Federal Court of Australia

Richards v Minister for Immigration and Citizenship [2026] FCA 602

ORDERS

THE COURT ORDERS THAT:

1. The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.

2. A writ of certiorari be issued quashing the decision of the second respondent made on 31 March 2025.

3. A writ of mandamus be issued remitting the applicant’s application for review to the Administrative Review Tribunal differently constituted for determination according to law.

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

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

Background

1 The applicant is a 58-year-old citizen of New Zealand who first entered Australia on 30 May 1985, aged 18.  The applicant last entered Australia on 6 February 2016 at which time he was granted a Special Category (Temporary) (Class TY) Special Category (subclass 444) visa.

2 On 8 February 2019, the applicant was convicted in the Supreme Court of the Northern Territory of two offences relating to accessing child pornographic material and child abuse material.  The applicant was sentenced to a term of imprisonment of two years on count one and six months on count two with the sentences to be served concurrently.  The applicant’s sentence on count one was suspended immediately upon him entering a Recognisance to be of good behaviour for two years with the sentence on count two being suspended.

3 On 5 December 2024, a delegate of the first respondent cancelled the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth).

4 On 15 January 2025, the applicant applied to the Administrative Review Tribunal for a review of the delegate’s decision to cancel his visa.  On 31 March 2025, the Tribunal affirmed the delegate’s decision.

5 On 5 May 2025, by way of originating application, the applicant applied for judicial review of the Tribunal’s decision, seeking a writ of certiorari quashing the Tribunal’s decision and a writ of mandamus requiring that the Tribunal determine the applicant’s application for review according to law.

6 The application, in summary, comprises the following grounds of review:

(a) The Tribunal misinterpreted Ministerial Direction 110 in its consideration of paragraph 8.1 by effectively requiring that the applicant demonstrate that there was no risk of him reoffending;

(b) Further, or alternatively, the Tribunal incorrectly relied on evidence of the applicant’s alcohol use to support its assessment that there was “not … no risk” that the applicant would reoffend, making its conclusion as to risk legally unreasonable; and

(c) Further, or alternatively, the Tribunal in coming to its ultimate conclusion failed to engage in the requisite evaluative exercise of balancing and weighing the relevant considerations in Direction 110.

7 The issue for determination is whether the Tribunal’s decision to affirm the delegate’s decision was attended by jurisdictional error.

8 It is for the reasons which follow that the Tribunal’s decision was attended by jurisdictional error with the consequence that the application is allowed.

The Tribunal’s Reasons

9 The Tribunal considered each of the primary and other considerations contained in Direction 110, but focused principally on its analysis of the first primary consideration in that Direction, being ‘Protection of the Australian community from criminal or other serious conduct’.  That included its analysis of the evidence in relation to the applicant’s alcohol use in considering the risk of the applicant reoffending.

Primary consideration (1) – Protection of the Australian community from criminal or other serious conduct

10 The Tribunal set out the applicant’s subject offending: Reasons [27]-[33].

11 In summary, a search warrant was executed in May 2017 at the applicant’s home.  From that search, police officers seized three devices and following a forensic examination of those devices and an interview with the applicant, established that he had posted sexually suggestive comments on images of underage females and that he was in possession of child abuse material.

12 That child abuse material was categorised by reference to the Australian National Victim Identification Library which comprises six categories of child pornography material.

13 The Tribunal noted that count one concerned images which were classified as category 1 files.  That is, no sexual activity: depiction of children with no sexual activity – nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing and explicit emphasis on genital areas.

14 The applicant had made a number of comments on those images on 1 January 2017 and further comments between that date and 1 February 2017.

15 Count two concerned 27 images — 21 of which were category 1 files, two category 3 files, three category 4 files and one category 6 file.  Category 3 and 4 images depict sexual activity between child(ren) and adult(s).  Category 3 involves non-penetrative sexual activity, whereas category 4 includes sexual penetrative activity.

16 In assessing the primary consideration of the protection of the Australian community, the Tribunal considered the matters in paragraph 8.1.1 of Direction 110, and in particular sub-paragraph (a) when considering the seriousness of the applicant’s criminal offending:

…

a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i.    violent and/or sexual crimes;

ii.    crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

…

17 The Tribunal concluded: R [44] that the applicant’s subject offending fell within the scope of paragraph 8.1.1(a) of Direction 110 and is viewed very seriously by the Australian Government notwithstanding that the Supreme Court considered that most of the images were at the lowest level of classification and that the subject offending was at the less serious end of the spectrum.

