Federal Court of Australia

YBFZ v Minister for Immigration and Citizenship [2026] FCA 624

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs of the application on a lump sum basis to be agreed or assessed by a Registrar of the Court.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    By his application for an extension of time filed on 4 September 2025, and his amended draft originating application filed on 23 March 2026, the applicant seeks an extension of time in which to seek judicial review of a decision of the Administrative Review Tribunal (Tribunal) made on 15 May 2025.

2    The Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa (Tribunal Decision). The Tribunal found that the applicant was a person who, “having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community” within the meaning of s 36(1C)(b) and s 36(2C)(b)(ii) of the Migration Act 1958 (Cth) (Act).

3    The Minister does not oppose the grant of an extension of time in this case. However, the Minister submits that each of the grounds of review in the amended draft originating application should be rejected and that the application should be dismissed.

4    In these reasons, the appeal book will be referred to as AB.

Background

5    The applicant is a former citizen of Eritrea who is now stateless: AB29. He arrived in Australia on 7 February 2002 on a Refugee (Subclass 200) visa: AB35.

6    The applicant has an extensive criminal record in Australia: AB396-400. His criminal record as an adult dates back to October 2006, when he was convicted of maliciously wounding and maliciously inflicting grievous bodily harm and sentenced to concurrent periods of imprisonment of two and a half years with a non-parole period of one year and 11 months; and three years with a non-parole period of two years respectively: AB399-400, Tribunal Decision (TD) at [7]. In the 12-year period between October 2006 and December 2018, the applicant was convicted of approximately 130 additional offences: TD at [8].

7    In September 2017, the applicant was convicted of burglary and recklessly causing injury and sentenced to a period of imprisonment of 18 months: AB397.

8    On 6 December 2017, a delegate of the Minister cancelled the applicant’s Refugee (Subclass 200) visa under s 501(3A) of the Act: TD at [9].

9    On 12 April 2018, the applicant was released from criminal custody and taken into immigration detention: see AB1574 at [14]. The applicant remained in immigration detention until 25 November 2023, when he was released following the High Court’s decision in NZYQ v Minister for Immigration and Citizenship (2023) 280 CLR 137; [2023] HCA 37.

10    On 5 December 2019, the applicant applied for a protection visa (Subclass 866): AB493.

11    On 8 July 2020, a delegate of the Minister refused the applicant’s application for a protection visa on the basis that the applicant did not satisfy the criterion in s 36(1C)(b) of the Act: AB493-523.

12    On 29 July 2020, the applicant applied to the then Administrative Appeals Tribunal for review of the delegate’s decision: AB6-13.

13    Among the documents that the applicant provided to the Tribunal in support of his application for review was a report of a consultant psychiatrist, Professor Suresh Sundram, dated 8 January 2025 (Sundram Report): AB1678-1683.

14    On 3 and 4 March 2025, the Tribunal conducted a hearing. A transcript of the hearing is at Annexure ACX-1 to the affidavit of Adam Cunynghame affirmed 2 April 2026.

15    On 15 May 2025, the Tribunal decided to affirm the delegate’s decision: AB1720-1762.

Ground one – Reliance on unproven conduct

16    By his first ground, the applicant contends that the Tribunal fell into jurisdictional error by receiving and having regard to evidence of alleged criminal conduct that was the subject of pending charges at the time of the Tribunal’s decision; that is, the charges had not resulted in findings of guilt or convictions.

17    To understand this ground, it is necessary to identify the relevant evidence and procedural history before considering the Tribunal Decision.

Procedural history and evidence – unproven criminal conduct

18    The Sundram Report referred to “recent” “impulsive and opportunistic” offending: TD at [11.4]. The applicant’s pre-hearing written reply submissions adverted to this issue and enumerated the pending charges against the applicant, including a drug possession offence, a weapons offence (possessing a “dangerous article”) and various theft/property related offences. The submissions contended: “unless these matters resolve or are proven, the alleged conduct is of little or no relevance to the Tribunal … even if these allegations are proven they are not illustrative of reoffending which would result in the Applicant being a ‘danger’ to the Australian community”: AB1673-1674 at [18]-[21].

