minister’s reasons for decision repeated the error when considering “Ties to Australia”, although it referred to the period as “criminal custody”.

57    Flick J recorded that “[t]here [was] no exposition in either the issues paper or the statement of reasons as to how that period of time was calculated or what was intended to be conveyed by the phrases ‘in custody’ or ‘in criminal custody’”: at [22]. Nor was it apparent how that period was in fact calculated: at [23]. While there was a table of offences set out in the issues paper, the period did not readily emerge from it; indeed, his Honour observed, the table suggested a far longer period: at [22]–[23]. Having heard different submissions from the parties as to the basis of calculation of time in custody, his Honour concluded that, on either approach, the statement that the applicant had spent “more than four and a half years in custody was erroneous”: at [28].

58    In addressing the consequences of the error, Flick J rejected the Minister’s arguments that the error was neither misleading nor a matter of critical importance to the Minister’s reasoning. Having set out the reasoning of Black CJ and Sackville J from Lu, and in response to a submission from the Minister that the error appeared in part of the issues paper (ie, at [42] dealing with the applicant’s links to the Australian community) which expressed a conclusion favourable to the applicant, his Honour said (at [36]):

But to confine the significance of paragraph 42 to the issue of his “links to the Australian Community”, it is respectfully concluded, is to impermissibly attempt to parse and analyse a submission and to divorce the potential relevance of observations made in one part of the submission from the entirety. Very much at the forefront of the competing issues to be resolved by the minister was an assessment as to whether someone with the criminal history of [the applicant] should be allowed to remain in Australia. That assessment properly involved an assessment as to the nature of the offences for which [the applicant] had been convicted, including those offences being crimes of violence and crimes of violence against his partner, and the period of imprisonment imposed and served. Indeed, the text of the issues paper set forth in [30] a table as to those offences and the sentences imposed.

59    The error was not a “minor” one: it “had the potential to deprive [the applicant] of a favourable ministerial decision”: at [59]. That was the case even though the applicant served a significant amount of time in prison. For Flick J, the consequence was that the Minister had failed to take account of the applicant’s correct criminal record, thereby vitiating the decision and constituting jurisdictional error: at [30] and [37].

60    In Clark, Needham J considered an application for review of a decision by the Tribunal to affirm the decision of a delegate of the Minister not to revoke the cancellation of the applicant’s visa under s 501CA(4). The applicant had been convicted of multiple criminal offences on two separate occasions:

(1)    On 17 June 2022, he was convicted of various offences for which he was sentenced to three terms of imprisonment of 12 months, six months and 14 days. Each of the terms of imprisonment were suspended for two years.

(2)    On 28 November 2022, he was convicted of various offences and sentenced to various concurrent terms of imprisonment of three, six and nine months. The applicant filed an appeal against the sentences on 16 December 2022 and, on 11 August 2023, the appeal was upheld with the applicant being resentenced to three years’ probation.

61    The applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he failed the character test. On 18 February 2024, the applicant sought revocation of the cancellation decision under s 501CA(4)(a). On 18 September 2024, a delegate of the Minister decided not to revoke the cancellation. The applicant’s application to the Tribunal was determined on 5 December 2024 with a decision to affirm the delegate’s decision. The fact of the appeal from the convictions on 28 November 2022, and its outcome, were not before the Tribunal when it made its decision.

62    In assessing whether there was “another reason why the original decision should be revoked” under s 501CA(4)(b)(ii), the Tribunal took into account the considerations referred to in the successor to Direction 99, Direction No. 110, entitled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA” (Direction 110), including the primary considerations of protecting the Australian community and expectations of the Australian community: Direction 110 at [8].

63    When considering the protection of the Australian community, [8.1] of Direction 110 provides that the Tribunal should also consider “the nature and seriousness” of the applicant’s conduct. In doing so, the Tribunal considered the offences underlying the conviction on 28 November 2022 (along with the earlier convictions on 17 June 2022).