18 The Tribunal considered various other matters in paragraph 8.1.1 noting that child pornography is not a victimless crime, that the offending did not occur over a long period of time, and there was no increasing trend in  seriousness: R [40]-[41].  The Tribunal also noted that there was no evidence of the applicant repeating the subject offending nor of the applicant being formally warned about the consequences of further offending on his migration status: R [41]-[43].

Risk to the Australian Community

19 Next, the Tribunal considered the requirements of paragraph 8.1.2(a) of Direction 110 which addresses the risk to the Australian community, including the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct or other serious conduct similar to the subject offending.  The Tribunal: R [47] found that “the potential for harm to others is very significant” should the applicant re-offend, noting that the Supreme Court had accepted Crown submissions that the “… possession of child pornography is not a victimless crime because children are sexually abused in order to supply the market.”

20 The Tribunal then turned to paragraph 8.1.2(b) of Direction 110 in considering the likelihood of the applicant engaging in further criminal conduct or other serious conduct if he were permitted to remain in the Australian community.  Paragraph 8.1.2(b) of Direction 110 required the Tribunal to consider:

(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).

…

21 In accordance with paragraph 8.1.2(b)(i) of Direction 110, the Tribunal summarised and considered the information and evidence relating to the risk of the applicant reoffending: R [49]-[75].

22 The Tribunal summarised the evidence of psychologist, Ms Chloe Oliver, who conducted a clinical assessment of the applicant over Microsoft Teams on 31 January 2025 and produced a report dated 12 February 2025.  According to Ms Oliver’s evidence, the applicant presented as being at a low risk of future offending in respect of offending similar to the subject offending or contact offending.  Ms Oliver identified the applicant’s risk factors to be social isolation, his introverted nature, limited emotional support and alcohol use.  Ms Oliver considered that the applicant required “ongoing intervention with a psychologist who is suitably experienced in conditions of addiction, dependence and social difficulties to assist him with formulation of strategies to prevent alcohol relapse and monitor for any changes in current risk classification”: R [49]-[52].

23 However, in her oral evidence before the Tribunal, Ms Oliver clarified that social isolation was not particularly a risk factor for the applicant any longer as it is a dynamic risk factor that had changed, as he had a lack of social support such that it also was no longer present as a risk factor.

24 Another identified risk factor was substance abuse, however it was not a risk factor for this applicant.  Insofar as alcohol was a risk factor for the applicant, it related to risks to his health.

25 Next, the Tribunal summarised the evidence of psychologist, Ms Hope Rigby: R [53].  The applicant attended his first session with Ms Rigby on 1 December 2018 and continued to attend further sessions with her between February 2019 and February 2021 as part of his supervised sentence for the subject offending.  According to Ms Rigby’s evidence, the applicant’s risk of reoffending is “extremely low”.  Ms Rigby identified the applicant’s risk factors at the time of the subject offending as being anxiety, depression and isolation.  Apparently, Ms Rigby was unaware of concerns relating to the applicant’s alcohol use and agreed in her evidence before the Tribunal that had she known of these concerns, she would have included alcohol use as a risk factor.

26 Ms Rigby had not undertaken a recent assessment of the applicant.  In view of that, and the fact that she was unaware of the concerns relating to the applicant’s alcohol use, the Tribunal preferred Ms Oliver’s evidence on risk: R [54].

27 The Tribunal noted the applicant’s evidence that he has a very strong motivation not to re-offend and that he was 100% confident that he would not do so.  The Tribunal also referred to the Supreme Court considering the applicant’s rehabilitation to be a “very significant factor”: R [55]-[56].

Alcohol use

28 The Tribunal continued by considering in some depth the evidence concerning the applicant’s alcohol use: R [57]-[69].

29 The Tribunal referred to a statutory declaration of the applicant dated 4 December 2019.  In that declaration, the applicant stated that prior to the subject offending, he was “drinking far too much, eating the wrong foods and not exercising.”  The Tribunal also referred to his evidence in cross examination where he accepted that at the time of the subject offending, he was depressed, lonely and drinking heavily: R [57].

30 Before the Tribunal, the Minister submitted that the applicant had not addressed his alcohol use and that the applicant’s ongoing behavioural concerns may contribute to his risk of reoffending: R [58].  The applicant submitted in response that whilst alcohol use was an attendant factor at the time of the subject offending, it was not directly causative of the offending behaviour and that despite ongoing alcohol consumption since the subject offending, he had not re-offended, save for a minor traffic infringement: R [59].