19    At the commencement of the hearing, the Tribunal asked the applicant’s representative whether he had any submissions on the pending charges. The applicant’s representative submitted that whilst they had “some relevance to the tribunal’s consideration” these needed to be “treated with great care”, “given that the current position of the criminal proceedings are that that is contested and the lack of cogent evidence in relation to that before the tribunal”: at [T4.35]-[T5.5]. The Tribunal noted that the fact the charges were “unresolved” was “a fundamental issue”: at [T5.11]. The Minister submits this was consistent with the way the applicant had said the Tribunal could consider and deal with the pending charges. The Tribunal asked the Minister whether he wished to be heard on the issue of the pending charges, to which the Minister said, “[n]ot at this time”: [T5.14].

20    At the hearing, the applicant was not cross-examined about the pending charges: cf [T16.7-15]. However, in examination in chief, Professor Sundram was asked about his reference to recent behaviour and testified that the applicant had told him about taking money from a person at an ATM and using a credit card found on the ground to purchase various goods: [T30.31-41]. In cross-examination, the Minister asked Professor Sundram to elaborate on this issue. Professor Sundram explained his memory was “relatively poor now” but essentially confirmed his account in examination in chief: [T36.37-44]. The Minister did not ask Professor Sundram about the other pending charges, including possessing a ‘dangerous article’. Nor did the Minister apply to recall the applicant for further cross-examination on any of the pending charges.

21    In closing submissions, the applicant’s representative attempted to neutralise the evidence of unproven criminal conduct by submitting that it was “unlike his previous offending” – because of the absence of violence and repetition – and that it had been followed by a grant of bail: [T51.1]-[T52.6], [T56.29-36].

22    In closing submissions, the Minister accepted that the applicant had not been cross-examined about unproven criminal conduct and acknowledged “the implications which flow from that submission”: [T58.38-39]. This submission appears primarily to have been directed to aspects of the applicant’s criminal history where charges were withdrawn, rather than the pending charges.

23    The Minister “emphasise[d]” some of the pending charges, “such as possessing a dangerous article, and also robbing somebody”: [T59.10-13]. The Minister submitted that “it is of concern that the applicant has been charged with multiple offences, has been subject to remand since being released from immigration detention”: [T63.13-15]. The Minister accepted that “the Tribunal cannot take into account those charges with respect to any offending conduct”: [T63.20-21]. However, the Minister submitted: “The existence of the charges … do[es] not bode well for the applicant in terms of the applicant’s likely ability to refrain from offending”: [T63.21-23]. The Minister submitted to the Tribunal at [T63.23-25]:

Whilst the charges are contested, and the applicant has pled not guilty to them as I understand it, the tribunal can take note of the evidence given during the course of this hearing. Including that of Professor Sundram, who recalled the applicant admitted to him in response to questioning about the applicant’s behaviour since release, that he had stolen cash from a person at an ATM, and used a credit card which was not his, having found it on the ground.

24    The applicant’s representative did not make any oral submissions in reply on this issue.

The Tribunal’s reasoning

25    The Tribunal addressed the question of whether the applicant is a danger to the Australian community at paragraphs [96]-[133] of the Tribunal Decision. In doing so, the Tribunal dealt with each of the four matters identified in WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434; [2009] AATA 512 at [26] (Tamberlin DP), being:

(1)    the seriousness and nature of the crimes committed, the length of the imposed, and any mitigating or aggravating circumstances;

(2)    the criminal record in totality – including the extent and nature of any prior convictions and the period over which they took place;

(3)    the risk of re-offending and recidivism and the likelihood of re-lapsing into crime; and

(4)    any prospects of rehabilitation

26    In dealing with the first, second and fourth of the matters identified in WKCG, the Tribunal made no reference to the recent charges against the applicant. The Tribunal dealt with the third matter in detail at TD [107] to [120], before addressing the recent charges against the applicant at TD [121] to [126].

