Federal Court of Australia

Hancy v Minister for Immigration and Citizenship [2026] FCA 1195

ORDERS

THE COURT ORDERS THAT:

1.    The further amended originating application filed 10 April 2026 is dismissed.

2.    The Applicant is to pay the First Respondent’s costs of the proceeding, to be assessed, if not agreed.

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

REASONS FOR JUDGMENT

LONGBOTTOM J:

overview

1    The Applicant seeks a review under s 476A of the Migration Act 1958 (Cth) of the decision of the Second Respondent (Tribunal) to affirm the decision of a delegate of the First Respondent (Minister) not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (ART decision).

2    The Applicant is a citizen of New Zealand. He came to Australia on 21 December 2013, aged 28. On 20 November 2023, the Applicant pleaded guilty in the District Court of Queensland to dangerous operation of a motor vehicle occasioning grievous bodily harm whilst adversely affected by an intoxicating substance (index offence) and drink driving (drink driving offence). He was sentenced to five years imprisonment for the index offence to be served concurrently with a term of six months imprisonment for the drink driving offence. The index offence led to the mandatory cancellation of his visa on 22 April 2024 under s 501(3A) of the Act.

3    The Applicant was invited to, and made, representations to the Minister seeking that the mandatory cancellation be revoked: Act, s 501CA(3)(b) and s 501CA(4)(a). On 16 January 2025, a delegate of the Minister decided not to revoke the mandatory cancellation (501CA decision): Act, s 501CA(4). The Applicant then applied to the Tribunal for a review of the 501CA decision: Act, s 501(1)(ba).

4    The ART decision was made on 9 April 2025. The Tribunal found that there was not “another reason” why the mandatory cancellation of the visa should be revoked because “the two primary considerations favouring non-revocation considerably outweigh the combined weight to be given to the countervailing primary and other considerations”: ART decision at [108]. The two primary considerations favouring non-revocation were the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community: ART decision at [62],[93] and [108]; see also, Direction No. 110, “Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.

5    By further amended originating application, the Applicant seeks review of the ART decision on two grounds. Those grounds, each of which are said to constitute jurisdictional error, may be summarised as follows:

(a)    The Tribunal failed to afford the Applicant procedural fairness by substituting its own opinion as to his risk of recidivism for that of an expert, without giving the Applicant an opportunity to address the proposed substitution of a different risk level (Ground 1).

(b)    The Tribunal made findings or drew inferences that were unfavourable to the Applicant with respect to sentences imposed on the Applicant, which findings or inferences were not logically supported by the material (Ground 2).

6    For the reasons that follow, I am not satisfied that the ART decision was infected by jurisdictional error either by reason of a denial of procedural fairness or illogicality or irrationality in reaching the state of satisfaction s 501CA(4)(b)(ii) requires. The further amended originating application will be dismissed, and the Applicant will be ordered to pay the First Respondent’s costs.

grounds of review

Ground 1: Did the Tribunal deny the Applicant procedural fairness in addressing his risk of recidivism?

7    Ground 1 challenges the finding by the Tribunal that “the Applicant is at least a moderate risk of re-offending and causing significant harm to another road user or pedestrian” (risk finding): ART decision at [62]. The risk finding was at odds with a pre-sentencing report for the index offence, which was before the Tribunal. The pre-sentencing report by psychologist, Sarah Jones, found that the Applicant’s overall risk of re-offending fell into the “Low Risks/Needs Range” (risk assessment).

8    The Applicant characterises the risk finding as the Tribunal substituting its own (and more adverse) recidivism assessment for that in the pre-sentencing report. The Applicant argues that he was denied procedural fairness because the possibility of the risk finding was not brought to his attention (either as a matter put in issue by the Minister or one squarely raised by the Tribunal) nor was it an issue which was obvious, including because the delegate did not have the pre-sentencing report. He emphasises, in that regard, while a family member acted as a
“family representative” during the hearing, he was not legally represented in the Tribunal. The Applicant submits the denial of procedural fairness led to practical injustice because he was denied the opportunity to address the Tribunal on a matter that the Tribunal found ultimately weighed against him.

9    The Minister disputes that the possibility of the risk finding was not brought to the Applicant’s attention. He submits that the Applicant was on notice, by reason of the explanation the Tribunal gave at the hearing of its function, that the weight to be attributed to the pre-sentencing report was in issue. But more than that, the Minister argues that the conduct of the proceeding was such that the possibility of the risk finding was one which was obviously open on the known material.

The requirements of procedural fairness

10    Procedural fairness requires that the person affected by a decision is given a meaningful opportunity to be heard: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [55] (Gageler J). The “underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness” is “to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters”: Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; (2018) 265 FCR 177 at [44] (Flick, Griffiths and Derrington JJ). What is necessary to ensure a fair hearing depends on the particular factual and statutory context, the rules of procedural fairness being flexible and adaptable so as to be appropriate in a given case and so as to avoid practical injustice: Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 59; (2024) 303 FCR 261 at [24] (Rangiah, Thawley and Shariff JJ).

11    Here, that statutory context included the inquisitorial function being performed by the Tribunal under s 500 of the Act: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [63] (French CJ, Kiefel, Bell and Keane JJ). This obliges the Tribunal to determine the substantive issues raised by the material and evidence before it, unconfined by the “case” put by an applicant: see, eg, Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287 at [50] (Feutrill J). The factual context included that the Applicant was not legally represented, which engaged the duty of the Tribunal to diminish, as far as was possible, the disadvantage which he suffered by that fact: Andelman v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 299; (2011) 213 FCR 345 at [21]-[26] (Jagot J), citing Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438 at [26]-[29] (Sackville, North and Kenny JJ) and Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367 at [6]-[12] (Allsop P).

