Berryman v Minister for Immigration, Citizenship, and Multicultural Affairs [2025] FCA 1210

1. Pursuant to s 501(2) of the Migration Act, the Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. That power may be delegated by a Minister under s 496 of the Migration Act, as it was in this case.
2. A person does not pass the character test if, relevantly, the person has a 'substantial criminal record': s 501(6)(a). A person has a 'substantial criminal record' if, amongst other reasons, the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c). There is no question in this case that it was open to the delegate to reasonably suspect that the applicant did not pass the character test, to fail to be satisfied that the applicant did pass that test, and therefore to exercise the discretion conferred by s 501(2) to cancel the applicant's visa.
3. Because the discretion conferred by s 501(2) was exercised by a delegate of the Minister, the applicant was entitled to apply to the AAT, pursuant to s 500(1)(b) of the Migration Act, for a review of the delegate's decision to cancel his visa. The AAT was then required to carry out its review in accordance with the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), subject to presently irrelevant modifications effected by the Migration Act.
4. The AAT's decision on review was a 'privative clause decision': s 474(2) of the Migration Act. Accordingly, it was not open to the applicant to appeal the decision of the AAT to this Court, on a question of law: s 43C of the AAT Act. However, the AAT's decision is amenable to review by this Court for jurisdictional error: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39 at [3].
5. Although s 501(2) of the Migration Act does not set out any criteria to guide the exercise of the discretion to cancel a visa, s 499(1) provides that the Minister may give written directions to a person or body having functions or powers under that Act, where those directions are about the performance of those functions or the exercise of those powers. The AAT was required to comply with any such directions when exercising the discretion in s 501(2).
6. At the time it carried out its review of the delegate's decision to cancel the applicant's visa, the AAT was required to comply with Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110): Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 270 CLR 430 at [7].
7. The objectives of Direction 110 are expressed in para 5.1. Relevantly, subparas (1) and (2) of para 5.2 provide as follows:

(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.

(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

1. The Direction also sets out several principles at para 5.2, which are expressed to provide the framework within which decision-makers should approach their task of, relevantly, deciding whether to cancel a non-citizen's visa under s 501 of the Migration Act. Paragraph 5.2 also provides that:

The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 ... of the Act are identified in Part 2.

(emphasis added)

1. Part 2 of the Direction contains various sections that guide decision-makers in making a decision. At the start of Part 2 is section 6, which is titled 'Making a decision', and provides that:

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

(emphasis added)

1. Section 7 then provides as follows:

7. Taking the relevant considerations into account

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

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

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

1. The 'primary considerations' referred to in para 7(2) are set out in section 8 of the Direction:

8. Primary considerations

In making a decision under section ... 501(2) ... the following are primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

1. In the circumstances of this case, it is only necessary to refer to the first of those primary considerations. In the context of that primary consideration, Direction 110 requires that decision-makers give consideration to the nature and seriousness of the non-citizen's conduct to date (para 8.1.1), and to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2).
2. Insofar as decision-makers are required by Direction 110 to consider risk to the Australian community, para 8.1.2 provides as follows:

8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the non-citizen reoffending; and

2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

3. where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. The AAT was also required to take into account certain other considerations, where relevant, including the legal consequences of its decision, the extent of any impediments that would be faced by the applicant if he were to be removed, and any impact on Australian business interests: section 9 of Direction 110.
2. Having summarised the relevant legislative context in which the AAT decided to affirm the delegate's decision to cancel the applicant's visa, it is then necessary to explain why the AAT reached that decision.

The AAT's decision to affirm the delegate's decision to cancel the applicant's visa

1. Because of the relatively confined nature of the applicant's ground of review, an extensive summary of all aspects of the AAT's decision to affirm the delegate's decision to cancel the applicant's visa is not required.
2. The AAT identified that there were two issues that it was required to consider. Firstly, the AAT recognised that it was required to consider whether the applicant had satisfied it that he passed the character test. Secondly, the AAT was required to consider whether it should exercise the discretion conferred by s 501(2) of the Migration Act and affirm the delegate's decision to cancel the applicant's visa.
3. At the hearing before the AAT, several documents were admitted into evidence. The applicant also adduced both written and oral evidence from a number of witnesses. It is only necessary to refer to one of those witnesses, Mr Chafic Awit, a psychologist who authored a report which concerned the applicant. However, before summarising Mr Awit's evidence, it is convenient to first give a broader summary of the AAT's reasons for deciding to affirm the delegate's decision.
4. After concluding that it was satisfied that the applicant did not pass the character test, the AAT considered the question of whether the applicant's visa should be cancelled in the exercise of the discretion. The AAT approached its task in that respect by taking into account the various considerations identified in Direction 110 that were relevant to the applicant's case.
5. It is sufficient to only provide a very high-level summary of the AAT's findings in respect of most of the various considerations that are the subject of sections 8 and 9 of Direction 110. Specifically, it is enough to note that in relation to the considerations in section 8 of Direction 110, the AAT found that:

(a) the protection of the Australian community weighed strongly in favour of cancellation of the applicant's visa (para 8(1));

(b) the 'family violence consideration' weighed strongly in favour of cancellation of the applicant's visa (para 8(2));

(c) the strength, nature and duration of the applicant's ties to Australia weighed strongly against cancellation of the applicant's visa (para 8(3));

(d) the best interests of the applicant's minor grandchildren and great-grandchildren weighed slightly against cancellation of the applicant's visa (para 8(4)); and

(e) the expectations of the Australian community weighed strongly in favour of cancellation of the applicant's visa (para 8(5)).

1. The AAT also found that the other considerations referred to in section 9 of Direction 110 should either be given neutral weight or that, in one case, they weighed slightly against cancellation.
2. After weighing all of those considerations, the AAT concluded that it was satisfied it should exercise the discretion conferred on it by s 501(2) of the Migration Act to cancel the applicant's visa. On that basis, the AAT formed the view that the correct or preferable decision was to affirm the delegate's decision to exercise the discretion conferred by s 501(2) and cancel the applicant's visa.
3. Given the focus of the applicant's sole ground of review, it is necessary to say something further about the AAT's findings in the context of its consideration of the matter referred to in para 8.1 of Direction 110, which was concerned with the protection of the Australian community.
4. In reaching its conclusion that the protection of the Australian community weighed strongly in favour of cancellation of the applicant's visa, the AAT was required by para 8.1.2 of Direction 110 to assess the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. As can be seen from the text of para 8.1.2, in assessing that risk, the AAT was required to have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct: para 8.1.2(2)(a). In that context, the AAT found that,

should the Applicant commit further similar offences, in particular violent offences, family violence, driving offences and drug-related offences, this would clearly result in further serious harm that may cause considerable and widespread physical, psychological and economic harm to members of the Australian community.

1. The AAT was also required by para 8.1.2(2)(b) of Direction 110 to have regard, cumulatively, to the likelihood of the applicant engaging in further criminal or other serious conduct. In this respect, the AAT made the following finding:

Overall, having considered all of the evidence, the Tribunal is of the opinion that there is a real risk that the Applicant will reoffend in a similar manner. Given the significant risk of harm from violent offending, if the Applicant does engage in offending consistent with his previous offending, this would present a considerable risk of harm to the community in general. Further, the Tribunal agrees with the [Minister's] contention that the scourge of family violence in Australia is extremely serious, and that, as such, any risk of future family violence should be considered unacceptable.

1. As the ground of review is concerned with the question of whether the AAT fell into jurisdictional error in reaching that conclusion, the AAT's reasoning process in that context must be further exposed.
2. The AAT commenced its reasoning in this respect by noting that the applicant contended, in effect, that he was unlikely to engage in further criminal offending or other serious conduct. The AAT recorded that the applicant had accepted that the need to protect the Australian community was a factor that weighed against him retaining his visa. However, the AAT also observed that the applicant had argued that he had reformed and rehabilitated. According to the applicant, central to this change in him had been his commitment to living in the community and within his family according to the teachings of his religious faith. The applicant also relied on the fact that he had not used any drugs or committed any offences for over four years, coinciding with his re-engagement with his church.
3. The AAT also noted that the applicant relied on the opinion of Mr Awit. In that respect, the AAT said:

Mr Awit's professional opinion is that the Applicant's risk of reoffending is unlikely and that the Applicant's awareness of the struggles his wife and children would face if he was removed act as a further deterrent from reoffending.

1. In the AAT, the Minister submitted that there was insufficient evidence that the applicant's risk of recidivism was low. In that respect, the Minister drew the AAT's attention to the following matters:

(a) there was 'no evidence of a psychologist regarding the applicant's risk of recidivism';

(b) various judicial officers had made remarks when sentencing the applicant that suggested that he had failed to accept responsibility for some of his offending behaviour, that he had ignored court orders, and that he appeared to demonstrate little regard for the consequences of his actions;

(c) in a letter written in response to an invitation from the Department of Home Affairs to comment on information indicating that he may not pass the character test, the applicant had denied aspects of his criminal history, including his possession of drugs; and

(d) although the applicant claimed to have rehabilitated from his criminal offending, there was no evidence that he had participated in any drug, family violence or criminal offending rehabilitation programs.