27    The Tribunal recounted the charges, emphasising their recency, how soon they followed the applicant’s release from immigration detention, and the number of charges: TD at [121]. The Tribunal also summarised Professor Sundram’s evidence in respect of this issue at TD [125]. The Tribunal then outlined its “approach to these new charges” at TD [126], where the Tribunal said:

My approach to these new charges will be as follows: (1) I will not take these new charges into account for the present purpose of assessing whether this Applicant is a danger to the Australian community; (2) I will observe that the proffering of these [charges] after the Applicant’s NZYQ release does not bode well for his prospects of abstaining from further offending more generally; and (3) more specifically, the proffering of these charges — in circumstances where the Applicant acknowledged (to Professor Sundram) commission of the specific conduct alleged in the four new offences relating to dishonesty with a credit card — very seriously undermines any suggestion of him being free from offending since his NZYQ return to the community in November 2023.

28    The Tribunal at TD [128] to [133] addressed “some residual issues”. One of those issues was a contention that “the existence of a CTO comprised some sort of protective shield against the applicant’s commission of further offences in the community”: TD at [129]. The Tribunal rejected that argument and said: “[t]he misconceived nature of this submission can be seen in the reality this applicant has been charged with offences while subject to a CTO”: TD at [129].

Alleged jurisdictional error

29    The applicant submits there are three ways in which the Tribunal fell into jurisdictional error.

30    First, it was a denial of procedural fairness for the Tribunal to take into account the unproven criminal conduct on the question of ‘danger’ in circumstances where:

(a)    the Tribunal at the commencement of the hearing observed that it was fundamental that the charges had not been resolved;

(b)    the Minister did not cavil with that observation nor seek to make submissions at the commencement of the hearing on this issue;

(c)    the Minister did not cross-examine the applicant on the unproven criminal conduct (nor did the Tribunal ask the applicant questions on this issue);

(d)    the Minister asked Professor Sundram very limited questions on this issue (and the Tribunal asked none);

(e)    in any event, the applicant would only have been able to substantively respond to questions and submissions about the unproven criminal conduct by waiving his privilege against self-incrimination;

(f)    the Minister in closing submissions accepted the Tribunal cannot take into account those charges with respect to any offending conduct; and

(g)    the Tribunal did not seek further clarification from the parties about how it was put that the uncharged criminal conduct could, or could not, be taken into account.

31    Second, the applicant submits that the Tribunal’s reasoning was illogical, irrational or unreasonable for being internally inconsistent or contradictory. While not all internal inconsistencies will amount to jurisdictional error, the applicant submits that here the reasoning went to an important issue.

32    Third, the applicant submits the pending charges about which the applicant had not given evidence (in particular, the ‘dangerous article’ offence), were irrelevant considerations. At the hearing of the application, the applicant’s counsel, Dr Julian Murphy, informed me that the applicant no longer pressed this aspect of ground one, (being particular (vii) in the draft notice originating application).

33    The applicant submits that, however the error is characterised, the error was material. If the Tribunal had not made the error there is a realistic possibility that it would have assessed the applicant’s recent rehabilitation more favourably and concluded that he did not now pose a “danger”.

Consideration

Procedural Fairness

34    The Tribunal was required to afford procedural fairness to the applicant. This required that the applicant be made aware of, and have the opportunity to address, any adverse information that was credible, relevant and significant to the decision to be made: Applicant VEAL/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; [2005] HCA 72 at [15] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ); Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174 at [38] (Flick, Griffiths and Derrington JJ).

35    In the present case, the applicant put evidence of the recent charges before the Tribunal through the Sundram Report, the applicant’s written submissions, and the examination in chief of Professor Sundram. In cross-examination, the applicant was asked about recent charges against him but was not able to remember them. The applicant’s representative addressed the use that could be made of the evidence about the recent charges in written submissions, opening submissions, and closing submissions. At no point was it said that the Tribunal could not take the evidence into account. Indeed, in closing submissions, the applicant’s representative said at transcript [51.10-13]: “You heard evidence from Professor Sundram about an account of [the recent charges] and can draw conclusions from those, at least in relation to the conduct which Professor Sundram expressly spoke about”.

36    The applicant’s representative instead emphasised the need to treat the evidence with caution, and submitted that the recent charges were not of the kind of offending that would result in the applicant being a danger to the Australian community. The applicant’s representative also had an opportunity to reply to the Minister’s closing submissions and took no objection to the use which the Minister submitted could be made of the evidence about the recent charges.

