Federal Court of Australia

FDB20 v Minister for Immigration and Citizenship [2026] FCA 786

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review be dismissed.

2.    The Applicant pay the First Respondent’s costs of the application for judicial review.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant is a citizen of Sri Lanka who arrived in Australia in March 2013, at the age of 17. On 22 April 2024, he was convicted of “import/export commercial quantity of border controlled precursor – conspiracy” and sentenced to a custodial term of imprisonment of five years and 10 months. At that time, the applicant held a Class WE Subclass 050 Bridging E visa (bridging visa). He had previously applied for a Subclass 790 Safe Haven Enterprise (Class XE) protection visa, but this was refused by a delegate of the Minister. Following his conviction, his bridging visa was the subject of mandatory cancellation pursuant to ss 501(3A) and 501(6)(a) of the Migration Act 1958 (Cth), as a consequence of failing the character test upon receipt of his sentence.

2    The applicant unsuccessfully made representations to the Department of Home Affairs seeking revocation of the cancellation, and in May 2025 the mandatory cancellation decision was affirmed by a decision of a delegate of the Minister for Immigration and Citizenship. The applicant then sought a review of the decision of the delegate. On 20 August 2025, a member of the Administrative Review Tribunal affirmed that decision, and on 28 August 2025 the Tribunal delivered reasons for its decision.

3    The applicant now seeks an order that the decision of the Tribunal be quashed, and a writ of mandamus issued, directing the Tribunal to determine the application according to law.

4    The application is based on the following grounds (particulars omitted):

(1)    The Tribunal failed to afford procedural fairness in that by purporting to find that the applicant suffered from a mental illness and that the onus of proof was on him to rebut that this purported mental illness meant that he posed an unacceptable risk to the community in the absence of evidence rebutting the risk.

(2)    The Tribunal misapplied Ministerial Direction 110, in that it unreasonably found that the applicant posed an unacceptable risk to the Australian community, by purporting to find that the applicant may commit further offences or engage in other serious conduct.

(3)    The Tribunal misunderstood and misapplied the evidence before it, in purporting to find at [47]–[52] that the applicant’s mental health difficulties were psychopathological in nature and predisposed the applicant to an unacceptable risk of reoffending, in the absence of rebutting evidence to the contrary.

(4)    The Tribunal failed to identify, explain, or put the applicant on notice as to what it meant by its finding and use of pseudo medico-legal terminology at [47]–[52] attributing to the applicant as presently suffering from psychopathological symptoms predisposing him to reoffend.

5    The applicant was represented by Justice Law Practice, solicitors. The respondent was represented by Ms R Francois of counsel. Both parties filed written submissions in advance of the hearing.

6    For the reasons set out below I dismiss the application.

2.    THE DECISION OF THE TRIBUNAL

7    The Tribunal noted that the applicant does not pass the character test. Accordingly, the Tribunal focussed attention on whether there was another reason why the mandatory cancellation of the applicant’s visa should be revoked. In this regard, it noted that it was bound by s 499(2A) of the Migration Act to comply with any directions made under that Act. It noted that “Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 110) has present application.

8    The Tribunal set out the principles found in paragraph 5.2 of Direction 110, the five “primary considerations” identified in paragraph 8 and the three “other considerations” identified in paragraph 9 of Direction 110, noting that primary considerations (2) (family violence) and (4) (best interests of minor children in Australia) and other consideration (c) (impact on Australian business interests) were not relevant to the present application.

9    In relation to primary consideration (1), the Tribunal noted that it must bear in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Australian Government is committed to protecting the community from harm as a result of criminal activity or other serious conduct by non-citizens. In determining the weight to be allocated to this consideration, the Tribunal noted that it is required to consider the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

10    The Tribunal considered the offence for which the applicant was convicted and found that it was “very serious” notwithstanding that it was his first and only offence. It considered the profound impact of illicit drugs on the Australian community and noted that the applicant knew that he was involved in the unlawful importation of a border controlled precursor – pseudoephedrine – which is used to manufacture methamphetamine.

11    In considering the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal was satisfied that the applicant’s involvement in the proliferation of illicit drugs has caused harm in the community and that if he engaged in further criminal or other serious conduct, the resulting harm to victims would “range from physical, psychological (including potentially catastrophic) harm together with materially quantifiable harm”. It was further satisfied that if the applicant offended in the same way again, there is a strong likelihood of the manifestation of similar consequences to those which have resulted from his offending to date. This led the Tribunal to conclude that the harm resulting from repeated offending “is so serious that any risk of such recommission should now be found to be unacceptable”.