31 The Tribunal then turned to Ms Oliver’s report dated 12 February 2025, which recorded that: R [60].

(a)    the Applicant reported that he could ‘consume up to 6 standard drinks a night on a weeknight and sometimes more than this on weekends’

(b)    when discussing his alcohol consumption, the Applicant reported that prior to him being placed in detention, he did not hold a belief that this was problematic in his life or had negative impacts

(c)    the Applicant confirmed that [the subject offending] had occurred whilst intoxicated or consuming alcohol

(d)    the Applicant reported that at the time the subject offending occurred, he had a high degree of social isolation and that he would spend evenings with his sons using the internet or online gaming whilst he would consume alcohol, which had led him to accessing adult pornography each night for a number of months before 'he then independently searched for the CAM/CSEM’ [i.e.: Child Abuse Material or Child Sexual Exploitation Material]

(e)    the Applicant was largely unable to account for the escalation in his behaviours.

(footnotes omitted, square brackets provided in (d))

32 The Tribunal referred to Ms Oliver’s reporting on the applicant’s clinical features following a Personal Assessment Inventory of the applicant.  Those features included: R [61]

(a)    the configuration of the clinical scales suggest a person with a history of drinking problems who is quite unhappy and pessimistic

(b)    the Applicant's alcohol problems have probably led to severe impairment in his ability to maintain his social role expectations

(c)    the Applicant is likely to be unable to cut down on his drinking despite repeated attempts at sobriety

(d)    the Applicant reports a number of difficulties consistent with a significant depressive experience

(e)    the Applicant's depression and alcohol use may be related in a number of different ways; the depression could be deriving the alcohol use or it could be a consequence of the disruption association with his alcohol use.

(footnotes omitted)

33 The Tribunal referred to Ms Oliver’s evidence in cross examination: R [62]-[65].  Ms Oliver gave evidence that the applicant displayed signs of alcohol dependency at the time of the subject offending, however Ms Oliver also gave evidence that the applicant’s motivation for drinking alcohol at the time of the subject offending was different to his current motivation for drinking alcohol.  Before the Tribunal, Ms Oliver confirmed her assessment that the applicant was at “low risk” for dependence symptoms, and that based on the applicant’s performance in the Alcohol Use Disorder Identification Test, she did not consider alcohol use to be a current risk factor for the applicant in terms of dependency or alcohol use disorder.

34 The Tribunal noted, relevantly, that the Court did not impose an alcohol prohibition condition on the applicant: R [66].

35 The Tribunal continued: R [67]-[68] by referring to Ms Rigby’s evidence in cross-examination that there was “nothing in [her] notes that [the applicant] was drinking at the time of the offending” and again noted her acceptance in evidence that she would have included alcohol use as one of the applicant’s risk factors had she been aware of it at the time.

36 The Tribunal went on to find at: R [72] that whilst alcohol use alone does not increase the applicant’s risk level in terms of his likelihood of recidivism, the evidence nonetheless demonstrated that:

(a)    alcohol use was an attendant factor at the time the Applicant offended, the Applicant's alcohol use had increased prior to detention after a period of decreased alcohol use, and the Applicant has not undertaken any counselling to address his alcohol use, and

(b)    Ms Oliver recommended that the Applicant requires ongoing intervention with a psychologist to prevent alcohol relapse and to monitor for any changes in current risk classification.

(footnotes omitted)

Mental health

37 Next, the Tribunal: R [73]-[75] considered the evidence in relation to the applicant’s mental health.

38 Ms Rigby’s evidence in this respect was broadly that in 2018, the applicant was assessed as suffering from severe anxiety and depression which likely pre-dated the subject offending.

39 Ms Oliver’s evidence on this point by contrast suggested that although the applicant was suffering from extremely severe depression at the time of her clinical assessment in 2025, this was more likely to have been a reaction to his entering detention and the circumstances concomitant with that event, rather than a long-term state.