1. After recording the respective submissions that had been made by the parties, the AAT then gave consideration to the likelihood of the applicant engaging in further criminal or other serious conduct, as it was required to do by para 8.1.2(2)(b) of Direction 110. In that respect, the AAT commenced its consideration with the following observations at [96] of its reasons for decision:

The Applicant is asking the Tribunal to accept the church as the Applicant's source of rehabilitation and reform and in turn, relies on the fact of his claimed complete rehabilitation in submitting he will not reoffend. The Applicant accepts that he has asked this state of affairs be accepted in circumstances where he has not completed any formal rehabilitation of any kind, considers 'reform and rehabilitation is not to be shown by certificates' and presents the Tribunal with no opinion from a forensic psychologist or psychiatrist regarding risk of reoffending: (emphasis added)

And ultimately, you know, no matter which way someone looks at it, you have to make a choice to change your behaviour. I don't think I need to be a behavioural scientist to say that, or have done a course. And doing a course doesn't mean you're rehabilitated just because you have done a course. It's a question of choice, and whether you want to choose to change. Now, that choice may arise, and the ability to change may arise because of formal courses, where you recognise your failings, if I want to put it that way, or weaknesses, and your strengths, or it may also arise by another way.

And in this case, by way of religious instruction, but also involvement with the church. So it wasn't just religious instruction; it was his involvement in the church as a whole. And it sort of runs into the next point about the witness testimony. My respectful submission is that first-hand evidence, observing somebody in their interactions with another person, is relevant evidence that should be taken into account. The evidence from the witnesses didn't just come from family members, but from senior members of the church, and also, in one case, a serving police officer of 29 years who has been operational the whole 29-year period.

... He was at large in the community for five years before he got detained without any reoffending. And the observations of those from the church who have spoken about his journey and his reform are consistent with his conduct in the community at large, where he has been licenced to drive heavy vehicles, he has been in a residence where there are drug users and other challenges which may have tipped other people the other way, but not him ...

(original emphasis)

1. The quote that appears in this passage of the AAT's reasons was taken from the oral closing submissions made by the applicant's counsel at the AAT hearing.
2. In a footnote at [96] of the AAT's reasons, the AAT observed that 'Mr Awit is a General Psychologist who consulted with the Applicant on two occasions, being on 24 July 2024 and 25 July 2024 and had no prior treating relationship with the Applicant'. This reflected what Mr Awit had said when he was cross-examined by the Minister's counsel.
3. The AAT then said that it considered that the weight to be placed on the applicant's claims of total rehabilitation should be mitigated by several factors. Those factors were as follows:

(1) The applicant's church would not be a sufficient protective factor against him reoffending in future because, in effect, it had not been a sufficient protective factor in the past.

(2) The applicant's progression through the various levels of his church did not establish the actual rehabilitation that took place.

(3) Although the applicant has not offended in almost five years, this period followed a lengthy period of continuous offending including violent offending and family violence.

(4) The applicant lives with three drug users and therefore, without having undergone any drug rehabilitation program, there is a possibility that the applicant may engage in further drug use.

(5) The applicant has not undergone any psychological intervention for his depression, which in Mr Awit's opinion was a contributing factor to the applicant's offending. Accordingly, the AAT was not satisfied that the applicant has sufficiently addressed his mental health concerns, or indeed that he considered there was a need for it to be addressed.

(6) The AAT was not convinced that the applicant would not commit further driving offences. In that respect, the AAT noted that he had previously offended by driving a car to maintain his employment and financially support his family, and that his wife, son, daughter and grandson continue to be financially dependent on him.

(7) The AAT was unpersuaded by the evidence of several lay witnesses, who attested to the applicant's reform. Specifically, the AAT was unwilling to place any real weight on this evidence because it was lacking in detail. The AAT also noted that as the witnesses had only recently become aware of the full extent of the applicant's offending history, this called into question the claimed closeness of their relationship with the applicant and whether the applicant had concealed his offending from his family and friends.

(8) The AAT doubted the applicant's claim that he was remorseful for his offending behaviour, noting that he had 'somewhat cavilled with the facts of his offending while under cross-examination'.

1. Finally, and in a passage that is central to the applicant's complaint in his application for review, at [97(h)] of its reasons for decision, the AAT referred to the following matter that it also considered mitigated the weight to be placed on the applicant's claims of total rehabilitation:

As noted above, Mr Awit is a General Psychologist who consulted with the Applicant on two occasions, being on 24 July 2024 and 25 July 2024 and had no prior treating relationship with the Applicant. This lessens the Tribunal's confidence in his opinion that the Applicant is unlikely to reoffend and is a very low risk of relapse into substance use and leaves it in a position where it is without forensic opinion on risk of reoffending based on specialist knowledge or expertise.