37    In particular, the use that the Tribunal made of the evidence about the recent charges did not go beyond what the Minister and the applicant submitted could occur. The Tribunal took into account the evidence of Professor Sundram as showing that the applicant had not been free from offending since his release from immigration detention but did not take the recent charges into account as demonstrating that the applicant was a danger to the Australian community.

38    In the circumstances of the present case, where the substance of the adverse material was made known to the applicant and, indeed, was put before the Tribunal by the applicant, and the applicant’s representative addressed it, in my view, it cannot be said that there was a denial of procedural fairness.

Irrational, illogical or unreasonable

39    The Tribunal may fall into jurisdictional error if it reasons in a way that is irrational, illogical or unreasonable. However, this is a stringent test: Australian Epic Health Services Pty Ltd v NDIA [2025] FCA 449 at [55] (Hill J), and the cases cited there, see also CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [59]-[60] (McKerracher, Griffiths and Rangiah JJ). Even where there is an inconsistency in a decision-maker’s reasons, this does not necessarily demonstrate that the decision-maker’s reasoning was illogical, irrational or unreasonable so as to give rise to jurisdictional error: Epic [2025] FCA 449 at [59]-[61] (Hill J), and the cases cited there.

40    The applicant submits that the Tribunal’s reasoning in relation to the recent charges was “internally inconsistent or contradictory”. I disagree. Properly understood, the Tribunal’s reasoning in relation to those charges was not inconsistent or contradictory. The applicant’s representative accepted that the Tribunal could take into account Professor Sundram’s evidence about the recent charges: [T51.10-13], but submitted that the allegations against the applicant were not “illustrative of re-offending which would result in the applicant being a ‘danger’ to the Australian community”: AB1674 at [20] (Applicant’s submissions in reply) and [T52.30-38].

41    The Tribunal’s reasoning reflects the distinction drawn by the applicant’s representative – it did not take into account the recent charges as showing that the applicant was a danger to the Australian community, but did take them into account, as undermining any suggestion that the applicant had been entirely free from offending since his release from immigration detention. The Tribunal’s approach to the new charges was stated at TD [126] as follows:

(1)    “I will not take these new charges into account for the present purpose of assessing whether this applicant is a danger to the Australian community”;

(2)    “I will observe that the proffering of these charges after the applicant’s NZYQ release does not bode well for his prospects of abstaining from further offending more generally”; and

(3)    “More specifically, the proffering of these charges – in circumstances where the applicant acknowledged (to Professor Sundram) commission of the specific conduct alleged in the four new offences relating to dishonesty with a credit card – very seriously undermines any suggestion of him being free from offending since his NZYQ return to the community in November 2023”.

42    There was nothing inconsistent or contradictory in the Tribunal’s approach.

43    The applicant also submits that when s 36(1C) is understood against the background of the common law presumption of innocence, it should be concluded that the mere fact of a charge provides no logical, rational or reasonable foundation for reasoning towards a conclusion that a person poses a ‘danger to the Australian community’. While that might not be the case in all exercises under the Act (Minister for Immigration and Citizenship v XMBQ [2026] FCAFC 19, [127] (Kennett J, Bromwich J agreeing), the applicant submits it must be so under s 36(1C) where the threshold to that provision’s application requires final proof in curial proceedings (‘convicted by a final judgment’) not a mere allegation by charge. The applicant also submits that all the Tribunal had before it was the fact of the charge and its description. There was no police summary nor any account from the applicant. The applicant contends that because the unproven charges were accompanied by no other information, it was unreasonable to rely on it: Dalla v Minister for Immigration and Border Protection (2016) 70 AAR 141; [2016] FCA 998 at [28]-[29] (Logan J).

44    For the same reasons as I have stated at [42] above, there was no illogicality in the manner in which the Tribunal considered the charges in the context of its determination of whether the applicant was a “danger to the Australian community”. The Tribunal was keenly aware that there was no conviction by a final judgment in relation to the pending charges and clearly stated the permissible use of the evidence before it.

45    There was no error in the reasoning of the Tribunal. The reasoning process of the Tribunal was not irrational, illogical, or unreasonable.