12    An applicant is entitled to have his or her mind directed to the critical issues or factors on which the decision to be made by the Tribunal is likely to turn. An applicant is also entitled to be advised of any adverse conclusion which has been arrived at which would not obviously be open on the known material: Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at pp 591-592 (Northrop, Miles and French JJ). But procedural fairness does not require the Tribunal to expose its mental processes to comment, nor does it require a “running commentary” of what the decision-maker thinks about the evidence that is given before the decision is made: Goadsby v Harness Racing New South Wales [2025] NSWSC 355 at [35] (Stern J), citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also, Alphaone at pp 591-592; F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at p 369 (Lord Diplock).

13    The concept of “practical injustice” reflects that a denial of procedural fairness results in a decision being affected by jurisdictional error, so as to be capable of justifying the grant of curial relief, only if that denial is shown by the applicant to have been material to the decision. The materiality of a denial of procedural fairness is demonstrated by the existence of a realistic possibility that the decision could (not would) have been different had procedural fairness been observed: Nathanson at [41]-[45] (Gageler J), [1] and [33] (Kiefel CJ, Keane and Gleeson JJ), [63] (Gordon J) and [95] (Edelman J).

Did the Tribunal deny the Applicant procedural fairness with respect to the risk finding?

14    The Tribunal did not deny the Applicant procedural fairness with respect to the risk finding. That is because, for the reasons that follow, I am persuaded that the Applicant both had his attention drawn to the risk of his re-offending as a factor on which the decision of the Tribunal was likely to turn, and the risk finding itself was one which was obviously open on the known material.

The proceeding before the Tribunal

15    Before the Tribunal, the Minister filed a “Statement of Facts, Issues & Contentions” identifying the reasons why the Minister contended that the non-revocation decision should be affirmed by the Tribunal (SFIC). The SFIC addressed each of the considerations in Direction No. 110 including, materially, primary consideration 1 “protection of the Australian community from criminal or other serious conduct” which requires consideration of the “risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct”.

16    The SFIC referred to the pre-sentencing report, contending that its risk assessment should be attributed “little weight” because Ms Jones was not aware of the Applicant’s criminal history in New Zealand and the Applicant “denied having any previous criminal history” to Ms Jones. The Minister then referred to the factors Ms Jones identified as being relevant to the Applicant’s offending and the absence of evidence as to both the content of courses he took in prison or his engagement in cognitive behavioural therapy to address those contributing factors. The SFIC stated:

The [Minister] contends that if the Applicant commits further offending of a similar nature it would cause significant harm. The Minister also contends that the Applicant remains an ongoing (moderate to high) risk of reoffending, having regard to the Applicant’s offending history, the longstanding issues which appear to have contributed to his offending, and the lack of evidence of having meaningfully addressed those issues.

(Emphasis added)

17    At the outset of the hearing, the Senior Member explained the proceeding to the family representative for the Applicant because she was not legally trained. That explanation included that the Tribunal was conducting a merits review which required him to decide whether there was “another reason” to revoke the mandatory cancellation of the visa. The Senior Member went on to say:

But in making my decision, what I’m trying to do is to give both sides an opportunity to put before me the things that they say are most important, most probative to deciding the case. Now, I mentioned earlier that I’m making my decision afresh. It’s a new decision, not reviewing if someone else previously got it right or wrong. And I have to apply something called Direction 110. It’s a direction from the minister which lists a series of primary and other considerations that I have to have regard to in deciding in this case whether there’s another reason to revoke the cancellation of Mr Hancy’s visa.

The first of these five primary considerations, and I’ll talk through each of them and then give you an opportunity to ask some questions, is protection of the Australian community from criminal or other serious conduct. So this looks at two things. It looks first at the nature and seriousness of any crimes that have been committed, but also any other conduct …

… So the second part of it is the risk to the Australian community if an applicant commits any further offences or engages in other serious conduct. So they’re the two parts of that first primary consideration, protection of the Australian community. Any questions about that on your side, Mr Hancy, Ms Ririnui?

(Emphasis added)

18    The Applicant was then called to give evidence. During his examination, the Senior Member put to him that Ms Jones did not know anything about his “New Zealand offending” – which the Applicant agreed with. There then occurred the following exchange regarding the pre-sentencing report:

[SENIOR MEMBER]: And Ms Jones made an assessment of your risk of re-offending. And in these proceedings, that’s one of the things I have to consider. Remember I talked before about protection of the Australian community. There’s two parts to that. The nature and seriousness of your offending and the risk. One of the things that’s influential, when I’m thinking about risk, is any expert evidence. And a psychologist, a psychiatrist, they’re experts, okay?---Yes. Yes.

Ms Jones, using something called the LSIR methodology — it’s a fancy name for an instrument that psychologists use to try and make an assessment about someone’s risk of re-offending — she concluded that your overall risk fell in the low area?---Yes.

But she didn’t have any knowledge about what had occurred in New Zealand?---Yes.

And so I’m just putting to you that without that information, the amount of emphasis, the amount of priority I can put on that report is diminished by the fact that she didn’t have the whole picture. And I want to give you an opportunity to say anything about that, if you would like?---Yes.