(footnotes omitted)

1. The reference to something having been 'noted above', was a reference to the footnote that I identified at [37] of these reasons.
2. Having summarised the AAT's reasons for reaching the conclusion that it should exercise the discretion conferred on it by s 501(2) of the Migration Act to cancel the applicant's visa, I will now identify the applicant's ground of review.

1. The applicant's ground of review is in the following terms:

The decision of the Second Respondent was affected by a jurisdictional error in that it failed to understand that Mr Awit had sufficient expertise to give the opinions that he did concerning the risk of the Applicant reoffending and as a result of this misunderstanding failed to consider, or give sufficient consideration to, the opinion of Mr Awit on this issue.

1. As the applicant's counsel eventually made clear, the focus of this ground is on the paragraph of the AAT's reasons that I have reproduced above at [39]. The applicant essentially contends that this paragraph of the AAT's reasons demonstrates that the AAT misunderstood Mr Awit's evidence, and that it thereby fell into jurisdictional error by failing to carry out its statutory task of reviewing the delegate's decision to cancel the applicant's visa under s 501(2) of the Migration Act.
2. Before explaining that contention in more detail and summarising the Minister's submissions in response, it is convenient at this point to summarise the evidence that Mr Awit gave in the AAT.

1. Mr Awit's evidence in chief consisted of him adopting his report dated 26 July 2024. In that report, Mr Awit said that he was a 'Registered Psychologist'. He also said that he had achieved various academic qualifications, namely, Bachelor of Arts (Psychology & Sociology) (University of Sydney), Graduate Diploma of Psychological Studies (University of Western Sydney), and Masters of Health Sciences (Behavioural Sciences) (University of Sydney). The report also included a statement by Mr Awit that:

According to the Australian Board of Psychology, General Registration as a Psychologist is an unrestricted License to practice Psychology across Australia. This includes administering psychometric testing, interpreting the results of psychometric testing, as well as diagnosing psychological conditions, and treating psychological conditions.

1. Mr Awit's curriculum vitae was attached to his report. Included in that document was the following information:

Mr. Chafic Awit has been practicing Psychology for the past 15 years. He is currently employed in private practice fulltime. He graduated from a Masters in Health Sciences (Behavioural Sciences) from the University of Sydney in 2008. He obtained Provisional Registration as a Psychologist from the Psychology Board, which is governed by the Australian Health Practitioner Regulation Agency (AHPRA) in 2009. Mr. Chafic Awit completed a two-year internship as a Provisional Psychologist at Psychmatters, as well as a Senior Rehabilitation Case Manager position at Injury Treatment. In 2011 Mr. Chafic Awit obtained Full Registration as a Psychologist.

Mr. Chafic Awit has comprehensive experience of assessing and treating a wide range of mental health problems. Mr. Chafic Awit specializes in both assessments of adults and children. He regularly undertakes assessments in the context of Private law disputes, along with Forensic Issues (risk assessment, sentencing reports, and Psychological assessments). Mr. Chafic Awit also regularly undertakes Workers Compensation, Compulsory Third Party, and Personal Injury work.

(emphasis added)

1. Mr Awit's curriculum vitae also relevantly noted that in 2011, he was awarded 'General Registration (Psychologist), APHRA'. Further, it recorded that in the various roles in which he had been employed since 2009, his roles 'entailed assisting clients with', amongst other things, 'Court Sentencing Reports'.
2. After acknowledging that he had read the AAT's guidelines on giving expert and opinion evidence, and then noting that his report was required because the applicant was seeking to challenge the delegate's decision to cancel his visa, Mr Awit expressed his opinion that the applicant was suffering from Major Depressive Disorder, and that he had a probable prior diagnosis of Major Depressive Disorder and Mild Substance Use Disorder. In that context, Mr Awit also indicated that his psychological opinion was based on his assessment of the applicant, on his review of the applicant's criminal record, on his own review of various documents on which the applicant relied in the AAT, and on his own conversations with the applicant's children.
3. Mr Awit then set out, in some detail, information about the applicant's history. This included information about the applicant's family history, his employment record, his history of alcohol and drug use, his psychosocial history, and his criminal history. Mr Awit also recorded the results of a mental health examination that he had conducted on the applicant, as well as the results of some psychometric testing that was used for 'screening purposes'. According to Mr Awit, the psychometric testing was carried out using the 'Depression Anxiety Stress Scale 21'. Mr Awit said that this was a 'self-report measure of Anxiety, Depression and Stress' that is used widely by psychologists and psychiatrists, as well as by general practitioners, as a severity measure of an individual's depression, anxiety and stress.
4. In his report, Mr Awit expressed the following conclusions:

Conclusions and Recommendations:

1. [The applicant] has been held in a detention centre over the past month, and has reported minor symptoms of Anxiety. It is the professional opinion of the writer that these relate to the immigration process he is currently being subjected to. These symptoms include (feeling on the edge, and uncontrollable worry).