64    The Tribunal formed the view that the “offending had been serious as many of the offences involved sexual offending against women”; that the sexual offending “was repeated and of escalating significance”, and that “the most recent offending” (presumed by Needham J to be a reference to the convictions on 28 November 2022) “resulted in the most significant custodial sentence”: at [19] and [36]. The Tribunal also considered that, given the applicant’s history of sexual misconduct against women, “the expectations of the Australian community would weigh heavily against revocation”: at [25].

65    Before Needham J, the applicant submitted that the Tribunal mischaracterised his criminal history in two ways: first, that it failed to consider the appeal from the sentence and resentencing of the convictions on 28 November 2022 and, secondly, that the Tribunal overlooked that the 17 June 2022 sentence was suspended and that on appeal a conviction was recorded but no action was taken. Her Honour was not satisfied that, “on a fair reading of the Tribunal’s reasons, the Tribunal was indeed aware of the Applicant’s proper criminal history” (at [45]): those facts (ie, the appeal and resentencing, and the suspended sentence) were not before the Tribunal; the Tribunal did not in its reasons refer to those facts; and the reasons suggested that the facts were not taken into account: at [45]–[49]. Her Honour concluded that the Tribunal erred “in not engaging with the evidence of the Applicant’s full criminal history”: at [52].

66    Applying LPDT, Needham J then turned to the question of materiality and concluded that the discretion under s 501CA(4)(b)(ii) could have been exercised differently had the Tribunal taken into account the correct criminal record. That was (at [56]):

because of the express reliance on the seriousness of the sentences in addition to the underlying criminal conduct before the Tribunal, and the Tribunal … noting that it had regard to the custodial sentences as being a “reflection of the objective seriousness” of the conduct. Without the custodial sentence, the Tribunal may have regarded the criminal conduct of the Applicant in a different light.

Supplementary submissions

67    In supplementary submissions on Lu, Ruatita and Clark, the applicant contended:

(1)    Each decision in Lu, Ruatita and Clark supports the applicant’s contention that the Tribunal’s erroneous treatment of his criminal record gave rise to jurisdictional error.

(2)    The central premise of those decisions was that, given the drastic consequences of the power to cancel (or not to revoke the cancellation of) a person’s visa, Parliament cannot be taken to have contemplated that the power would be exercisable upon an incorrect understanding of the offences committed by the visa holder and the sentences imposed.

(3)    The evident vice in the Tribunal’s reasons is not limited to inflating the total number of offences connected to his ex-partner by five offences; rather, the error reveals a triple counting of the applicant’s most serious single offence of assault occasioning actual bodily harm, as well as triple counting a common assault charge.

(4)    That mistake fundamentally altered the overall characterisation of the applicant’s criminal history.

(5)    The error was material given the competing primary considerations involved in the Tribunal’s evaluative assessment.

68    In supplementary submissions, the Minister contended:

(1)    As previously submitted, the Tribunal erred at [21] in finding that “over thirty” of the applicant’s convictions related to acts of family violence, whereas the correct number was 27.

(2)    Given that the Tribunal’s statement at [21] appeared to be derived from the RSFIC, the Minister accepted that the error was likely not the result of a calculation error by the Tribunal. Accordingly, the Minister no longer pressed the argument that it was a mere error of fact by the Tribunal.

(3)    Following Clark, the Minister accepted that the error was jurisdictional if material.

(4)    However, the error was not material. The issue for the Tribunal was the nature and significance of the applicant’s offending, not whether the precise number of the applicant’s family violence offences was slightly more or less than 30. Repeating earlier submissions, the Minister contended that the Tribunal did not “double or triple count” the offences if what is suggested is that the Tribunal thought that those offences were committed more than once. The Tribunal’s decision did not turn on the number of the applicant’s family violence offences, as opposed to their frequency and nature. It is fanciful or improbable to suggest that the Tribunal could have decided in favour of the applicant if it had at [21] correctly stated the number of total offences.