Rehabilitation

40 In accordance with paragraph 8.1.2(b)(ii) of Direction 110, the Tribunal considered the evidence relating to the applicant’s rehabilitation: R [76]-[79].  In summary, the Tribunal found that there was evidence demonstrating the rehabilitation of the applicant, including that he has lived in the community since the subject offending, Ms Oliver’s assessment that the applicant demonstrated behavioural change since the subject offending, and the applicant had complied with his supervision orders.  The Tribunal also referred to what it considered to be the applicant’s protective factors.  These included his long-term employment with the same employer, his reporting obligations under the Child Protection Offender Registry, his involvement in a Men’s Shed since the subject offending, and time spent with his family and he and his wife’s two rescue dogs since his release from detention.

41 As to the first primary consideration, the Tribunal concluded that primary consideration (1) weighted in favour of exercising the discretion to cancel the visa: R [80]-[82].

80.    I find that the subject offending constitutes conduct viewed very seriously by the Australian Government and the Australian community and I find that it was serious offending. I consider that the potential for harm to the Australia community, should the Applicant commit offences of a similar nature in the future, is significant.

81.    I find that the Applicant has engaged in therapy, pro social activities and that there are protective factors for the Applicant in the community. That the Applicant has lived in the community since the subject offending and has not reoffended is demonstrative of the Applicant's rehabilitation. I accept Ms Oliver's assessment of the Applicant as having a low risk of reoffending, and that the Court's approach indicated that it considered that the Applicant had a low risk of reoffending. Low risk does not mean no risk, and it is relevant that alcohol use was an attendant factor at the time the Applicant offended, that the Applicant's alcohol use had increased prior to detention after a period of decreased use and that the Applicant has not undertaken any counselling to address his alcohol use. Relevantly, Ms Oliver recommended that the Applicant requires ongoing intervention with a psychologist to prevent alcohol relapse and to monitor for any changes in current risk classification.

82.    I find that primary consideration 1 weighs in favour of exercising the discretion to cancel the visa.

(footnotes omitted, emphasis provided)

Primary consideration (2) – Family violence

42 The Tribunal afforded no weight to this consideration.

Primary consideration (3) – The strength, nature and duration of ties to Australia

43 The Tribunal ultimately found that the primary consideration of the strength, nature and duration of ties to the Australian community weighed heavily against the exercise of the discretion under s 501(2) to cancel the applicant’s visa: R [117].  There is no complaint about this finding.

Primary consideration (4) – Best interests of minor children

44 The parties agreed before the Tribunal that no minor child would be affected by a decision to cancel the applicant’s visa.

Primary consideration (5) – Expectations of the Australian community

45 The Tribunal ultimately found that the expectations of the Australian community weighed in favour of the exercise of the discretion under s 501(2) to cancel the applicant’s visa.

46 In coming to its conclusion on this primary consideration, the Tribunal: R [120]-[121] considered paragraph 8.5(2) of Direction 110 which provides that the Australian Government can, and should, cancel non-citizens’ visas if they raise serious concerns through conduct of the kind included at sub-paragraph (c) of that paragraph, being the “commission of serious crimes against … children …; in this context, ‘serious crimes’ include crimes of a violent or sexual nature …”.

47 The Tribunal: R [122] found that that applicant’s subject offending was viewed very seriously by the Australian community, and that the offences fell under the categories of conduct specified in paragraph 8.5(2): R [122].

48 The Tribunal concluded that the Australian community would expect that the Australian Government would not allow the applicant to remain in Australia, and therefore, that the primary consideration of the expectations of the Australian community weighed in favour of exercising the discretion to cancel the applicant’s visa: R [122]-[124].

Other considerations

49 The Tribunal then turned to the other considerations listed at paragraph 9 of Direction 110.

50 The applicant’s submissions before the Tribunal focused on the other considerations listed at paragraphs 9.2 and 9.3 of Direction 110, being the extent of impediments to the applicant and the impact on Australian business interests respectively, should the applicant be removed from Australia.

51 In summary, the Tribunal found that the applicant may face impediments including social and familial isolation and the associated risk of a decline in his mental health.  However, the Tribunal was satisfied that the applicant could access treatment for his mental health and alcohol use in New Zealand as required.  In all, the Tribunal concluded that the other considerations which concerned the extent of the impediments to the applicant weighed moderately against the exercise of the discretion under s 501(2) to cancel the applicant’s visa: R [136], [137].

52 In considering paragraph [9.3] of Direction 110, being the impact on Australian business interests, the Tribunal found that despite the applicant’s skills, knowledge and experience not being easily replaceable by his employer, the cancellation of the applicant’s visa would not significantly compromise the delivery of an important service in Australia and as such the Tribunal gave no weight to the impact on Australian business interests: R [139].