12    The present grounds of review focus particularly on the next consideration taken into account by the Tribunal, which is “the likelihood of the non-citizen engaging in further criminal or other serious conduct”.

13    The Tribunal referred to “several elements which individually speak to the [a]pplicant’s current recidivist risk”, which taken collectively assisted it in arriving at a current risk assessment.

14    The first element was the oral evidence given by the applicant at the hearing.

15    The Tribunal summarised that evidence and found that it “gives a convincing air of remorsefulness for what he has done” and amounted to a realisation on the part of the applicant of the importance of finding suitable employment and commencing a personal relationship with a compatible partner. It addressed the motivation and circumstances of his criminal conduct, noting the applicant’s evidence that prior to his offending he had regularly sent money back to Sri Lanka to support his mother and that he committed the crime when he needed to raise funds for the cost of his mother’s essential neurological surgery.

16    The Tribunal noted that the applicant spoke of previously associating with “negative peers” and that his decision to become involved in criminal conduct (at [33]):

… was spontaneous and the subject of ready acceptance and prompt performance. In so engaging with his past criminality, the Applicant says he did not enquire into how much he would receive for his role in the scheme nor did he seek a detailed explanation of any task or tasks he would be required to perform. He spoke of no longer associating with those negative peers and of otherwise being motivated to find employment of otherwise being a good person.

17    The Tribunal considered that the applicant’s spontaneous decision to become involved in the crime is such that “he seems to be only one conversation away from again involving himself in very serious offending involving the trafficking of a precursor” and, while he spoke of disassociating himself from negative peers, the applicant could not point to any specific people with whom he could now associate who could provide him with positive influence and responsible guidance.

18    The Tribunal then said at [35]:

In terms of engagement with any form of clinical intervention as a means of identifying any past predispositive factors behind his offending and any extent to which those symptoms could be treated, the Applicant’s oral evidence went little higher than him reporting a recent review by a counsellor. He spoke of claimed symptoms of anxiety and stress but could not articulate any extent to which those claimed elements predisposed him to offend in the past nor how they might orientate any future predisposition to offend.

19    The Tribunal then addressed the second element, being the remarks of the sentencing Judge, who noted that the applicant occupied a relatively low level in any hierarchy in his criminal conduct and that his offending was “comfortably below the notional mid-range, although not towards the low range of objective seriousness”.

20    The Tribunal said at [37]:

In terms of the Applicant’s claimed reason for becoming involved in the scheme, the learned sentencing Judge noted: “[The Applicant] claimed in his history to the psychologist that he engaged in the offending because he needed money to assist his mother who lives in Sri Lanka and needed neurological surgery. The Crown contested this part of the history which was not supported by evidence on oath from [the Applicant] or any independent source.” While accepting this story about the mother provided some context to the offending, the learned sentencing Judge found it was not something that mitigated the offending. Rather, the learned sentencing [judge] thought: “I am of the view that the [Applicant’s] background is such that it reduces his moral culpability to a material degree by rendering him more susceptible to making bad decisions, such as his choice to be involved in this offence.”

(Footnotes omitted)

21    The Tribunal noted that the sentencing judge considered that the applicant had “reasonable prospects of rehabilitation” and was a “relatively low risk of reoffending”.

22    The Tribunal then addressed a third element, being various reports produced by Corrective Services NSW, including a “Risk Mitigation Plan” for the applicant which was incorporated into a Pre-Release Report, the latter of which assessed the applicant at a low risk of reoffending.

23    After considering these matters, the findings and assessment of risk by the Tribunal are set out at [43]–[49]. They form a central feature of the grounds pleaded in the present application for review and so are set out in full below:

Findings about recidivist risk

[43]    The recurring elements around any present assessment of the Applicant's recidivist risk seem to revolve around (1) his past negative peer associations; (2) an apparent need for financial gain to support his family abroad, principally his mother, and (3) a susceptibility to being easily led, influenced and ultimately coerced into serious criminality. With reference to item (1), the Applicant has been in the closed confines of either prison or immigration detention for the best part of half a decade. This means there has been little or no prospect of him engaging with negative peers or being coerced into a pattern of criminality during this period away from the community.