46    For the reasons given, ground of review one must be rejected.

Ground two – mental health and mitigation

47    By ground two, the applicant alleges that the Tribunal erred jurisdictionally by finding and/or reasoning that there was a “virtual absence of any mitigating circumstance(s)”: TD at [103]. The applicant alleges that that finding was based on no evidence or was otherwise illogical, irrational or unreasonable.

48    In DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550; [2023] FCAFC 84, Rares J said at [13]:

In Re WKCG and Minister for Immigration & Citizenship (2009) 110 ALD 434 at 438–439 [25]–[31], the Hon Brian Tamberlin QC DP considered the elements of Art 33(2) that subsequently came to be reflected in s 36(1C)(b). He found (at 438 [25])) that the question whether a person “is a danger to the Australian community” was one of fact and degree that had to be approached by having regard to all of the circumstances of each individual case. Tamberlin QC DP identified, non-exhaustively, some relevant considerations as including (at 438 [26]–[27]):

the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism …

(emphasis in original).

49    Thomas and Snaden JJ also said at [117] in DMQ20, citing WKCG:

First, it is likely not possible — and much less is it advisable to attempt — precisely to define what does and does not constitute “danger” for the purposes of s 36(1C)(b) of the Act. It is a concept without technical meaning that falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given matter …

50    The applicant submits that in the present case, it was uncontroversial that much, if not all, of the applicant’s offending was committed in circumstances where he was suffering from grave mental health issues, including chronic schizophrenia. Evidence of that was in material before the Tribunal, much of which was referred to by Professor Sundram in the Sundram Report. The applicant relies upon the observations of the County Court judge sentencing the applicant in September 2017 who found: “I am equally satisfied that it is probable that the presence of that mental illness is responsible, not only for your offending on this occasion, but most probably to some extent, for your history of prior offending”: AB 417 at [6]. The sentencing judge went on to find that each of the six principles identified in R v Verdins (2007) 16 VR 269 [2007] VSCA 102 at [32] (Maxwell P, Buchanan and Vincent JJA) as to the relevance of impaired mental functioning (whether temporary or permanent) to sentencing, had application: AB 417 at [7]. Those principles relevantly include that mental illness can “reduce the moral culpability of the offending conduct”.

51    The applicant submits that the Tribunal accepted the expert evidence as to the applicant’s mental health issues. However, the Tribunal appeared to consider that the applicant bore some moral blame for his schizophrenia, at least insofar as he had used up “inordinate amounts” of “healthcare resources” but had, at times, desisted from treatment and medication and returned to drug use and offending: TD at [102]. The applicant submits that this reasoning by the Tribunal was at the invitation of the Minister: AB 1476, [36].

52    The applicant submits that it was on that basis that the Tribunal rejected the applicant’s contention that his mental health was a relevant mitigating circumstance and concluded that there were no “genuine mitigating circumstance(s)” other than “[p]erhaps his pleas of guilty to a number of charges”: TD at [101]-[103].

53    The applicant submits that the conclusion that there were no mitigating circumstances connected to the applicant’s mental health was unsupported by even a “skerrick of evidence”, and was inconsistent with the finding of the County Court sentencing judge.

54    Alternatively, the applicant submits that the finding was unreasonable, illogical or irrational: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [91] (Gageler J as he then was). The applicant submits that the fact that he may have, at times, refused treatment might moderate the extent to which this consideration could be a mitigating circumstance, but that would have required analysis of the degree to which the applicant’s mental health issues predisposed him to resisting treatment. None of that analysis is present in the Tribunal’s reasons. Rather, what occurred in the applicant’s submission was the categorical rejection of any mitigation on the basis of reasoning that could not rationally support that conclusion.

55    The applicant submits that on either formulation, the jurisdictional error was material. If addressed as a “no evidence” ground, then had the Tribunal not made the error, there is a realistic possibility that the Tribunal would have assessed the applicant’s mental health as a genuine mitigating circumstance.