2. The writer is of the professional opinion that [the applicant's] Depression, played ... a significant role during the offending period of 2006-2019. [The applicant's] criminal history commenced after shortly arriving in Australia. It is difficult to gage whether [the applicant] was struggling with any Psychological condition around this period, as he struggled to think back to this time as it was over forty (40) years ago. He recalls some hardships initially when trying to settle in Australia (especially financial) and advised that it took some time before he felt things were going well. [The applicant] feels that he was quite settled between 1996 - 2006, up until the passing of his wife. Depression is well documented in Psychological Literature to lead to cognitive impairments, which in itself can lead to poor decision-making.

3. [The applicant] advised that the thought of being deported from Australia is causing him significant concern. His whole life is here. His parents were buried here, his wife was buried here, his siblings are all here, and all of his children except two (2) are here. He advised that four (4) of his children are still dependent on him, especially [two of his children]. He is certain that they will be significantly impacted if [he] is deported, and that they are already struggling presently.

4. [The applicant] reports improvement of his Depression symptoms over the last five (5) years, and also reports nil drug use during this time. He reports attending Church regularly and continues to be present in his children's life. The criminal record reveals that he has not reoffended in the last five (5) years. This appears to coincide with the improvements he has reported over the last five (5) years. It is the professional opinion of the writer that [the applicant's] risk of reoffending is unlikely. It would be appreciated if you could consider the information in this report when making your decision in relation to [the applicant's] application. [The applicant] is aware of the struggles his estranged wife and children would face if he is deported, and this is acting as a further deterrent for him to reoffend.

(emphasis added)

1. As I have already mentioned, Mr Awit was cross-examined by counsel for the Minister. The cross-examination was relatively short. Insofar as it concerned the risk of the applicant reoffending, Mr Awit's cross-examination may be set out in full:

Mr Awit, firstly, are you a qualified forensic or clinical psychologist?---I'm neither. I'm a qualified general psychologist.

And how long did you speak with [the applicant] for the purpose of the assessment?---I spoke to [the applicant] on two occasions. The first of which occurred- sorry. Two occasions. They were both over an hour and a half each. It was initially meant to be one assessment, but the information provided was a lot more than I could fit into one session, so there was a second session that also ended up going on for an hour and 45 minutes. So these occurred on 24 July and 25 July. The following day.

And did you have any prior treating relationship with [the applicant]? Had you ever been a psychologist to him previously?---No.

You opined that [the applicant] has a mild substance use disorder. Do you think that there's any risk that he might relapse in the presence of other drug users?---Given the reported history that there hasn't been any relapse in the last five years, and the fact that the reported history shows that the usage over the years fluctuated but never was to the extent that I would consider moderate or severe, I doubt that.

But would you say it might be possible?---Is it possible that he may relapse and fall into drug addiction in the future, or- are you asking drug addiction, or use illicit substances?

I'm asking about drug use more generally?---Okay. Look, one can never say that it's not possible. But, you know, the lowest I could say is a very low risk. But in the general sense of when it comes to any form of addiction, one can never, you know, truly say 'no chance'. However, given the improvements [the applicant] has, you know, reported in his life, and the direction that he has taken over the last five years in relation to those improvements, I doubt that that could occur. I doubt that it would occur. But I can't, with 100 per cent certainty- nor could anybody - say that; that it wouldn't occur. But I highly doubt that it would. It would be a very low chance of that occurring. He has already been exposed to that, you know, environment, you know, with the children that he takes care of, and he hasn't relapsed in the last five years. So it's my opinion that, you know, that it's very, very, very unlikely that that would happen.

Do you consider that substance use or mental health conditions contributed to his past criminal conduct?---Given the level of what that reported drug use was, you know, in the past, I don't- in my opinion, that wasn't the main contributing factor to his- a lot of his previous criminal convictions. I mean, there's two possession charges over the period of time of offences, but in relation to the majority of those offences, I would actually peg the depression condition as the main contributing factor, not the actual substance use disorder. I mean, in relation to the two possession charges, obviously that was possession of drugs, and that would have come from the fact that he was using drugs. But the rest of the criminal history, there, in my opinion: most of that would have been in relation to his depression and other life circumstances at the time. Which is what I've outlined in the body of my report.