Would you accept that or not accept that?---No, I’ll accept it.

(Emphasis added)

19    Next, the Senior Member asked the Applicant about “protective factors” explaining that a “protective factor is those things that people are saying would help you not to re-offend”. The Tribunal asked the Applicant whether he understood what a protective factor is, to which he answered, “No”.

20    The Senior Member then said:

… Ms Ririnui and your former partner are saying that they will be there to help you. Their interests, the interests of your kids, will stop you from re-offending again. But it would seem to me that despite a relationship with Ms Keihei, despite your kids, who are now 14 and 16, despite their interests in the past, despite you having other protective factors like work, you’ve re-offended?---Yes. Yes.

And so I want to put to you that those protective factors are similar to what was there before. Would you accept that?---Yes. Yes.

A partner, the interest of your kids?---Yes.

Work?---Yes.

So I’m asking you, I’m trying to understand from you, what would be different this time, if you got out?---I’ve changed a lot since I’ve been in.

You’ve changed a lot?---Yes, my — yes.

So how do I know that after all these stressors that you’ve had, not just the stuff with the police, but obviously the visa stuff that’s happened - - -?---Yes. - - -

what would stop you when you’re at complete liberty in the community doing what you did after the motorcycle incident? Going back to having a drink, going back to the pub after work, and drink driving again?---No, that’s the past. We’ve got a different future now.

What did you say?---Different future now.

21    Shortly thereafter, the Tribunal adjourned for lunch. Before adjourning, the Senior Member asked the Applicant’s family representative to consider whether she had any questions for him or re-examination of the Applicant. When the hearing resumed, the family representative did not ask the Applicant any questions about the risk assessment. But she did ask the Applicant whether he accepted responsibility for his past offences and whether he had learned from his past experiences. There was then an exchange with the Senior Member as to the permissibility of those questions. The family representative explained that her reason for asking the questions was that “he’s been challenged to say that he is a risk to the community … so I am trying to show that he can follow the rules.”

22    The following day, each party gave their closing submissions. The Senior Member explained to the Applicant’s family representative that it was an opportunity “for each side to say, in closing their case, ‘Okay, we’ve heard all the evidence, here’s what we want to emphasise, what we say to you at the end of all the evidence, that’s most important to deciding the case’”. The Senior Member said that, while ordinarily, the Minister would make his submissions second, because the Applicant was not legally represented, the Minister would give his closing address first.

23    The Minister said in closing submissions:

The Minister also contends that the Applicant remains an ongoing moderate to high risk of reoffending if he were released into the community, having regard to his history of offending, the long-standing issues which appear to have contributed to his offending, and the lack of evidence of having meaningfully addressed those issues such that they’re no longer a concern …

(Emphasis added)

24    In making that submission, the Minister discussed the pre-sentencing report, noting that Ms Jones had “referred to the Applicant having a chronic alcohol issue, PTSD, anxiety and depression” before dealing with evidence given by the Applicant under cross-examination as to the contributing causes to his offending. The Minister then addressed the evidence, including that given by the Applicant, as to the steps he had taken to address those issues. The Minister submitted that the Applicant did not have a “clear plan” to deal with the issues which contributed to his offending and appeared “to accept that those issues haven’t been appropriately dealt with”. The Minister went on to submit to the Tribunal with respect to risk that:

… the belief that the applicant won’t drink again, or engage in further conduct or further offending is aspirational, and it’s not reflected by any significant lived experience of this having occurred in the community. It’s also evident, Senior Member, that the applicant’s partner and his family clearly have his best interests at heart and hope that he won’t reoffend. But that of itself is not demonstrative of a risk, or a lack of a risk. Many of the protective factors which would ordinarily be considered to reduce the risk of reoffending occurred or existed throughout the period of the applicant’s offending.

He had a regular employment history, had a family, had children. The possibility of imprisonment during that period as a result of the applicant’s conduct, in particular hitting the motorcyclist, and the applicant says he was aware that that was a real possibility, as being a consequence of his actions, wasn’t a sufficient deterrent from engaging in further conduct, namely the drink driving which occurred two years later. We would also contend, Senior Member, that little weight could be attributed to Ms Jones’ assessment of the applicant’s risk of re-offending in circumstances where she had no awareness of the applicant’s full criminal history, certainly all of his criminal history in New Zealand, and a limited understanding of his traffic history.

And we would say that those things would certainly have been material for her assessment of risk. For these reasons, Senior Member, we state that there remains an ongoing moderate to high risk of re-offending, and that the nature of any re-offending is such that that risk should be considered unacceptable …

(Emphasis added)

25    The family representative also addressed the question of risk during her closing submissions. She submitted that:

This case is about recognising that [the Applicant] is not the same man who committed these past offences. He has gone – undergone a deep structured process of rehabilitation, has the support of his family and professionals, and is now a low-risk reformed individual whose deportation would severely harm his children, his family and his extended support network …

(Emphasis added)

26    The family representative addressed the Applicant’s rehabilitation, submitting that since his incarceration the Applicant had “undertaken a complete personal transformation” which had “been substantiated by correctional, clinical and psychological professionals, including formal assessments”. She addressed both the pre-sentencing report and a Corrective Services report addressing the Applicant’s risk of recidivism. The family representative said with respect to the risk assessment:

Although Sara Jones’ psychological report is not given considerable weight due to the fact she was unaware of all of his past offending, with the evidence that she was given at the time, she classified him as a low risk of re-offending.