[44]    With reference to item (2) in the immediately preceding paragraph, the Applicant's claim about a financial need to support his family overseas and, more particularly, his apparently unwell mother, is his story and his alone. There is little no other corroboration for any requirement to contribute towards medical costs for his mother or, more generally, any straightened financial circumstances in which his family overseas may find themselves. Similarly, with reference to item (3) in the immediately preceding paragraph, his evidence about initial engagement with negative peers was solely reported (by him) and uncorroborated. He spoke of his involvement in the index offending having been " .... influenced by an acquaintance introduced to him by a friend, to aid him in procuring extra funds." This "friend'' was never produced to corroborate the claimed introduction to the negative peer who apparently coerced the Applicant's involvement in the criminal scheme. I accordingly reject the Applicant's evidence around items (1), (2) and (3) particularised at [43] of these Reasons.

[45]    I accept, without equivocation, the learned sentencing Judge's finding that the Applicant " ... occupied a relatively low level in any hierarchy" of criminality in which he became knowingly involved. I also accept His Honour's further finding that the Applicant "..... engaged in the conspiracy for some sort of financial benefit ....." This finding is at odds with (and casts into shadow) the Applicant's claim that (1) he was arrested before being compensated for his involvement in the conspiracy; and (2) he received an apparent assurance that his family would continue to receive funds even if he were incarcerated. This presupposes his entire involvement in the conspiracy to the point of his arrest was done for no remuneration. It also presupposes his family received nothing from his entire involvement in the conspiracy despite them apparently receiving financial support from the Applicant's previous, and legitimate, employment. I accordingly reject the Applicant's evidence around items (1) and (2) of this paragraph.

[46]    In terms of positive findings, the following can be said:

•    despite his conduct involving proliferation of illicit substances into our community, the Applicant himself is not an illicit drug user;

•    the Applicant observes a clean-living lifestyle oriented towards sustained physical and mental wellbeing for his own benefit and, it would seem, for the benefit of those around him. A Case Note Report produced under the hand of a staff member of the NSW Department of Corrective Services and dated 29 September 2023 relevantly records that “[The Applicant] has volunteered to participate in a new program in which working inmates are trained to train inmates with mental illness and physical exercise”;

•    the Applicant has, during his time in prison, applied himself commendably well towards a sustained pattern of employment (that is, within the prison community) as well as "Despite being assessed as requiring limited intervention, he has actively sought involvement in behaviour change programs when available.”

Assessment of risk

[47]    Despite the above positive findings, the Applicant is not devoid of psychopathological symptoms. The learned sentencing Judge noted: "He told the psychologist that leading up to and during the offending period he struggled with anxiety and depressed mood, which affected his sleep, motivation and other aspects of his life." We do not know the extent to which these self-reported symptoms impacted (and may continue to impact) his capacity to properly analyse and rationalise the coercive propositions put to him by negative peers. Likewise, we do not know the extent of the Applicant's resilience towards an "easy money'' solution for the apparent financial requirements of his family overseas and for his own sustenance in this country if returned to the community. This is especially so in circumstances where his prospects of a prompt and meaningful re-engagement with lawful employment remain uncertain.

[48]    I will cautiously adopt the respective findings of (1) the learned sentencing Judge who thought (in April 2024) the Applicant represented " ... a relatively low risk of reoffending" and (2) the author of the abovementioned Pre-Release Report who (in November 2024) assessed the Applicant " ... at a low risk of reoffending according to the Level of Service Inventory- Revised (LSI-R)."

[49]    That said, in the absence of any clinical verification or explanation of the impact of the symptoms recorded at [47] of these Reasons on the Applicant's capacity to regulate the contemporaneous psychopathological elements inherent in his offending particularised at [43] of these Reasons, I will find there is an unacceptable risk he may reoffend. I reach this finding with the Direction's dictum " ... that the safety of the Australian community is the highest priority of the Australian Government" at the forefront of my mind.

(Footnotes omitted)

24    The Tribunal then set out its conclusions that the totality of the applicant’s criminal conduct has been “very serious”, that if the applicant were to reoffend in the same way, the resulting harm to victims would range from physical, psychological (including potentially catastrophic) harm together with materially quantifiable harm, and that “while the totality of the evidence points to a finding that this Applicant represents a relatively low risk of re-offending, that risk is unacceptable for the factors identified at [49] of these Reasons”. The Tribunal concluded that primary consideration (1) of Direction 110 confers “a very heavy level of weight towards this Tribunal affirming the decision under review”.