Yes. So- but you would agree that his mental health conditions contributed to his offending?---Well, I would agree that the major depressive disorder would have contributed to the offending. Not so much, I mean, the drug condition itself. Not so much. Except for the two charges that you obviously see in his criminal history for possession.

And do you think that the applicant requires ongoing mental health treatment, if he were to be released into the Australian community, to prevent recidivism?---So in my opinion it's not necessarily to prevent- what do you call it- him reoffending. I did write, towards the last part in my report, in the treatment section, that he would benefit from some short-term psychological intervention with a psychologist. This is mainly to still deal with the level of depression that I think that he still has. I mean, the level, at present, you know (indistinct) as high as what has been reported in the past. But, you know, with the lowering of that level of depression, one could also argue, given the fact that that's where I pegged, you know, a lot of the previous issues that he has had, leading to those previous offences, you know, one would argue that, yes, if he did deal with his current depression, that would further reduce his risk of reoffending. But I don't think it's necessary to reduce his risk of reoffending; it's more pegged at assisting him to reduce that level of depression that he's still suffering from. But one would also argue that he has been detained for a period of time, so the present level of depression that he's currently experiencing could be from that, you know, being detained, and also the apprehension, towards potentially being deported and, you know, separated from his family. But nevertheless, I would recommend at a bare minimum a short term- some short-term psychological intervention if released back into the community.

1. The AAT evidently accepted various aspects of Mr Awit's evidence. For example, the AAT appeared to accept Mr Awit's diagnosis that the applicant was suffering from Major Depressive Disorder, and that he probably suffered from the same condition, together with Mild Substance Use Disorder, in the past: at [90]‑[91] of the AAT's reasons for decision. The AAT also relied on aspects of Mr Awit's evidence which, in the AAT's opinion, demonstrated an inconsistency in an aspect of the applicant's case: at [121(j)] of the AAT's reasons for decision.
2. Having summarised the salient features of Mr Awit's evidence, it is then necessary to briefly refer to the parties' respective contentions, before then proceeding to determine whether the applicant has established that the AAT fell into jurisdictional error.

1. The applicant says, in essence, that the AAT fell into jurisdictional error because it failed to carry out the statutory task that was entrusted to it, namely, to take into account the primary consideration in para 8(1) of Direction 110. In particular, the applicant submits that the AAT failed to assess the risk that the applicant may pose to the Australian community, and more specifically, failed to assess the likelihood of him engaging in further criminal or other serious conduct. The applicant says that the AAT failed to carry out that task because the AAT misunderstood that Mr Awit's opinion that the applicant's risk of reoffending was 'unlikely' was based on his specialised knowledge, which was in turn based on his experience in undertaking forensic risk assessments. As I have already said, the focus of the applicant's complaint in this respect is on [97(h)] of the reasons of the AAT, which I have reproduced at [39] of these reasons.
2. The Minister submits that the crux of the issue raised by the applicant's ground of review is whether the AAT misunderstood Mr Awit's 'qualifications and his role as an expert witness': para 12 of the Minister's Supplementary Submissions. Counsel for the Minister accepted that Mr Awit did have experience in providing forensic opinions and that if the AAT did misunderstand that Mr Awit did have that experience, then it would have fallen into jurisdictional error.
3. However, counsel for the Minister submitted that the AAT did not misunderstand Mr Awit's evidence. Specifically, counsel submitted that what the AAT said at [97(h)] of its reasons does not demonstrate that it failed to understand, and therefore failed to take into account, Mr Awit's evidence. Counsel submitted that what [97(h)] demonstrates is that in assessing the weight it was entitled to afford to Mr Awit's opinion, the AAT took into account the fact that there was a difference between the expertise of a forensic psychologist when compared to the expertise of a general psychologist in providing forensic risk assessments.
4. Ultimately, counsel for the Minister submitted that only an overly critical reading of the AAT's reasons, and [97(h)] in particular, could support an inference that the AAT misunderstood Mr Awit's evidence, on the basis that it misunderstood his qualifications to give an opinion about the applicant's risk of reoffending. In that regard, the Minister noted that the AAT had made extensive reference to Mr Awit's evidence and to his report, to which Mr Awit's curriculum vitae was attached.