CONSIDERATION

Jurisdictional error

69    The applicant will succeed if he can establish that the Tribunal’s decision was affected by jurisdictional error. A decision that is affected by jurisdictional error is, in law, no decision at all: LPDT at [2] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

70    The decisions in Lu and Ruatita, which were decided prior to the High Court’s decision in LPDT, approached the question of invalidity by asking whether there was jurisdictional error and then, separately, assessing the materiality of the error on the decision. However, the High Court in LPDT clarified that the concept of jurisdictional error only arises in circumstances where the error in question was material to the decision. How the materiality requirement is satisfied will depend on the particular case. As Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said (at [6]–[7] (footnotes omitted)):

In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non-compliance.

71    Their Honours then identified the two questions that must be addressed (at [9] (footnotes omitted)):

Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.

72    In circumstances where what is alleged is an error of fact, as in this case, a further threshold question arises; that is, whether the alleged error of fact is of a character capable of giving rise to jurisdictional error (that is, whether it would be jurisdictional if found to be material).

73    Consequently, I approach the analysis in this case by asking three questions: first, whether there were factual errors; secondly, if so, whether the factual errors were of a character capable of constituting jurisdictional error; and thirdly, if so, whether the errors were material.

Were there factual errors in the applicant’s criminal history?

74    Under Ground 1, the applicant alleges that the Tribunal relied upon an erroneous statement of his criminal record. Whether reliance on an erroneous factual foundation is one that is capable of constituting jurisdictional error will be considered below. For now, the question is whether the Tribunal did in fact rely on erroneous information about the applicant’s criminal record and, if so, to what extent. To answer that question, it is necessary to outline the information that was presented to the Tribunal in the RSFIC.

75    The RSFIC presented the applicant’s criminal history under two headings. First, under the heading “Criminal History”, the RSFIC stated that “[t]he Applicant has an extensive criminal history in Australia. His Nationally Coordinated Criminal History Check dated 23 August 2023 spans 21 pages and covers a period between 23 November 2004 and 28 July 2023 (G3/26-46)”. A list of his convictions was then set out, including: 20 offences of contravene prohibition/restriction in AVO (Domestic); four offences of common assault (DV) - T2; three offences of assault occasioning actual bodily harm (DV) T2; four offences of destroy or damage property (DV); four offences of destroy or damage property (DV); and one offence of stalk/intimidate intend fear physical etc harm (domestic) - T2.

76    Secondly, under the heading “Circumstances of Conviction”, the RSFIC stated that “[o]ver 30 of the Applicant’s convictions relate to a domestic violence history involving his ex-partner” (emphasis added). Following this shorthand description of the total number of offences involving family violence, the RSFIC then identified “examples” of the applicant’s domestic violence related convictions and summarised the examples.

77    In summary, the Minister (a) identified a list of offences; (b) stated in shorthand that over 30 offences related to domestic violence; and (c) identified and summarised “examples” of domestic violence related offences.

78    By the time of the hearing before this Court, it was not in dispute that the list of offences in the RSFIC was inaccurate in the following respects:

(1)    There was one conviction, not three, for the offence of assault occasioning actual bodily harm;

(2)    There were two convictions, not four, for the offence of common assault;

(3)    There were 19, not 20, convictions for offences of contravene prohibition/restriction in AVO; and

(4)    The number of domestic violence related offences relating to the applicant’s ex-partner was 27 rather than over 30.

79    While the Minister was correct to observe that the applicant’s statement of facts, issues and contentions also listed common assault four times and assault occasioning actual bodily harm three times, the question of whether the Tribunal acted within jurisdiction when proceeding on a misunderstanding of the applicant’s criminal history cannot be avoided by the fact that the parties each presented an erroneous account of that history in their respective SFICs.

80    It appeared to be common ground at the hearing, at least in relation to the assault convictions, that these errors occurred because of the failure to properly account for the calling up and resentencing for a breach of conditional orders. That occurred in the following way:

(1)    The conviction for assault occasioning actual bodily harm was dealt with by the Local Court on 7 January 2016 with the imposition of a s 9 bond for two years. On 31 October 2017, the applicant was called up for breaching the bond and the Local Court imposed another s 9 bond for two years. On 30 May 2018, the applicant was called up again for breach of the bond and the Local Court imposed an ICO for a period of six months. Contrary to what was stated in the RSFIC, there was only one offence occasioning actual bodily harm, not three.