25    In relation to primary consideration (3) (ties to Australia), the Tribunal was satisfied that the applicant had strong ties with a person called Maria, and that the applicant had made moderate employment and community contributions to Australia, which points to a moderate level of weight in favour of setting aside the decision under review.

26    In relation to primary consideration (5) (expectations of the Australian community), the Tribunal noted that the applicant has “clearly breached the Australian community’s expectations as a result of his very serious conduct for which he was sentenced”. The Tribunal observed that the applicant’s offending did not fall within any of the categories of offences which Direction 110 specifies as being such that the Australian community would expect that the offender should not continue to hold a visa due to the nature of the conduct, such as acts of family violence, forced marriage or serious crimes against women, children or other vulnerable community members. Despite this, the Tribunal found that it should be “carefully noted” that the applicant’s offending involved conspiracy with at least four other participants to import 27 consignments of pseudoephedrine, concealed to avoid detection. The Tribunal was therefore “comfortably satisfied” that the gravity of the applicant’s conduct and consequent sentence was sufficiently serious that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of his visa.

27    The Tribunal considered whether there were any factors which modified the Australian community’s expectations in relation to primary consideration (5) and ultimately formed the view that in the applicant’s case the community’s expectations are not modified to have a higher than usual tolerance of criminal conduct. The Tribunal therefore concluded that primary consideration (5) confers a very heavy level of weight in favour of the Tribunal affirming the decision under review.

28    The Tribunal also considered the three “other considerations” identified in paragraph 9 of Direction 110 at [78]–[96]. As noted above, the Tribunal observed that other consideration (c) (impact on Australian business interests) was not relevant to the present application. The Tribunal allocated moderate weight to other consideration (a) (legal consequences of the decision) in favour of setting aside the decision under review, neutral weight to other consideration (b) (extent of impediments if removed to Sri Lanka), and moderate weight to other consideration (bb) (extent of impediments if removed to a regional processing country (Nauru)) in favour of revocation.

29    The Tribunal found that the combined weights it allocated to primary consideration 3 and other considerations (a) and (bb) are outweighed by the combined weights it allocated to primary considerations 1 and 5. Ultimately, as I have noted above, it affirmed the delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa.

3.    CONSIDERATION OF THE APPLICATION

30    In ground 1 of the application for review, the applicant contends that the Tribunal failed to afford procedural fairness. In the particulars appended to this ground, the applicant contends that the Tribunal failed to put the applicant on notice of its reasoning that in view of the fact that the applicant said he suffered from anxiety and low mood, the Tribunal would require expert evidence to rebut that this was a psychopathological mental illness which would predispose him to reoffend. He also contends that the Tribunal failed to put him on notice that it considered his symptoms of anxiety and low mood as “psychopathological” such as would predispose him to reoffend.

31    I do not consider that the applicant accurately characterises the reasoning of the Tribunal in both this ground and others.

32    At [35] of the Tribunal’s reasons, it observed that the applicant had given oral evidence that he had spoken with a counsellor and claimed symptoms of anxiety and stress, but found that he did not articulate the extent to which those symptoms predisposed him to offend in the past or how they might orientate any future predisposition to offend. Subsequently, at [43] the Tribunal commenced consideration of three factors that it regarded to be relevant to the assessment of the likelihood of a repetition of the offending conduct by the applicant: (1) past negative peer associations, (2) financial needs to support the family; and (3) a susceptibility to being easily led and coerced into serious criminality.

33    The Tribunal considered each. After doing so, at [47] the Tribunal referred particularly to factors (2) and (3), and quoted from the sentencing judge that the applicant “told the psychologist that leading up to and during the offending period he struggled with anxiety and depressed mood, which affected his sleep, motivation and other aspects of his life”. The Tribunal noted that it did not know the extent to which those symptoms may continue to impact upon the applicant’s capacity to analyse and respond to the coercive propositions of his negative peers or resist an “easy money” criminal solution for financial needs. After accepting at [48] that the applicant represents a relatively low risk of re-offending, the Tribunal then returned to the applicant’s psychological state and made its finding at [49] that there is an unacceptable risk that he may reoffend.

34    I accept that [49] is awkwardly worded and requires careful review. However, the Court does not approach the reasoning of the decision-maker with an eye attuned to error, and is not concerned with looseness in language nor with unhappy phrasing: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30].