The Tribunal’s conclusions

53 The Tribunal brought together the various considerations it had addressed in earlier parts of its reasons, preceded by reference to the decision-making principles articulated in paragraph 5.2 of Direction 110: R [140]-[141].

54 The Tribunal found that the primary consideration (1), of protecting the Australian community, weighed in favour of exercising the discretion to cancel the visa: R [142].  That was because the subject offending was viewed very seriously by both the Australian Government and the Australian community and that the Tribunal found the offending was serious.  The Tribunal also considered that the potential for harm should the applicant commit offences of a similar nature in the future is significant.  Importantly, the Tribunal continued in relation to the applicant’s risk of reoffending:

… The Applicant has engaged in therapy, pro social activities and there are protective factors for the Applicant in the community. That the Applicant has lived in the community since the subject offending and has not reoffended is demonstrative of the Applicant's rehabilitation. I accept Ms Oliver's assessment of the Applicant as having a low risk of reoffending, and that the Court's approach indicated that it considered that the Applicant had a low risk of reoffending. However, low risk does not mean no risk. Alcohol use was an attendant factor at the time the Applicant offended, and the Applicant's alcohol use had increased prior to detention after a period of decreased use. The Applicant has not undertaken counselling to address his alcohol use and Ms Oliver recommended that the Applicant requires ongoing intervention with a psychologist to prevent alcohol relapse and to monitor for any changes in current risk classification…

(emphasis added)

55 The Tribunal continued in finding that primary consideration (5) weighed in favour of exercising the discretion to cancel the visa, noting its previous finding that the Australian Community, as a norm, would expect that the Australian Government would not allow the applicant to remain in Australia: R [143].

56 The Tribunal considered primary consideration (3) weighed heavily against the exercise of the discretion to cancel the visa and that the applicant’s family members, all of whom are Australian citizens, will be negatively impacted by the applicant’s removal from Australia: R [144].

57 The Tribunal found that the extent of impediments facing the applicant should he be removed from Australia weighed moderately against the exercise of the discretion to cancel the visa: R [145].

58 The Tribunal concluded its assessment as follows: R [146]:

146.    The Direction provides that primary consideration 1 is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations. I find no reason to depart from that approach in this case. In the circumstances of this case, I find that primary considerations 1 and 5 outweigh primary consideration 3 and other consideration (b).

59 As a consequence, the Tribunal affirmed the decision to cancel the applicant’s visa.

Statutory framework and Direction 110

60 Section 501(2) of the Act confers the Minister or delegate with the discretion to cancel a visa on character grounds:

501 Refusal or cancellation of visa on character grounds

Decision of Minister or delegate—natural justice applies

…

(2)    The Minister may cancel a visa that has been granted to a person if:

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

…

61 It was not in dispute before the Tribunal that the applicant did not pass the character test given he is a person with a “substantial criminal record” within the meaning of s 501(7).

62 The Tribunal’s review concerned the correct application of Direction 110 to the applicant’s circumstances.  Direction 110 was made pursuant to s 499(1) of the Act and was binding on the Tribunal at the time of its decision by virtue of s 499(2A): LRMM v Minister for Immigration and Multicultural Affairs [2025] FCA 51 at [9] (Collier J); Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 934 at [12] (Jackson J).

Direction 110

63 Paragraph 5.2 of Direction 110 sets out the principles “within which decision-makers should approach their task …”:

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The safety of the Australian Community is the highest priority of the Australian Government.

(3)    Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.

(5)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6)    With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7)    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8)    The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

(square brackets provided)

64 Paragraph 6 of Direction 110 states that: “[i]nformed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision”.

65 Paragraph 7 of Direction 110 provides guidance on how a decision-maker is to approach the task of taking account of those considerations in paragraphs 8 and 9:

(1)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2)    The primary consideration at 8.1 … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3)    One or more primary considerations may outweigh other primary considerations.

66 As I have noted above, paragraph 8 of Direction 110 sets out the primary considerations and paragraph 9 a non-exhaustive list of other considerations that are to be taken into account, where relevant, in making a decision under s 501(2) of the Act.

The grounds of review

Ground 1 – The Tribunal failed to comply with Direction 110 by applying an incorrect standard as to risk of reoffending

Parties’ submissions and consideration

67 The particulars to the applicant’s first ground refer to the Tribunal’s finding: R [143] that “… low risk does not mean no risk” in relation to the applicant’s risk of reoffending.  The applicant submits that in coming to its conclusion as to risk, the Tribunal misconstrued paragraph 8.1.2(2)(b) of Direction 110 by imposing a requirement that the applicant demonstrate no risk of re-offending.