And that was based on his emotional insight, his continued sobriety and engagement in therapy. His psychological profile and his behaviour in prison have both demonstrated that he has undergone a genuine transformation …

(Emphasis added)

The Tribunal’s findings

27    The risk finding formed part of the Tribunal’s overall conclusion regarding primary consideration 1. The Tribunal said (ART decision at [62]):

Ms Jones’ pre-sentence assessment of a ‘Low Risk/Needs Range’ is not accepted because of the Applicant’s false claim about not having any offences prior to arrival in Australia. Little weight is placed on [the family representative’s] opinion, including because she is in a relationship with the Applicant and has no professional qualifications relevant to assessing recidivism risk. The Tribunal considers the Applicant is at least a moderate risk of reoffending and causing significant harm to another road user or pedestrian. The nature of harm from such conduct falls into a category where any risk of repeat is unacceptable. This primary consideration weighs substantially against revocation.

(Emphasis added)

28    The Tribunal reiterated that finding at [104] of the ART decision.

The risk finding was obviously open on the known material

29    As appears from that overview, during the course of the proceeding, the Applicant was advised of the following matters:

(a)    First, the Tribunal was making the decision afresh, which required the Senior Member to decide whether there was “another reason” to revoke the mandatory cancellation of his visa.

(b)    Second, in making that decision, the Tribunal had to have regard to the considerations in Direction No. 110 including, relevantly, primary consideration 1 and the risk to the Australian community if the Applicant commits any further offences or engages in other serious conduct.

(c)    Third, each party would be given the opportunity at the hearing to put before the Tribunal the things that they say are most important, most probative, to deciding the case.

(d)    Fourth, the Minister contended that the Applicant remained an ongoing (moderate to high) risk of re-offending, given his offending history, the longstanding issues which appear to have contributed to his offending, and the lack of evidence of having meaningfully addressed those issues.

(e)    Fifth, while expert evidence was influential in assessing the risk, the Tribunal considered that the weight that could be attributed to the risk assessment in the pre-sentencing report was diminished by the fact that Ms Jones did not have knowledge of what occurred in New Zealand.

(f)    Sixth, while the Tribunal had heard evidence about protective factors against the Applicant re-offending, the Senior Member considered it relevant that those protective factors are similar to what was there beforehand but had not stopped the Applicant from offending in the past.

30    There can be no doubt, given those matters, that the Tribunal brought to the Applicant’s attention the need to demonstrate that there was a basis, other than the pre-sentencing report, to find that he was at low risk of re-offending. The Senior Member made express his adverse view about the weight he could attribute to that report. The Senior Member also made clear that “protective factors” were relevant in determining risk, and that the issue with the evidence that had been given about those “protective factors” at the hearing was that they had been present in the past but had not stopped the Applicant from offending. There was no failure of procedural fairness in the Tribunal concluding, as it did, that the Applicant was “at least a moderate risk of reoffending”. That was an obvious and natural evaluation of the factors relevant to the assessment of risk that were traversed with the Applicant during the hearing: cf, Alphaone at pp 591-592.

31    I am confirmed in that view by the closing submissions made by the Applicant’s family representative. The family representative in terms acknowledged that the pre-sentencing report “is not given considerable weight due to the fact she was unaware of all of his past offending”. Her submissions engaged with the consequence that posed regarding the conclusion the Tribunal may draw as to his risk of re-offending by arguing that the Applicant had “undergone a deep structured process of rehabilitation [and] has the support of his family and professionals, and is now a low-risk reformed individual”.

32    It follows that the Applicant was not denied procedural fairness with respect to the risk finding.

Risk finding did not cause practical injustice

33    If I am wrong and the Applicant was denied an opportunity to be heard with respect to the risk finding, then I am not persuaded that it resulted in practical injustice: Nathanson at [80]. As appears from the ART decision at [62], the finding by the Tribunal that primary consideration 1 “weighs substantially against revocation” was premised on its view that the nature of the harm to another road user or pedestrian should the Applicant re-offend, was such that “any risk of repeat is unacceptable” (emphasis added). It is not a case, therefore, in which the level of risk was material to the decision the Tribunal made as to that consideration. There is not a realistic possibility that the conclusion on that consideration could have been different had procedural fairness been observed. It would inevitably have been the same because it was the fact, not the level, of a risk which founded the Tribunal’s conclusion that primary consideration 1 weighed substantially against revocation.

34    Ground 1 is not established.

Ground 2: Did the Tribunal make findings, or draw inferences, of fact with respect to the Applicant’s criminal history that were not logically supported by the material?

35    Ground 2 challenges nine findings the Tribunal made, or inferences it drew, about the criminal history of the Applicant and the circumstances of his offending in the course of making the ART decision. The Applicant contends that those findings were not logically supported by the material before the Tribunal. He submits that their individual and cumulative effect is that the Tribunal did not reach the required state of mind in making the ART decision because its pathway in reaching conclusions as to primary consideration 1 and primary consideration 5 (expectations of the Australian community) was illogical or irrational.