1. Before dealing with the question of whether the AAT fell into jurisdictional error, it is necessary to look more closely at the legislative framework within which the AAT was required to conduct its review of the delegate's decision to cancel the applicant's visa.
2. As I have already explained, in carrying out its review under the relevant provisions of the AAT Act, the AAT was required by s 499(2A) of the Migration Act to comply with Direction 110: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33 at [1]. Subject to questions of materiality, failure to comply with the express requirements of Direction 110 'as to the considerations to be brought into account and the manner in which those considerations were to be weighed in deciding' whether to cancel a visa under s 501(2) of the Migration Act would constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6], which was cited with approval in Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98; (2023) 298 FCR 431 at [55].
3. In this case, the AAT was required by section 6 of Direction 110 to take into account the primary consideration identified in para 8(1) of that Direction. The content of that requirement is further expanded upon by para 8.1 of Direction 110. For present purposes, it is only necessary to note that para 8.1(2)(b) of Direction 110 placed an obligation on the AAT to consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. Further, and importantly, in assessing the risk that the applicant may pose to the Australian community, the AAT was required by para 8.1.2(2)(b) to 'have regard to ... the likelihood of the [applicant] engaging in further criminal or other serious conduct'. In discharging that obligation, the AAT was bound by para 8.1.2(2)(b)(i) to do so 'taking into account ... information and evidence on the risk of the [applicant] re-offending' (emphasis added).
4. It has been recognised that the AAT may fall into jurisdictional error by failing to take account of cogent evidence that provides substantial support to an applicant's case: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] (Bell, Gageler and Keane JJ). Whether such a failure will amount to jurisdictional error will depend on the importance of the evidence to the exercise of the AAT's function and on the seriousness of any error: Comcare v Simeoni [2024] FCAFC 31 at [43], citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]‑[112]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [68]‑[70]; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [52]‑[56]. See also Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [70]; and Jabari at [55]. As the AAT in this case was obliged by para 8.1.2(2)(b)(i) of Direction 110 to take into account information and evidence on the risk of the applicant reoffending, the importance of such information and evidence to the exercise of the AAT's function, and the seriousness of any error in failing to take such evidence into account, is self-evident.
5. When considered at a high level of abstraction, it may be accepted that the AAT took Mr Awit's evidence into account when it had regard to the likelihood of the applicant engaging in further criminal or other serious conduct, as it was required to do by para 8.1.2(2)(b) of Direction 110. As I have already observed, the AAT expressly referred to Mr Awit's opinions concerning the applicant's mental health, and his views about the role it played in the applicant's offending behaviour, in the context of its consideration of para 8.1.2(2)(b). The AAT also made specific reference to Mr Awit's opinion that it was unlikely that the applicant would reoffend. However, because Mr Awit's opinion about the applicant's risk of reoffending was a matter that it was required to take into account under para 8.1.2(2)(b)(i) of Direction 110, because it was evidence on the risk of the applicant reoffending, the AAT was required to understand Mr Awit's evidence about that issue.
6. That the AAT was required to understand Mr Awit's evidence about the risk of the applicant reoffending in order to comply with its obligation to take it into account for the purposes of para 8.1.2(2)(b)(i) of Direction 110 is consistent with what was said by the majority in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582. In that case, the plaintiff's visa had been cancelled pursuant to s 501(3A) and a decision was then made by a delegate of the Minister under s 501CA(4) of the Migration Act not to revoke that cancellation. Importantly, the power to revoke the cancellation of a visa pursuant to s 501CA(4) is enlivened if, amongst other things, the Minister invites the person seeking revocation to make 'representations' to the Minister under s 501CA(3).
7. In Plaintiff M1/2021, questions of law were stated for the opinion of the Full Court of the High Court, after the plaintiff sought a writ of certiorari to quash the delegate's decision. The dispute that fell to be resolved by the High Court was how the plaintiff's representations, made for the purposes of s 501CA(4), should be considered by the decision-maker. In that regard, Kiefel CJ, Keane, Gordon and Steward JJ held at [23]‑[24]:

It is, however, improbable that Parliament intended for that broad discretionary power [in s 501CA(4)] to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman [(1995) [1995] FCAFC 1726; 57 FCR 451 at 495], the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder.

(emphasis added, footnotes omitted)

1. Although these observations were concerned with a question about how a decision-maker should consider 'representations' made for the purposes of deciding whether to revoke the cancellation of a visa under s 501CA(4), the observations clearly apply a fortiori to the obligation imposed on decision-makers by para 8.1.2(2)(b)(i) of Direction 110. In that regard, the majority's reference in Plaintiff M1/2021 to the reasons of Kiefel J (as her Honour then was) in Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451 are of some significance, as to further explain why a decision-maker under s 501CA(4) must 'read, identify, understand and evaluate the representations'. As the Full Court recently noted in Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 at [156], Kiefel J's statements in Tickner v Champman were made in the context of an application under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and an express statutory requirement to 'consider'. As her Honour said in Tickner v Chapman at 495:

To 'consider' is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) [of the Aboriginal and Torres Strait Islander Heritage Protection Act] speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.