68 The applicant submits that as a matter of law, the Tribunal’s assertion as to no risk is incorrect as a matter of law.  The applicant refers to CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [71] (Moshinsky, O’Bryan and Cheeseman JJ).  In that matter, the Full Court observed at [71]:

In his reasons for decision, the Minister did not define in any manner the degree of risk of reoffending that he believed that the appellant posed. Certainly, the Minister had no duty to evaluate the risk of reoffending in any particular way or to ascribe any particular characterisation to the quality of the risk: Brown v Minister for Immigration and Border Protection (2015) 235 FCR 88 at [41], subsequently cited in AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451 (AZAFQ) at [55]. Nevertheless, in assessing the reasonableness of the Minister’s finding, it is necessary to understand what the finding means. The Minister framed the consideration as whether the appellant poses “a risk” of reoffending (see at [72], [99]) and the Minister found that “there is an ongoing risk that [the appellant] would reoffend” (at [101]). Later, the Minister stated that he “could not rule out the possibility of further offending by [the appellant]” (at [109]). Although expressed in somewhat vague terms, the finding must be understood as a finding that the appellant posed a risk of reoffending that was greater, in a more than immaterial way, than the risk of the ordinary person residing in Australia committing the offence of murder or other similar offence. A conclusion that the appellant posed a risk of reoffending similar to other ordinary Australian residents could not rationally support a conclusion that the risk was unacceptable. Thus, it is necessary to consider the basis for the Minister’s finding that the appellant posed a risk of reoffending, by committing the most serious crime of murder or some similar offence, which was greater than the “risk” of any ordinary person committing such a serious offence.

69 The Minister submits that the applicant’s first ground is misconceived for at least three reasons.

70 First, paragraphs 8.1(2)(b) and 8.1.2(2) of Direction 110 require the Tribunal to assess the applicant’s risk of reoffending and in doing so, the Tribunal had no obligation to ascribe a particular level of risk and in any event did not impose any particular standard; it merely identified a logical distinction between a low risk and no risk in the context of the requirements of Direction 110 and made a factual finding in accordance with the independent expert evidence before it.

71 Whereas I accept the Tribunal had no obligation to ascribe a particular level of risk, nonetheless that is precisely what it did and for the reasons which follow, adopted an absolute standard of zero risk.

72 Second, there was direct evidence from Ms Oliver that there was a low risk the applicant would re-offend in a similar manner, and at no time did she qualify that opinion to suggest that he posed the same risk of reoffending as any other member of the Australian community.  As such, CLK21 provides no assistance to the applicant because in that case there was no evidence before the decision-maker to support the conclusion that there was a risk that the applicant would reoffend.

73 The applicant submits that the threshold for whether there is a risk that a non-citizen might reoffend for the purposes of paragraph 8.1.2(2)(b) of Direction 110 ought to be understood as the point at which the non-citizen poses a risk of reoffending that was greater, in a more than immaterial way, than the risk of the ordinary person residing in Australia committing the offence.  The applicant contends that the Tribunal’s conclusion that there was “not … no risk” of him reoffending was incorrect as a matter of law as it does not logically establish the existence of the requisite level of risk.

74 I accept the applicant’s submission.

75 Whereas Ms Oliver did not qualify her opinion to suggest that the applicant posed the same risk of re-offending as any other member of the Australian community, however in considering “low risk does not mean no risk” the Tribunal Member adopted a benchmark – zero risk – the exceeding of which was unacceptable.

76 With respect, the Minister’s submission sets up a straw man.  The task is to consider as part of the evaluative exercise the fact of the risk of re-offending so as to take that risk into account.  Hence the words in primary consideration (1) at 8.1.2(2) that the decision maker 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 re-offending; 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.

77 The applicant also submits that the Tribunal’s conclusion was incorrect as a matter of evidence because it did not engage with the evidence of Ms Oliver that there is a low risk of the applicant re-offending.

78 I accept that submission.  The Tribunal made express reference to Ms Oliver’s opinion on the level of risk but by adopting a zero risk benchmark did not engage with it.  In that sense, the Tribunal did not engage in an evaluative process as required by Direction 110.