36    The Minister disputes that the impugned findings were in error. He argues that the complaints made by the Applicant involve an “overly pernickety” construction of the ART decision, which “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115 at [64] (Kirby J) and Le v Minister for Immigration and Citizenship [2025] HCASJ 33 at [23] (Steward J), citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). But, in any event, the Minister submits that the findings could not ground an inference of illogicality constituting jurisdictional error because the ultimate decision reached by the Tribunal was open on the material. Further, even in aggregate, the Minister argues that the impugned findings were not such as to render the reasoning as a whole so flawed that it did not meet the implied condition of reasonableness qualifying the valid exercise of the power of the Tribunal in making a decision under s 501CA of the Act: Masi-Haini v Minister for Home Affairs [2023] FCAFC 126; (2023) 298 FCR 277 at [49]-[52] (Markovic, Meagher and Kennett JJ) and CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [15]-[16] (Colvin J).

Illogicality or irrationality in decision-making

37    The threshold standard to establish illogicality or irrationality is “very high”: AZX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1379 at [46] (Derrington J), citing MZYOI v Minister for Immigration and Citizenship [2012] FCA 868; (2012) 130 ALD 256 at [165] (Dodds-Streeton J). It requires that the decision itself is one that no reasonable person could reach; or at least, an irrational finding on the way to the decision on a point that is “critical”: Masi-Haini at [54], as cited by Kennett J in Wiseway Logistics Pty Ltd v Secretary, Department of Home Affairs [2024] FCA 427 at [103]; see also, Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [33]-[34] (Allsop CJ, Besanko and O’Callaghan JJ) and EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128; (2025) 311 FCR 155 at [35]-[36] (Hill J, with Cheeseman and Owens JJ agreeing as to the result).

38    Here, the “decision” is whether the Tribunal is satisfied that there is “another reason” why the mandatory cancellation should be revoked: Act, s 501CA(4)(b)(ii). The state of satisfaction the Tribunal reaches with respect to that question, following an examination of the factors for and against, mandates the decision to be made; there is no residual discretion. It is, therefore, a one-stage process whereby if the Tribunal is satisfied following an evaluation of the relevant criteria that there is “another reason” why the mandatory cancellation should be revoked, then it is obliged to act on that view and reinstate the visa (and vice versa): Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [30] (Collier J, with whom Logan and Murphy JJ agreed), citing with approval Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338 at [38]-[39] (North ACJ).

39    It is, however, possible for the sheer number of errors made in the reasoning process to lead to a finding of jurisdictional error: CWRG at [10] in the context of legal unreasonableness. One such example is WCJS v Minister for Home Affairs [2021] FCA 1093. In that case, Stewart J found that the decision-maker had made six errors, only two of which were material. Nonetheless, his Honour considered that all of the errors, taken together, amounted to jurisdictional error because they had the effect that the ultimate conclusion reached by the decision-maker was without intelligible justification, illogical and irrational in the relevant sense: at [114].

The impugned findings

40    Seven of the findings in issue were made by the Tribunal in the course of considering the nature and seriousness of the Applicant’s conduct relevant to primary consideration 1. One such finding had been repeated from the “background facts” section. Another finding, also made in the “background facts” section was tangentially referenced by the Tribunal in its subsequent consideration of the nature and seriousness of the Applicant’s conduct. The last of the impugned findings was made by the Tribunal in dealing with primary consideration 5.

Primary consideration 1

41    In summary, the Tribunal found and the Applicant submits with respect to those findings:

(a)    Good behaviour bond: That the Applicant had been convicted for common assault in New Zealand “for which he received a nine-month good behaviour bond” (ART decision at [35]; see also at [5]). The Applicant submits that is a finding that he was sentenced for common assault which is in error because he was only liable to be sentenced, if called upon within the nine-month period following his conviction: cf, Sentencing Act 2002 (NZ), s 110 and s 111.

(b)    Fines: That the Applicant had “incurred multiple fines for failing to pay tolls” in Australia (ART decision at [36]). The Applicant submits that is in error because there was no evidence that he had incurred multiple fines. Rather, the only evidence was seven instances of his failure to comply with a “s 99(7) notice without reasonable excuse”. A “s 99(7) notice” is issued by a toll operator under s 99 of the Transport Infrastructure Act 1994 (Qld) and requires the registered operator of a vehicle to pay a deferred toll, unless they have a “reasonable excuse”.

(c)    Driving: In relation to the index offence of dangerous operation of a motor vehicle occasioning grievous bodily harm while intoxicated, that the Applicant “was found to have driven dangerously and at high speed for about 10 kilometres before driving through a red light at a large and busy intersection” (ART decision at [37]) (emphasis added). The Applicant submits that is a mischaracterisation of the separate findings in the sentencing remarks of the District Court of Queensland that: (i) the Applicant “drove at a high speed against a red light and through a large and busy intersection”; and (ii) his dangerous driving on that occasion was “over a significant period of about 10 kilometres”.

(d)    Conduct: In relation to the index offence that, “The [District] Court characterised [the Applicant’s] conduct as dangerous criminal behaviour” (ART decision at [37]) (emphasis added). The Applicant submits this is in error because the sentencing judge said, “By the imposition of significant penalties, it is hoped that others who might be tempted to indulge in this sort of dangerous and criminal behaviour might think twice …” (emphasis added), rather than attributing that characterisation to events constituting the index offence.

(e)    Recognisance: That after been charged with the index offence, “The Applicant was found guilty of breaching bail on 11 July 2023. The court did not record a conviction, imposed a four-month good behaviour bond, and fined him $200” (ART decision at [6(b)]) (emphasis added). The Applicant submits that finding is in error because he was released on a recognisance of $200, to be of good behaviour for a period of four months: Penalties and Sentences Act 1992 (Qld), s 31. The Tribunal subsequently referenced that offence in making findings at [41] of the ART decision with respect to the nature and seriousness of the Applicant’s conduct.