(2)    The conviction for one of the common assault charges (relating to the water park incident) was dealt with by the Local Court on 18 May 2022 with the imposition of a CRO. On 5 August 2022, the applicant was called up for a breach of that CRO and the Local Court dealt with the breach by imposing a CCO for 12 months. The applicant was called up again on 23 January 2023 for a breach of the CCO. The Local Court imposed an indicative sentence of imprisonment of 5 months. On this occasion, the magistrate was dealing with a number of offences and imposed an aggregate sentence of 22 months. The point for present purposes is that the common assault charge relating to the water park incident was called up on two occasions for resentencing: there were not three separate convictions in relation to that incident.

(3)    In relation to the additional conviction for the breach of an AVO, on 18 May 2022 the applicant was before the Local Court for the offence of contravene prohibition/restriction in AVO (Domestic). On that occasion, the magistrate imposed a CRO. On 5 August 2022, the applicant was called up for a breach of the AVO with a s 10A conviction recorded and no other penalty imposed. While this error was not expressly accepted by the Minister, its acceptance was implicit in the recognition that the total offences in relation to the applicant’s ex-partner were 27 in number. In any event, it is the errors in relation to the assault offences that are of most significance for the purposes of the analysis below.

81    While it was common ground that erroneous information had been presented to the Tribunal, the question is whether these errors were also made by the Tribunal.

Did the Tribunal rely on an inaccurate criminal history?

82    Three initial observations may be made about the criminal history included in the RSFIC and the Tribunal’s account of the applicant’s criminal record. First, the list of offences set out in the RSFIC was not reproduced in the Tribunal’s reasons. Secondly, there is a striking similarity between the terms of the shorthand description in the RSFIC and the Tribunal’s summary at [2] and [21]. Thirdly, the identification and description of the “examples” in the RSFIC correspond closely with what is set out in the Tribunal’s reasons at [22]–[28]. To take one example, the RSFIC stated (underlined emphasis added):

the Applicant's convictions on 5 August 2022 (i.e. common assault (DV)-T2, contravene prohibition/restriction in AVO (Domestic) (3 counts) and destroy or damage property (DV)), for which he was sentenced by the Bankstown Local Court to multiple terms of imprisonment between 13 June 2022 and 12 August 2022, followed by a 12-month Community Correction Order (CCO) with supervision (G3/43; G5/128). The circumstances were such that, whilst an ADVO was in place against the Applicant for the protection of [his ex-partner], along with a Conditional Release Order (CRO), the couple began to disagree on a few topics whilst consuming alcohol at their family home. [His ex-partner] asked the Applicant to leave which ultimately resulted in the Applicant grabbing the wire screen door of the home and pulling it off its hinges (EB/257). When interviewed by NSW Police, the Applicant “denied all allegations made by the victim, stating he was with his parents at their house….However [he] was unable to supply any substantiating evidence in relation to his clams” (EB/258);

83    In describing this offence, the Tribunal stated (at [23], emphasis added)):

On 5 August 2022, the applicant was convicted of common assault (DV)-T2 and contravene prohibition/restriction in AVO (Domestic) (3 counts) and destroy or damage property (DV)), for which he was sentenced by the Bankstown Local Court to multiple terms of imprisonment between 13 June 2022 and 12 August 2022, followed by a 12-month CCO with supervision. The circumstances contained in Police fact sheets are that, whilst an ADVO was in place against the applicant for the protection of his ex-partner, and while the applicant was on bail for previous domestic violence related offences, the couple began to disagree on a few topics while consuming alcohol together at their family home. The applicant’s ex-partner asked the applicant to leave, which ultimately resulted in the applicant grabbing a wire screen door of the home and pulling it off its hinges. When interviewed by NSW Police, the applicant “denied all allegations made by the victim, stating he was with his parents at their house…”

84    This comparison is indicative of the close correspondence between the description of the offences in the RSFIC and the Tribunal’s reasons set out earlier at [14] in these reasons.