56    Alternatively, rejecting the applicant’s mental health issues was a finding that was unreasonable, illogical or irrational. The question is whether that intermediate finding was “crucial” to the ultimate decision: EUD24 v Minister for Immigration and Citizenship (2025) 311 FCR 155; FCAFC [2025] 128 at [35]-[36] (Hill J, Cheeseman and Owens JJ agreeing at [1]). The applicant submits in this case, the finding was critical because it went to one of the four factors informing the ultimate determination of “danger” in WKCG.

Consideration

57    The first of the factors identified in WKCG as being relevant to whether the applicant is a danger to the Australian community is “the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances”.

58    The evidence before the Tribunal showed that the applicant had a history of significant mental health and substance abuse issues, and the Tribunal addressed that evidence (see generally from TD [44]-[86], and in particular the evidence of Professor Sundram at [67]-[86]) [ ], including evidence about the link between the applicant’s mental health issues and his offending: TD at [77].

59    The Tribunal Decision shows the Tribunal accepted the applicant’s mental health and substance abuse issues contributed to his offending: TD at [105], [113]. However, for the purposes of determining whether the applicant was a danger to the Australian community, the Tribunal did not accept that these were mitigating circumstances. The Tribunal said at TD [101]-[103]:

I am hard-pressed to identify any mitigating circumstance around his offending. Perhaps the only mitigating factor is the fact that he entered his own plea of guilty to a number of the charges proffered against him thus obviating the expense of a taxpayer funded prosecution.

I reject any contention put on behalf of the Applicant to the effect that his untreated schizophrenia and polysubstance abuse issues should now be viewed as factors mitigating the severity of his offending. Any contention along the lines that “the schizophrenia made me do it” or “the drugs made me do it” carries little or no weight for present purposes. The community (at not inconsiderable expense) has made available to him defined and clinically supported regimes of treatment which he viewed more in the breach than in the observance. He thus has no moral basis on which to explain away his culpability for his serious unlawful conduct impacting so many victims and which has also consumed such an inordinate amount of the community’s policing, judicial sentencing and healthcare resources.

I am satisfied that each of (1) the nature and seriousness of the Applicant’s unlawful conduct, (2) the sheer weight and length of sentences imposed on him and (3) the virtual absence of any genuine mitigating circumstance(s) around his offending now render him a danger to the Australian community.

60    Whilst the Tribunal accepted that the applicant’s mental health and substance abuse issues had contributed to his offending, it did not accept that they should “now be viewed” as factors that reduce his moral culpability for the offending “for present purposes”. That is, for the purpose of determining whether the applicant was a danger to the community, which involves a consideration of the future risks of harm presented by the applicant. The Tribunal reached that finding on the basis that the applicant had been afforded opportunities to address those issues, which he had failed to engage with over a considerable period of time. There is no error demonstrated in the reasoning of the Tribunal and its consideration of the applicant’s mental health for the purpose of determining whether the applicant was a danger to the community.

61    The applicant submits that, by finding there was a “virtual absence of any genuine mitigating circumstance(s)”, the Tribunal fell into jurisdictional error by making a finding for which there was no evidence, or reasoning in a way that was irrational, illogical or unreasonable. These submissions must be rejected for the following reasons.

No evidence

62    The “no evidence” ground will only be made out where there is “not a skerrick of evidence” in support of a finding: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 at [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ). The evidence in this case discloses that the applicant did little to engage with treatment of his mental health and substance abuse issues. The evidence showed that the applicant continued to consume drugs and alcohol (TD [49] and [53]), did not consent to treatment for his schizophrenia (TD [80]), and has limited insight into his mental health issues (TD [83]). It was not irrational or illogical for the Tribunal to find, in those circumstances, that for the purposes of determining whether the applicant was a danger to the community, the applicant’s substance abuse and mental health issues were not factors that reduced his moral culpability for his offending.

63    I reject the applicant’s submissions the Tribunal’s finding about moral culpability was not consistent with the sentencing remarks of the County Court judge. Like the County Court judge, the Tribunal accepted that the applicant’s mental health issues contributed to his offending. In determining the extent to which the applicant’s mental health reduced his moral culpability it must be recognised that the Tribunal was performing a different statutory task to the County Court judge.