(f)    Arrest: That after being charged for the index offence, on 25 July 2023, the Applicant was “again arrested for drink driving in an unregistered vehicle” (ART decision at [39]) (emphasis added). The Applicant submits the finding that he was arrested is illogical because the Applicant was detained for a breath analysis and charged with driving an unregistered vehicle but was not convicted of that offence as the prosecution later dropped the charge.

(g)    Intoxication: That the “[District] Court noted that the Applicant’s capacity to control a vehicle on 25 July 2023 with such a ‘high’ level of intoxication ‘would have been severely impaired’” (ART decision at [40]) (emphasis in original). The Applicant submits this is a mischaracterisation of the separate statements by the sentencing judge: (a) “I note … in relation to the [index offending on the 10th of September 2021] that there is an opinion expressed that your capacity to control a vehicle with that level of intoxication at 0.121, would have been severely impaired”; and (b) the Applicant’s “level of intoxication [on the occasion of his dangerous driving in September], as I have noted, was high”.

(h)    Aggravation: That the District Court “considered [the Applicant’s] commission of another drink-driving offence [on 25 July 2023] while on bail for the [index offence] to be an aggravating feature of his conduct” (ART decision at [40]) (emphasis added). The Applicant submits that this is in error because the sentencing judge stated, “Given the persistence of your offending, the fact that you committed a second offence whilst on bail for the first, of drink driving, … I have come to the conclusion that you should only be released into the community under the constraints and the supervision and support that comes from a parole order”.

Primary consideration 5

42    The Tribunal found:

[92]     The Applicant’s residence in Australia is contextualised by persistent conduct in breach of Australian laws that has harmed others. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, and he should expect to forfeit the privilege of remaining in Australia. This applies irrespective of whether he poses a measurable risk of causing physical harm.

[93]    On balance, this primary consideration weighs substantially in favour of non-revocation.

    (emphasis added)

43    The Applicant submits that the finding in emphasis at [92] of the ART decision is illogical. That is because only the index offence “harmed others” but in referring to “persistent conduct” the Tribunal ought to be understood to have found that the Applicant engaged in repeated offending that harmed others.

Did the Tribunal engage in illogical or irrational fact-finding constituting jurisdictional error?

44    I find as follows with respect to the impugned findings in the ART decision:

(a)    Good behaviour bond: It was open to the Tribunal to find that the Applicant received a “good behaviour bond” for his conviction for common assault. The material before the Tribunal included the Applicant’s New Zealand “criminal and traffic history”. It did not include the Sentencing Act. In any event, as the Minister highlights, the content of foreign law is a question of fact: Tahiri v Minister for Immigration and Citizenship [2012] HCA 61; (2012) 293 ALR 526 at [21] (French CJ, Bell and Gageler JJ). The criminal and traffic history relevantly recorded for the common assault conviction under the heading “sentence detail”: “To Come Up For Sentence if Called Upon … 9 Months”. The description “good behaviour bond” accorded with that entry because it is a recognisance to be of good behaviour for a prescribed period, with a breach of its conditions rendering the person liable to be called up and sentenced: Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 at p 320 (Jacobs J) and at p 338 (Aickin J).

(b)    Fines: It was open to the Tribunal to find that the Applicant had “incurred multiple fines” for failing to pay tolls. A registered operator of a vehicle that fails to comply with a “s 99(7) notice” without reasonable excuse is liable to pay a maximum penalty of 15 penalty units: Transport Act, s 99(7). The material before the Tribunal included a certificate issued under the Transport Operations (Road Use Management) Act 1995 (Qld). The certificate contained “particulars of records of offences” for the Applicant, which included the seven instances of his failing to comply with a “s 99(7) notice” without a reasonable excuse (emphasis added). It was open to the Tribunal to infer from the reference in the certificate to “offences” that the Applicant had been fined for his failure to comply with the s 99(7) notices.

(c)    Driving: The statement that the District Court found that the Applicant had “driven dangerously and at a high speed for about 10 kilometres” was an error (emphasis added). I accept, in that regard, that while driving at a high speed can constitute dangerous driving, and was an aspect of the index offence, the sentencing judge did not in terms state that the Applicant drove “at a high speed for about 10 kilometres”. Rather, the specific finding recorded in the sentencing remarks was that the Applicant “drove at a high speed against a red light and through a large and busy intersection.” I am not persuaded by the Minister’s submission that statement left open the conclusion that the District Court found that the Applicant had driven “at a high speed for about 10 kilometres” because the remarks were confined to the period immediately before the Applicant drove through the intersection, the sentencing judge stating “you drove at a high speed against a red light and through a large and busy intersection” (emphasis added).

(d)    Conduct: It was open to the Tribunal to find that the District Court “characterised” the Applicant’s conduct with respect to the index offence as “dangerous criminal behaviour”. The statement by the sentencing judge that he was imposing a significant penalty as a deterrent for others who might be tempted to indulge “in this sort of dangerous and criminal behaviour” is sensibly understood as a characterisation of the behaviour for which the Applicant was being sentenced as “dangerous and criminal behaviour”.