85    The point of this comparison is twofold:

(1)    First, that the Tribunal did not reproduce the list of offences set out in the RSFIC.

(2)    Secondly, otherwise, the Tribunal appeared to rely heavily on the Minister’s statement of criminal history, both as to the shorthand description of the applicant’s criminal history and the identification and description of the “examples” of offending.

86    In written submissions and at the hearing, the Minister submitted that the Tribunal made only two errors. The first was in the adoption of the summary description of offences relating to domestic violence, and the second was an error at [23] where the Tribunal wrongly referred to the applicant being convicted on 5 August 2022 of common assault, along with other matters. The Minister also submitted that, on a fair reading, the Tribunal’s reasons show that there was no real misunderstanding in relation to the number of assault convictions despite an incorrect reference to over 30 offences rather than 27. The Minister submitted that the Tribunal:

(1)    took account of the assault occasioning actual bodily harm only once at [26],

(2)    dealt with the assault arising from the water park incident only once at [24]; and

(3)    considered the second assault only once at [22].

87    In supplementary submissions, the Minister again accepted that that the Tribunal erred at [21] (and, presumably, also at [2]) in finding that “over thirty” of the applicant’s convictions related to acts of family violence. However, the Minister denied that there was any double or triple counting.

88    For the following reasons, I accept that the Tribunal exercised its jurisdiction on an erroneous understanding of the applicant’s criminal record including, in particular, an erroneous understanding of the number of assault offences.

89    First, the close correspondence between the information presented in the RSFIC and the Tribunal’s reasons makes it unlikely that the Tribunal undertook its analysis in disregard of the list of offences: there is no express rejection of that list in the Tribunal’s reasons; it is unlikely that the Tribunal accepted the shorthand description of the total number of offences without also accepting the erroneous list of offences; and there is no indication that the Tribunal undertook its own calculation of that total number, disregarding that list.

90    Secondly, it was common ground (at least at the hearing) that the Tribunal erred at [23] in its identification of a conviction for common assault in relation to the water park incident. That offence was later described at [24]. The resentencing for that offence was also a component of the 22 months’ sentence referred to in [22]. That is consistent with the one offence being treated by the Tribunal as three separate offences.

91    Thirdly, while I accept that the circumstances of only three assault offences were described in the Tribunal’s reasons at [22], [24] and [26], the RSFIC had identified and described these as “examples”. They were presented to the Tribunal in terms that were not exhaustive of the offences committed.

92    Fourthly, as set out at [16] above, the Tribunal stated in its reasons that the applicant was “convicted of multiple counts of both common assault and assault occasioning actual bodily harm” (emphasis added). That statement is at odds with the correct position of the applicant’s criminal record.

93    In summary, I accept that on a fair reading of the Tribunal’s reasons it can be inferred that the Tribunal undertook its task drawing heavily on the identification and description of the applicant’s offences as set out in the RSFIC. That identification and description contained errors including the number of assault offences committed by the applicant. Consequently, I accept the applicant’s submission that the Tribunal misunderstood the applicant’s criminal history when applying Direction 99 and in reaching its conclusion. The errors were more extensive than a simple inflation of the shorthand description of the total number of offences relating to family violence.

Were the factual errors of a character capable of constituting jurisdictional error?

94    As the Minister indicated, it is trite to observe that “there is no error of law simply in making a wrong finding of fact”: Abebe at [137] (emphasis added) (Gummow and Hayne JJ, dissenting in the result); citing Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25 at 77 (Brennan J); see also Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35–36 (Brennan J).

95    However, as Robertson J has written extra-curially, developments in the law “test[] or illustrate[] the meaning of the word ‘simply’”: Alan Robertson, “The Federal Court and Administrative Law: How Does the Court Deal with Findings of Fact on Judicial Review?” in Ridge and Stellios (eds) The Federal Court’s Contribution to Australian Law: Past, Present and Future (2018) 83 at 93.

96    As the applicant correctly pointed out, Kiefel CJ, Keane, Gordon and Steward JJ said in Plaintiff M1 at [27] that jurisdictional error may occur “if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials”. I agree, respectfully, with the statement by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [77], made in the context of fact-finding errors, that determining whether there is jurisdictional error “is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error”. See also McDonald, Rundle and Hammond, Principles of Administrative Law (4th ed, 2023) at 196–8.