79 Third, the Minister submits the applicant’s reliance on the evidence of Ms Rigby as to the risk of recidivism is wrong.  The Minister contends this is broadly because Ms Rigby did not have the relevant expertise to give the opinion she did as to the applicant’s risk of recidivism and that her evidence as to risk was rejected in favour of the evidence of Ms Oliver: R [54], [71] and [81].

80 Whereas it is correct that the Tribunal preferred the evidence of Ms Oliver, nonetheless, Ms Rigby’s opinion was that there was an extremely low risk of recidivism.  In giving that opinion, Ms Rigby qualified her evidence by reference to the material she had available to her.

81 The Minister continues that in any event the Tribunal’s task was to make its assessment of the applicant’s risk of re-offending and was not obliged to accept the evidence of Ms Rigby.

82 I accept the Minister’s submission that the Tribunal was not obliged to accept the evidence of Ms Rigby.  However, Ms Rigby’s evidence that a psychologist, as a matter of professional practice, would not report that there is no risk of an individual re-engaging in anti-social or criminal conduct is important.

83 By considering that “low risk does not mean no risk”, the Tribunal was adopting a position which was not only accepting a standard that no psychologist would adopt, as I have noted above, it adopted an approach which entailed zero risk, which resulted in no evaluation of that risk.  To that extent, the Tribunal did not engage in an evaluative exercise at all on this point.

84 The applicant has made out ground one.

Ground 2 – The Tribunal failed to comply with Direction 110 by giving undue weight to the applicant’s alcohol use in considering the risk of the applicant reoffending

Parties’ submissions and consideration

85 The applicant advances the second ground of appeal in the alternative.

86 The applicant alleges that whereas it was open to the Tribunal to have regard to the applicant’s alcohol use, it was neither rational nor probative for the Tribunal to consider alcohol use as the only factor supporting its conclusion that “low risk did not mean no risk”.

87 The core of the applicant’s contentions under the second ground is that only evidence relating to his alcohol use was relied upon by the Tribunal in support of its conclusion that there was a risk of him reoffending.  Counsel for the applicant explained that the Tribunal relied on three subfactors, all of which essentially amount to alcohol use alone as the basis for its conclusion as to risk:

(1) The applicant’s alcohol use had increased prior to detention after a period of reduction in consumption;

(2) The applicant has not undertaken any counselling to address or manage his alcohol use; and

(3) Ms Oliver had recommended that the applicant seek treatment for his alcohol use to prevent relapse – which he had not: R [142].

88 When put against the protective factors accepted by the Tribunal: R [81] and its finding: R [72] that the applicant’s ongoing alcohol use alone did not increase his risk of reoffending, the applicant submits that the Tribunal placed “undue weight” on the evidence relating to his alcohol use, making its conclusion as to the risk of the applicant re-offending irrational or unreasonable.

89 The Minister submits that demonstrating legal unreasonableness because of illogicality or irrationality to amount to jurisdictional error is not easily made: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [33]-[35] (Allsop CJ, Besanko and O’Callaghan JJ).

90 I accept the Minister’s submission in relation to the threshold for legal unreasonableness.

91 The Minister submits further that there was a rational and logical basis for the Tribunal’s findings at R [72].  Those findings being the sub-factors referred to by the applicant in addition to the finding that alcohol use was an attendant factor at the time of the subject offending.

92 The Minister refers to the accepted evidence of Ms Oliver that the applicant presented as being at a low risk of future offending of a similar kind: R [50], and that the risk factors influencing the likelihood of the applicant reoffending included alcohol use: R [51].  The Minister also directs attention to the fact that the Tribunal’s identification of the applicant’s risk factors was consistent with the applicant’s own observations regarding his alcohol use at the time of the subject offending: R [57], and that Ms Oliver’s evidence that she did not consider alcohol to be a current risk factor for the applicant related to the applicant’s risk of alcohol dependency or alcohol use disorder and not the applicant’s likelihood of recidivism.

93 The result being that according to the Minister, the acceptance of Ms Oliver’s opinion: R [64] did not eliminate the possibility that the applicant’s alcohol consumption might be a contributing factor to his risk of reoffending, even if that risk falls short of alcohol dependency or alcohol use disorder.

94 The Minister submits further that it was within the context of the evidence including that the applicant displayed signs of alcohol dependency at the time of the subject offending and that his offending took place under the influence of alcohol, that Ms Oliver stated the applicant “requires ongoing intervention with a psychologist who is suitably experienced in conditions of addiction, dependence and social difficulties to assist him with formulation of strategies to prevent alcohol relapse and monitor for any changes in current risk classification”.