(e)    Recognisance: The Minister concedes, and I agree, that the Tribunal made an error when it found that the Applicant was “fined” $200 for breaching bail. The material before the Tribunal recorded that the Applicant received a “recognisance” for breach of bail which made the Applicant liable to pay that amount should he breach its terms, but did not require him to do so as would be the case if he was fined: cf, Penalties and Sentences Act, s 31.

(f)    Arrest: It was open to the Tribunal to find that the Applicant was “arrested” on 25 July 2023 for drink driving in an unregistered vehicle. The material before the Tribunal included a Queensland Police Service “Court Brief” which recorded that the Applicant was “detained” by police following the provision of a “positive result” for a “roadside breath test” and “transported” to the police station where computer checks revealed, and the Applicant admitted, that the vehicle he was driving was unregistered. The Court Brief further relevantly recorded that the Applicant was charged with driving under the influence and driving an unregistered vehicle. The description “arrested” accorded with the statement in the Court Brief that the Applicant had been detained, because an arrest consists in the seizure of a person with a view to their restraint with respect to an alleged offence: Lewis v Norman [1982] 2 NSWLR 649 at p 655 (Enderby J). The fact that the charge for driving an unregistered vehicle was later dropped does not render that finding illogical or irrational because the Tribunal did not purport to say that the Applicant was convicted.

(g)    Intoxication: The statement that “the [District] Court noted that the Applicant’s capacity to control a vehicle on 25 July 2023 with such a ‘high’ level of intoxication ‘would have been severely impaired’” was an error (ART decision at [41(a)]) (emphasis added). The District Court sentenced the Applicant for both the index offence (committed on 10 September 2021) and the drink driving offence (committed on 25 July 2023). The sentencing remarks recorded that: (i) the breath test on 25 July 2023 found that the Applicant was “0.165 percent”; (ii) that reading was “considerably over the legal limit for driving a vehicle”; (iii) an opinion had been expressed with respect to the index offending that the Applicant’s “capacity to control a vehicle with that level of intoxication, at 0.121, would have been severely impaired”; (iv) the Applicant’s level of intoxication on the occasion of the index offending was “high”; and (v) on 25 July 2023, the Applicant “again drove with a significant blood alcohol reading”. Those statements left open the finding that the Applicant’s capacity to control a vehicle on 25 July 2023 with such a high level of intoxication would have been severely impaired. That is because the sentencing remarks recorded the opinion that the Applicant’s capacity to control a vehicle when the index offending occurred (in September 2021) had been “severely impaired” by what was characterised as a “high” blood alcohol level (0.121 per cent) which nonetheless was lower than his blood alcohol level when driving on 25 July 2023. That is to say, if the Applicant had been severely impaired while driving a vehicle with a blood alcohol level of 0.121 per cent, it was open to the Tribunal to find that he would have similarly been severely impaired while driving a vehicle with a blood alcohol level of 0.165 per cent. But while that finding was open, the Tribunal made an error in stating that the District Court noted those matters with respect to the 25 July 2023 offence because they were noted only with respect to the index offence on 10 September 2021.

(h)    Aggravation: The sentencing judge referred, amongst other matters, to the Applicant committing a drink driving offence whilst on bail before stating, “I have come to the conclusion that you should only be released into the community under the constraints and the supervision and support that comes from a parole order”. It was open to the Tribunal on the sentencing remarks to find that the District Court characterised his drink driving offence whilst on bail as an “aggravating feature” of his conduct. That is because it was one of the factors that led to the District Court imposing more onerous terms for his release to the community.

(i)    Primary consideration 5: I do not accept that [92] of the ART decision is to be understood as a finding that the Applicant engaged in repeated offending in Australia that harmed others. The ART decision at [35]-[44] contains a detailed overview of the Applicant’s criminal history. It is plain from that overview that the Tribunal appreciated that the only offending by the Applicant in Australia that harmed others was the index offence, because the overview only referred to the index offending causing such harm. Read in context, the statement at [92] is sensibly understood as a finding by the Tribunal that the Applicant had persistently breached Australian laws (which he had), and that his breach of Australian laws had harmed others (which the index offending had).

45    In summary, the Tribunal made three errors in its consideration of the nature and seriousness of the Applicant’s conduct relevant to primary consideration 1: that in sentencing the Applicant for the index offence the District Court found that the Applicant had driven at high speed for about 10 kilometres (error 1); that the Applicant was fined for breach of bail (error 2); and that the District Court noted in sentencing the Applicant for the drink driving offence that the Applicant’s capacity to control a vehicle with such a high level of intoxication would have been severely impaired (error 3).

46    The Applicant contends that the errors were adverse to him. I accept that characterisation with respect to error 2 because a fine is a penalty, but a recognisance is not. I do not accept that errors 1 and 3 were materially adverse to the Applicant. Error 1 because driving at a high speed is only objectionable when it is dangerous driving. Error 3 because while the Tribunal misstated what the sentencing remarks noted with respect to the drink driving offence, the conclusion that the Applicant’s capacity to control the vehicle on that occasion with such a high level of intoxication (0.165 per cent) was open on the material before the Tribunal as detailed at [44(g)] above.

47    The errors were made in the course of the Tribunal’s consideration (at [35] to [40] of the ART decision) of the nature and seriousness of the Applicant’s conduct. The Tribunal went on to state:

The nature and seriousness of the conduct: Tribunal findings

[41]    The following findings are made:

(a)    The Applicant’s assault offence in July 2013 while living in New Zealand falls within the meaning of crimes viewed as ‘very serious’ under cl 8.1.1(1)(a)(i) of the Direction. The Tribunal does not accept the Applicant’s evidence that he was convicted of this offence only because he was present when police arrived. That said, this assault is his only recorded violent crime, occurred more than a decade ago, and has not been repeated. This ameliorates the weight otherwise attributed to a violent offence.