97    In supplementary submissions, and having considered the decisions in Lu, Ruatita and Clark, the Minister accepted that the Tribunal’s error, in finding that “over thirty” (rather than 27) of the applicant’s offences related to acts of family violence, was jurisdictional if material. It necessarily follows that the more extensive errors that I have accepted were made by the Tribunal are jurisdictional if material. My reasons for that conclusion now follow.

98    I take from Lu, Ruatita and Clark the following propositions for the purposes of determining Ground 1.

99    First, the principles applied in Lu and Ruatita are not limited to the review of ministerial decisions (or those of a delegate) made on the basis of an inaccurate criminal record presented in a ministerial briefing. In Clark, Needham J, correctly in my view, applied the principles to a decision of the Tribunal under s 501CA(4). There is no principled reason why they should not apply to a decision of the Tribunal when standing in the shoes of the Minister or delegate. The “drastic consequences” of the Tribunal’s decision make it equally “unlikely” that Parliament intended that the Tribunal’s jurisdiction could be exercised on the basis of incorrect information about a visa holder’s criminal record: Lu at [55]. The serious consequences for the visa holder are no less the case when it is the decision of the Tribunal under s 501CA(4) rather than a decision of the Minister under s 501A as was the case in Lu.

100    Secondly, not all errors in the criminal record will imperil the validity of a decision. As Sackville J recognised in Lu, minor errors relating to a conviction or sentence will not, in substance, result in the decision-maker failing to exercise their jurisdiction. That might be the case either (a) because the error was not, in substance, of any significance to the Tribunal’s exercise of jurisdiction and, therefore, not of a character capable of constituting jurisdictional error or (b) because the error lacked materiality in the sense now understood following LPDT. The materiality aspect of this enquiry will be considered below in these reasons.

101    Thirdly, whether an error of fact in the criminal record is, in substance, of significance to the Tribunal’s jurisdiction will depend on a close assessment of the character of the power or discretion to be exercised, how relevant the criminal history is to the exercise of that power or discretion, and how the criminal record was taken into account by the decision-maker in exercising the power or discretion: see also LPDT at [5].

102    With those propositions in mind, I turn to consider whether the errors of fact were of a character capable of constituting jurisdictional error in the sense that the errors were, in substance, of significance to the Tribunal’s exercise of jurisdiction.

103    As the Tribunal recognised at [6], the “sole issue for determination” was whether there was “another reason” for the purposes of s 501CA(4)(b)(ii) why the visa cancellation should be revoked. In determining that question, the Tribunal was required to have regard to Direction 99. The considerations under Direction 99 included the protection of the Australian community from criminal or other serious conduct (including the nature and seriousness of the applicant’s conduct and the risk of reoffending), whether the conduct engaged in constituted family violence and the expectations of the Australian community. The applicant’s criminal record was relevant to each of these enquiries, and the Tribunal had regard to it when addressing each consideration.

104    The applicant’s criminal record, and his history of assault offences in particular, was a central part of the factual foundation for the application of the primary considerations set out in Direction 99. The effect of the errors was to inflate the number of the applicant’s offences, particularly the assault offences, relating to domestic violence. That inflation necessarily distorted the Tribunal’s evaluation of the primary considerations:

(1)    The erroneous reference to over 30 offences relating to acts of family violence against his ex-partner was made when considering the nature and seriousness of the applicant’s conduct: at [20]. As I have concluded, that shorthand description by inference assumed an incorrect number of assault offences relating to family violence and, at least in relation to one of the offences of common assault, the erroneous record found reflection in the Tribunal’s reasons at [22], [23] and [24] in the way described earlier in these reasons. It is likely that the number of assault offences would have contributed to the Tribunal’s observations that “[t]he applicant has an extensive criminal history” (at [2]) and that “[t]he applicant’s criminal history demonstrates an alarming pattern of disruptive and violent behaviour”: at [21].