35    It is apparent from a careful reading of [49] that the Tribunal took into account as a relevant factor in assessing recidivist risk that the symptoms the applicant reported to the psychologist at the time of his offence (being anxiety and depressed mood which affected his sleep, motivation and other aspects of his life, as recorded by the sentencing judge) may have had some impact on his capacity to resist in the future enticements by peers to reoffend and to resist the lure of easy money by reoffending. More specifically, the Tribunal noted at [47] that it does not know the extent to which these symptoms had, and may continue to have, an impact upon (1) his ability to resist coercion into criminal conduct or (2) led him to take the option of “easy money”. The Tribunal in effect found that should those symptoms recur there is an unacceptable risk that the applicant’s criminal conduct will be repeated.

36    This is in the context of the Tribunal’s earlier observation at [35] that the applicant had given oral evidence in the hearing of a review by a counsellor and his claimed symptoms of anxiety and stress, and was unable to explain how these symptoms would impact any future offending.

37    Taken as a whole, the view of the Tribunal was that one factor relevant to the commission of the offences was the self-reported anxiety and depressed mood, which affected the applicant’s sleep and motivation. It could not rule out that this factor would not recur, and indeed heard oral evidence from the applicant that he continued to suffer symptoms of anxiety and stress, and did not receive any evidence that it considered to explain or mitigate the relevance of these symptoms to the offending. Accordingly, it took those matters into account, as it was entitled to do.

38    In ground 1, the applicant contends that the Tribunal failed to afford procedural fairness by finding that the applicant suffered from a mental illness, and placing the onus on the applicant to rebut the Tribunal’s finding that his mental illness meant he posed an unacceptable risk to the community in the absence of evidence to the contrary.

39    There can be no doubt that the general question of the mental health of the applicant was raised before the Tribunal and with the knowledge of the applicant. As much is clear from [35] of the Tribunal’s reasoning, which indicates that the applicant gave oral evidence about his mental health to the Tribunal. Further, the Minister’s Statement of Facts, Issues and Contentions dated 29 July 2025 noted the sentencing judge’s remarks on the applicant’s self-reported mental illness as a factor which “rendered him more susceptible to making bad decisions, such as his choice to be involved with the index offending” (at [33(d)], [34]). It was also a part of the reasoning of the delegate in affirming the mandatory cancellation of the applicant’s visa, who noted at [49] of their reasons they could not rule out that the applicant may again face stress or personal difficulties in the future.

40    In that context, the Tribunal considered the mental state of the applicant at the time of the offending and weighed in the balance the question of whether or not it might contribute to future offending. It is clear that the applicant was on notice that this question was in issue before the Tribunal.

41    The obligation to afford procedural fairness does not require further notice of the particular arguments or reasons that the Tribunal may find acceptable: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [47], [48]; Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489 at [51].

42    Nor do I consider that the Tribunal reversed the onus and required the applicant to prove that he did not suffer from a mental illness which was “psychopathological”, or to prove that this did not predispose him to reoffend, through expert evidence or otherwise. Rather, the Tribunal considered the evidence before it concerning his symptoms and the weight which that evidence should be given. The Tribunal found that was insufficient evidence that the risk factors that had been placed into evidence before it should be ruled out as a relevant consideration.

43    Accordingly, ground 1 must be dismissed.

44    In ground 2, the applicant contends that the Tribunal unreasonably found that he posed an unacceptable risk to the Australian community by purporting to find that he may commit further offences or engage in other serious conduct. The particulars to this ground contend that the finding at [49] that the applicant’s mental health issues were “psychopathological” and hence continued to pose a risk went beyond the evidence, was legally unreasonable, failed to take into consideration his good behaviour since the offending, and purported to exercise an expertise beyond the capacity of the Tribunal. The particulars also contend that the Tribunal at [47]–[52] applied impermissible reasoning that any risk to the Australian community was unacceptable.

45    The law in relation to legal unreasonableness may be summarised by reference to the decision in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21:

33 The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].

34    The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

35    Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

46    In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321, the High Court found at [6] that:

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.

(Footnotes omitted)

47    The primary criticism advanced by the applicant is that the Tribunal was legally unreasonable in finding that the applicant posed an unacceptable risk when applying Direction 110, by finding that he may commit further offences. This is centred on criticism of the reasoning in [49] because, the particulars contend, the finding there went beyond the evidence and purported to exercise an expertise beyond that of the Tribunal.