(b)    No weight is placed on the Applicant’s breach of bail offence in Australia for which a conviction was not recorded.

(c)    Significant weight is placed on the totality of the Applicant’s multiple drink driving, careless vehicle operation, and speeding offences since 2010. His reckless conduct on New Zealand and Australian roads is frequent and there is a trend of increasing seriousness, culminating in him causing very significant injuries to an innocent road user. Pursuant to cl 8.1.1(1)(d) of the Direction, considerable weight is placed on the Victim Impact Statement, which amply conveys the harm caused. The repeat nature of some of the Applicant’s crimes, such as drink driving, reflects a persistent disregard for the law and rights of other road users. The adverse cumulative effect of his conduct has imposed significant costs and consequences.

(d)    Imprisonment is the most severe punishment available. The five-year sentence imposed on the Applicant amply conveys the seriousness of his crime. This is so regardless of where it sits in the context of a statutory maximum.

(Footnotes omitted)

…

[44]    The totality of the Applicant’s offending is very serious.     

48    A number of matters emerge from that part of the ART decision. First, the Tribunal expressly stated that it placed no weight on the breach of bail offence the subject of error 2 (ART decision at [41(b)]. Second, error 1 and error 3 did not relevantly inform the Tribunal’s findings with respect to the nature and seriousness of the Applicant’s conduct relevant to primary consideration 1 (ART decision at [41(c)] and [41(d)]).

49    Rather, the reasoning with respect to the index offence was founded on it causing “very significant injuries to an innocent road user” and the five-year sentence imposed “amply convey[ing] the seriousness of his crime” (ART decision at [41(c)] and [41(d)]. That reflected earlier findings, not put in issue, that the road user experienced “significant and life-changing injuries” including a broken femur in several places and had described “memory loss, severe disabling impacts, constant pain and a slow recovery” (ART decision at [38]). The reasoning with respect to the drink driving offence related to it being a “repeat” or “multiple” crime which “reflects a persistent disregard for the law and rights of other road users” (ART decision at [41(c)]). That reflected earlier findings, not put in issue, that the Applicant’s first drink driving offence in Australia was in 2016, which was followed by the index offence in September 2021 (where he recorded a blood alcohol reading of 0.121 per cent after being arrested) and the drink driving offence in July 2023 (where he recorded a blood alcohol reading of 0.165 per cent) (ART decision at [37]-[38]).

50    There followed, the Tribunal’s consideration of risk and the finding that primary consideration 1 “weighs substantially against revocation”: ART decision at [62]. As has been noted, that conclusion was reached because the Tribunal considered that the Applicant was, at least, at moderate risk of re-offending and causing significant harm to another road user or pedestrian and the nature of harm from such conduct fell into a category “where any risk of repeat is unacceptable”: ART decision at [104].

51    That Tribunal reiterated that finding in its conclusion, stating:

[104]    The totality of the Applicant’s offending is very serious. His residence in Australia since 2013 is contextualised by persistent alcohol abuse and increasingly serious crimes. He constitutes at least a moderate risk of reoffending and causing significant harm to another road user or pedestrian. The nature of harm from such conduct falls into a category where any risk of repeat is unacceptable. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, and he should expect to forfeit the privilege of remaining in Australia.

52    The Tribunal concluded:

[108]    Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the two primary considerations favouring non-revocation [primary considerations 1 and 5] considerably outweigh the combined weight to be given to the countervailing primary and other considerations.

53    As appears from that overview of the ART decision, the errors were not connected to the reasoning process by which the Tribunal reached a state of satisfaction that there was not “another reason” why the mandatory cancellation should be revoked: Djokovic at [34]. The critical findings leading to that conclusion were, instead, concerned with the harm the Applicant caused by the index offending, his repeated offending involving alcohol and the unacceptability of exposing the Australian community to any risk that he would re-offend. It follows that I am unpersuaded that an irrational finding was made on the way to the decision under s 501CA(4) of the Act on a point that was critical or that the decision itself was not one which was open on the material.

54    Moreover, I am not satisfied that the errors, taken together, support a conclusion that the state of satisfaction the Tribunal reached with respect to s 501CA(4)(b)(ii) of the Act was without an intelligible justification, illogical or irrational: WCJS at [114]. In the context of the detailed consideration given by the Tribunal to the Applicant’s relatively extensive criminal and traffic history in Australia and New Zealand, the errors, even in aggregate, are not sufficient to support a conclusion that the reasons as a whole do not meet the required implied standard of reasonableness: cf, CWRG at [16]. They were lapses of logic with respect to matters of minor moment in the reasoning process undertaken by the Tribunal in dealing with primary consideration 1.

55    For all of these reasons, the Applicant has failed to meet the “very high” threshold standard of demonstrating that the ART decision is affected by jurisdictional error for illogicality or irrationality: Masi-Haini at [49]-[54].

56    Ground 2 is not established.

conclusion

57    For all of the above reasons, the application will be dismissed. There is no reason why costs ought not follow the event. The Applicant will be ordered to pay the First Respondent’s costs of the proceeding, to be assessed, if not agreed.

Associate:

Dated:    14 September 2026