64    In addition, it must be recognised that the Tribunal was performing its statutory task in 2025, not September 2017 when the County Court judge was sentencing the applicant. The Tribunal’s consideration was informed by evidence that the applicant had continued not to address his mental health and substance abuse issues in the eight intervening years. There was no error in the path of reasoning of the Tribunal in considering the lack of engagement by the applicant in treatment for his mental health and substance abuse issues.

Irrational, illogical or unreasonable

65    There was nothing irrational, illogical or unreasonable in the reasoning of the Tribunal as disclosed by the decision record. The findings of the Tribunal in relation to the applicant’s treatment for his mental health and substance abuse issues demonstrate no error on the part of the Tribunal in carrying out its statutory task.

66    For the reasons given, ground two must be rejected.

Ground three – unacceptable risk

67    By this ground, the applicant alleges that the Tribunal erred jurisdictionally by reasoning as if the statutory task entailed consideration of whether the risk the appellant posed was “unacceptable” when the only relevant question was whether the applicant posed a “danger to the Australian community”.

68    The Tribunal’s statutory task was relevantly to determine whether the applicant posed a “danger to the Australian community” within the meaning of s 36(1C)(b) of the Act.

69    The applicant submits that the Tribunal, at key paragraphs of its decision record, directed itself to the wrong question of whether the applicant posed an “unacceptable” risk to the Australian community. In particular: the Tribunal:

(1)    reasoned that any risk of the applicant committing further offences was “unacceptable” and “would safely ground a finding that he continues to represent a danger to the community”: at TD [115];

(2)    referred to the “tragic outcomes resulting from impulsively committed crimes” and suggested that the applicant was at risk of committing further such crimes: TD [116];

(3)    concluded that the committing of any such crimes “should now be found to be unacceptable in terms of assessing the extent to which he represents a danger to the community”: TD [116];

(4)    adopted normative language about what the Australian community should have to “endure”. This, in the applicant’s submission, was equivalent to a statement about what the community should “tolerate”, which is reasoning appropriate for an “unacceptable risk” enquiry but not reasoning permitted by the “danger” enquiry: TD [135].

CONSIDERATION

70    The Full Court recently clarified the meaning of the word “danger” in s 36(1)(C)(b) of the Act. In DMQ20 at [106]-[120] Thomas and Snaden JJ stated that it is a word of ordinary English which is to be applied to all the facts and circumstances of the case and which is not susceptible to more precise definition: See also SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 299 FCR 148; [2023] FCAFC 104 at [62]-[68], [82]-[85] (Jackson J, Rares J agreeing at [1] and Snaden J agreeing at [92]).

71    The relevant circumstances will include the factors identified in WKCG, provided those factors are used as a guide and not a checklist: SLGS at [85]. In considering whether a person is a danger to the Australian community, a decision-maker may assess the likelihood of the person causing harm and the severity or seriousness of the consequences if harm occurs: DMQ20 at [113] (Thomas and Snaden JJ); SLGS at [82].

72    The Tribunal’s approach to determining whether the applicant was a danger to the Australian community was consistent with the approach identified by the Full Court in DMQ20 and SLGS. In doing so, the Tribunal correctly recognised that whether a person is a danger to the Australian community is a question of fact and degree, had regard to the factors identified in WKCG in making the determination and assessed both the probability of the applicant causing harm and the likely consequences of that harm if it occurred: TD at [30], [31], [97]. This is evident from the Tribunal’s conclusion at TD [134] which said:

I can reach no other finding than that there remains a significant level of risk of this applicant seriously (and even very seriously) and violently re-offending if returned to the Australian community. I am therefore of the view (and I find) that he remains a danger to the Australian community.

73    The Tribunal Decision, when read as a whole, demonstrates that the Tribunal applied the meaning of the word “danger” as that word was understood in DMQ20 and SLGS. The fact that the Tribunal twice used the word “unacceptable” to describe the risk presented by the applicant at [115]-[116] does not demonstrate that the Tribunal asked itself the wrong question. For the reasons given, it is apparent from the Tribunal Decision that the Tribunal applied the correct test when undertaking its statutory task.

Disposition

74    For the reasons given, the application for judicial review is dismissed. The applicant will pay the first respondent’s costs of the application on a lump sum basis to be agreed or assessed by a Registrar of the Court.

Associate:

Dated:    20 May 2026