(2)    In concluding that the applicant posed a “medium risk of offending”, the Tribunal considered that the applicant “has demonstrated a serious disregard for the Australian justice system and its laws through his offending conduct, including continual domestic violence offending”: at [31]. The frequency of that offending is necessarily a function of the number of offences committed.

(3)    As already noted, in considering the applicant’s expression of remorse, the Tribunal referred erroneously to “multiple counts of both common assault and assault occasioning actual bodily harm”: at [32].

(4)    Both the nature and seriousness of the applicant’s offending, and the assessed risk of reoffending, led to the conclusion that the risk of reoffending was “unacceptable”: at [41].

(5)    In addressing family violence, the Tribunal stated that “[a]s already detailed in these reasons, the applicant has a significant history of domestic violence related offences”, and noted the “frequency and repeated nature of the applicant’s acts of ‘family violence’”: at [45]. The number of assault offences is likely to have been a contributing factor to such conclusions.

(6)    In addressing the expectations of the Australian community, the Tribunal stated that “the applicant’s offending involved repeated domestic violence offences”: at [61]. Again, the number of assault offences is likely to have been a contributing factor to such a conclusion.

105    Each of these considerations led to conclusions that weighed either “very heavily” (at [28], [42] and [46]) or “significantly” (at [62]) against revocation of the visa cancellation.

106    All of this is to say that the erroneous information about the applicant’s criminal record was taken into account by the Tribunal in its evaluation of the primary considerations, and was central to the conclusions that it reached. The errors, going to the number of offences related to family violence, particularly the number of assault offences, were no less significant than the misdescription and misunderstanding of the term and nature of the sentences in Lu and Clark, or the period of imprisonment in Ruatita. They were of no less significance to the Tribunal’s assessment of primary considerations than the error in Lu (which the Tribunal considered in addressing the risk of recidivism) or the error in Ruatita (which the Tribunal considered in addressing the duration and nature of the person’s ties to Australia). In my view, the errors in this case could not be characterised as minor in the relevant sense.

107    On the authority of Lu, and mindful of the reasoning in Ruatita and Clark, I consider that the factual errors were of a character capable of being jurisdictional errors if material.

Were the errors material?

108    I will approach the question of materiality on the assumption that the discretion in s 501CA(4) “incorporates a requirement of materiality”: LPDT at [9]; see Clark at [44]. The question to be addressed is whether “there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred”: LPDT at [7]. As the joint judgment said in LPDT, “meeting that threshold is not demanding or onerous”: at [14].

109    The Minister’s submission that the errors were not material was premised on the postulated position in the Minister’s submissions (taken together) that the only factual errors were the misdescription of the total number of offences relating to family violence and the erroneous statement of a conviction in [23]. However, I have concluded that the errors were more extensive and affected central threads of the Tribunal’s evaluation of the primary considerations.

110    It follows from those conclusions that the errors had a material impact on the Tribunal’s ultimate conclusions. That is, given the potentially distorting impact of the factual errors on the Tribunal’s central analysis, and the fact that other primary considerations weighed heavily in favour of a revocation of the cancellation (see above at [24]), I am satisfied that there was a realistic possibility that the decision that was made could have been different if the Tribunal had acted on an accurate account of the applicant’s criminal record. I am not satisfied that there is “a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made”: LPDT at [16]. If the Tribunal had proceeded on an accurate understanding of the number of offences, the possibility of a favourable outcome for the applicant is not “fanciful or improbable”: LPDT at [14]. Whether that is in fact the case will be a matter for the ART in its reconsideration of the applicant’s review application on an accurate understanding of the applicant’s criminal record.

ORDERS

111    The applicant succeeds on Ground 1.

112    A writ of certiorari will be issued to quash the decision of the Tribunal. As the Tribunal has now been replaced by the ART, a writ of mandamus will be directed to the ART requiring it to determine the applicant’s application according to law: Transitional Provisions, Sch 16 item 25(2).

113    The first respondent is to pay the applicant’s costs as agreed or assessed.

Associate:

Dated:    12 December 2025