95 The Minister submits further that, putting the clinical assessment of Ms Oliver aside, there was no evidence before the Tribunal that the applicant had engaged in any ongoing psychological treatment.  I understand that to mean after the ongoing psychological treatment with Ms Rigby as part of his sentence concluded.

96 Still further, the Minister submits that the applicant misunderstood the Tribunal’s conclusions in contending that the Tribunal had a “lack of evidence establishing a causal connection between alcohol consumption and the offending or risk of reoffending”.  The Minister submits that properly understood, the Tribunal made no finding that alcohol was causative of the subject offending but rather the two co-existed and had a relationship, which was supported by the expert evidence.

97 Lastly, the Minister submits that the Tribunal had expert evidence before it that alcohol consumption and the viewing of child exploitation material “share common mechanisms involving the brain’s reward system” and that “[e]ngaging in one dopamine-seeking behaviour may lower inhibitions and increase the likelihood of participating in other high-risk activities, especially in individuals predisposed to addictive behaviours”.

98 It is for these reasons that the Minister contends that the appropriate conclusion is that evidence of the subject offending having taken place in the context of excessive alcohol use was relevant and was a legitimate basis for the Tribunal’s evaluation of the applicant’s risk of reoffending.

99 The difficulty with the Minister’s submission is that it proceeds on the basis that the Tribunal’s evaluation was without error.

100 Whereas the Tribunal accepted ongoing alcohol use alone does not increase the applicant’s risk of recidivism: R [72], nonetheless, the Tribunal did not balance that factor against the other protective factors that now exist in the sense that the Tribunal referred to the protective factors but adopted a zero tolerance standard: R [81].

101 In any event, since the applicant advanced this ground in the alternative, in view of my conclusion on ground 1, I do not need to determine this ground.

Ground 3 – The Tribunal failed to evaluate and balance the considerations under Direction 110

Parties’ submissions and consideration

102 The particulars to the applicant’s third ground rely on CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 and assert that the Tribunal failed to undertake its statutory task by bringing together the Direction 110 considerations as part of a single evaluation of their relative significance.

103 The applicant contends that the Tribunal’s conclusion to cancel the applicant’s visa does not flow naturally from the Tribunal’s reasons.  That is, it considered each of the Direction 110 considerations in isolation, ascribed them separate weightings, and then expressed its conclusion without demonstrating whether or how it balanced the considerations against one another.

104 The Minister distinguishes CRNL from the present case for two reasons.  First, CRNL concerned s 501CA(4) of the Act and a statutory context that did not have an equivalent to paragraph 7(2) of Direction 110.  Second, that case did not concern the broad discretion in s 501(2) of the Act, citing Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; (2022) 295 FCR 315 in support.

105 The Minister submits that the Tribunal’s reasons were not formulaic as was found in CRNL but rather demonstrated a careful evaluation of the competing considerations within the Direction 110 framework, which ascribes more weight to the primary considerations of which the majority were against the applicant (with the exception of his ties to Australia) on the question of whether to cancel his visa.

106 I accept that the Tribunal adopted that approach but in doing so, it adopted an erroneous approach to the assessment of risk of recidivism and an undue weighing of evidence as to alcohol use as against other protective risk factors.  Further, insofar as the risk of recidivism is concerned, the Tribunal did not engage in an evaluative process.  To that extent, it did not carry out the required task under Direction 110.

107 The error made by the Tribunal in ground one infected the evaluation process so that the applicant has made out ground three.

Materiality

108 The applicant submits that the error identified both individually and cumulatively were material to the Tribunal’s ultimate decision to cancel the applicant’s visa.  In oral submissions, the Minister accepted that if the Court finds jurisdictional error on the part of the Tribunal in relation to one of the review grounds, it is material.

109 There is no doubt that the errors identified in the Tribunal’s reasons are material in the sense that the decision made could realistically, in the sense that the possibility of a different outcome is not fanciful or improbable, have been different had there been no error.

Conclusion

110 It is for these reasons that the application is allowed.

111 There will be orders quashing the Tribunal’s decision and remitting the matter to the Tribunal, differently constituted, for determination according to law.

112 There is no reason why the Minister should not pay the applicant’s costs and there will be an order accordingly.

Associate:

Dated:    15 May 2026