48    However, the predicate for this ground is that the Tribunal made a finding based on no or insufficient evidence as to the psychological state of the applicant and the relevance of his mental health to his offending. That is incorrect. The Tribunal quoted the sentencing judge’s finding at [47] of its reasons concerning the applicant’s psychological symptoms of anxiety and depressed mood. This was taken from the report of a clinical psychologist prepared for the applicant for the purposes of his sentencing hearing where the clinical psychologist said:

Leading up to and during the offending period, [the applicant] said he struggled with symptoms of mixed anxiety and depressed mood, which included sleep disturbance, anhedonia, amotivation, social withdrawal/isolation, worry and rumination. [The applicant] said he was, and remains, preoccupied with his mother’s deteriorating health and he felt powerless to provide financial assistance for surgery when Covid-19 lockdown prevented him from working…

49    This evidence was before the Tribunal. I have also noted the oral evidence given by the applicant as summarised by the Tribunal at [35]. In addition, at [37] of its reasons, the Tribunal quoted the sentencing judge’s finding that “the [Applicant’s] background is such that it reduces his moral culpability to a material degree by rendering him more susceptible to making bad decisions, such as his choice to be involved in this offence” (italic emphasis added). That background, as set out in the sentencing judge’s remarks set out at [67]–[68], included the applicant’s mental health symptoms.

50    Properly understood, in my view the Tribunal accepted that the applicant’s mental health symptoms noted by the sentencing judge may recur, and evaluated the risk to the Australian community should those conditions arise and coincide with the other risk factors considered by the Tribunal. The Tribunal was entitled to have regard to the conditions under which the offending occurred in the past, and the likelihood that those conditions have changed, in evaluating the applicant’s risk of re-offending: CKL21 v Minister for Home Affairs [2022] FCAFC 70; 293 FCR 634 at [74].

51    Accordingly, I reject ground 2.

52    In ground 3 the applicant contends that the Tribunal misunderstood and misapplied the evidence before it in finding that the applicant’s mental health difficulties were psychopathological in nature and predisposed him to an unacceptable risk of reoffending, in the absence of rebutting evidence to the contrary. The particulars contend that the Tribunal lacked the expertise to characterise the applicant’s symptoms as “psychopathological” and made this finding without expert evidence and that the finding was against the evidence before the Court that the applicant did not suffer from a mental illness. The particulars also contend that the Tribunal went beyond and against the evidence in finding that the applicant’s mental health symptoms were causative of the offending and predisposed him to offend.

53    In my respectful view, too much is made by the applicant of the reference to the word “psychopathological”. The symptoms to which the Tribunal refers are those that the sentencing judge noted were reported to the psychologist leading up to and during the offending period (being, as I have noted, anxiety, depressed mood affecting his sleep, motivation and other aspects of his life), and those apparently reported by the applicant himself in oral evidence before the Tribunal (being anxiety and stress). The Tribunal evaluated the evidence before it that addressed those symptoms and their impact on his offending, amongst other factors impacting on his offending, and concluded that there is an unacceptable risk that he may reoffend. The Tribunal did not find that those symptoms caused the offending, but rather that they were a factor that rendered the applicant more susceptible to making bad decisions such as the offending (as the sentencing judge found at [68]), and hence it was something the Tribunal would take into account when considering the risk of recurring offending. The evidence before the Tribunal was sufficient for it to take these matters into account in forming its evaluative conclusion.

54    Accordingly, in my view no jurisdictional error has been established on the basis of ground 3.

55    In ground 4 the applicant contends that the Tribunal failed to explain or put the applicant on notice as to what it meant by its finding and use of “pseudo medico-legal terminology at 47-52 attributing to the Applicant as presently suffering from psychopathological symptoms predisposing him to reoffend”. In his particulars, the applicant substantively repeats the particulars summarised above in relation to grounds 2 and 3 and concludes that the Tribunal failed to give genuine intellectual consideration to the evidence of the applicant that he was now a low risk of reoffending and that the risk posed to the community was not an unacceptable risk.

56    Ground 4 does not advance the applicant’s case beyond grounds 2 and 3. To the extent that this ground raises anything different to grounds 2 and 3 the criticism apparently lies in the contention that the word “psychopathological” has no definite meaning. However, it is clear enough that the Tribunal was there referring to the particular symptoms that it had identified at [35] and [47], and as I have found above in relation to ground 1 the applicant was on notice as to the issue of how these symptoms factored into the circumstances around his offending. That submission must be rejected.

4.    CONCLUSION

57    For the reasons given, the application must be dismissed with costs.

Associate:

Dated:    23 June 2026