1. The word 'consider' is used as a synonym for the phrase 'take into account': see the entry for the word 'consider' in the Oxford Thesaurus of English. Accordingly, what was said in Tickner v Chapman, as expounded upon in Plaintiff M1/2021, is also applicable when decision-makers are required to have regard to the likelihood of a non-citizen engaging in further criminal or other serious conduct for the purposes of para 8.1.2(2)(b) of Direction 110.
2. It must also be noted that the majority in Plaintiff M1/2021 reached the conclusion that a decision-maker must 'read, identify, understand and evaluate' representations made for the purposes of s 501CA(4), even though that provision does not render every statement in a representation as a matter that is to be characterised as a mandatory relevant consideration. This may be contrasted with what is required by para 8.1.2(2)(b)(i) of Direction 110. As I have already explained, para 8.1.2(2)(b)(i) renders 'information and evidence on the risk of the non‑citizen re-offending' a mandatory relevant consideration; something that must be taken into account by a decision-maker exercising the discretion conferred by s 501(2), when having regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct.
3. The question that then arises is whether the AAT did understand Mr Awit's evidence and whether it therefore took it into account as it was required to do in accordance with para 8.1.2(2)(b)(i) of Direction 110. More specifically, the relevant question is whether [97(h)] of the AAT's reasons reveals that the AAT misunderstood Mr Awit's evidence about the risk of the applicant reoffending. Although I have already reproduced what the AAT said at [97(h)] of its reasons, it is convenient to again reproduce it here:

As noted above, Mr Awit is a General Psychologist who consulted with the Applicant on two occasions, being on 24 July 2024 and 25 July 2024 and had no prior treating relationship with the Applicant. This lessens the Tribunal's confidence in his opinion that the Applicant is unlikely to reoffend and is a very low risk of relapse into substance use and leaves it in a position where it is without forensic opinion on risk of reoffending based on specialist knowledge or expertise.

(footnotes omitted)

1. As I have said, this paragraph concerned one of a series of factors, a combination of which the AAT said mitigated the weight to be placed on the applicant's claims that he had rehabilitated. When read in context, at [97(h)] the AAT was dealing with the applicant's contention that, in effect, the AAT should find that it was unlikely that he would engage in further criminal or other serious conduct. In particular, it was dealing with the applicant's reliance in that respect on Mr Awit's 'professional opinion ... that the Applicant's risk of reoffending is unlikely ...', which was recorded at [93(c)] of the AAT's reasons for decision.
2. It is well-settled that that in considering a decision-maker's reasons, the court ought not construe them minutely and finely with an eye keenly attuned to the perception of error. Further, 'the reality [is] that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed': Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
3. Bearing those principles firmly in mind, I am of the view that in [97(h)] of its reasons, the AAT expressed its conclusion that its confidence in Mr Awit's opinion about the applicant's risk of reoffending had been 'lessened' because of three factors:

(a) Mr Awit was a 'General Psychologist';

(b) Mr Awit consulted with the applicant on two occasions; and

(c) Mr Awit had no prior treating relationship with the applicant.

1. In relation to the second and third of those factors, it is obvious that the AAT concluded that reduced weight should be attributed to Mr Awit's opinion about the applicant's risk of reoffending because he only had limited involvement with the applicant. That sort of reasoning was clearly open to the AAT. However, it is the first factor with which the applicant's ground of review is principally concerned.
2. I have already emphasised that because Mr Awit's opinion was evidence 'on the risk of the [applicant] re-offending', the AAT was obliged to take it into account under para 8.1.2(2)(b)(i) of Direction 110. There can be no doubt that it was for the AAT to determine the weight that was to be afforded to Mr Awit's opinion. Nevertheless, as I have already explained, in performing its statutory task it was necessary for the AAT to understand that opinion. More specifically, as Mr Awit purported to give an opinion based on his specialised knowledge as a psychologist, to understand his evidence the AAT not only needed to comprehend the opinion itself, but also the basis on which Mr Awit purported to be qualified to give that opinion.
3. The AAT reached its conclusion that the weight to be afforded to Mr Awit's opinion should be reduced at least in part, because Mr Awit was a general psychologist, and not a forensic psychologist. That this is the way the AAT reasoned is confirmed by the final sentence of [97(h)] of the AAT's reasons for decision, where it noted that it had been left 'in a position where it is without forensic opinion on risk of reoffending based on specialist knowledge or expertise', particularly when that sentence is viewed in light of the matters I set out above at [34] and [35]. In his oral submissions at the hearing in this Court, counsel for the Minister appeared to accept that this was the AAT's reasoning process.
4. It is evident that in reasoning in this way, the AAT made certain assumptions, using a category‑based approach to Mr Awit's evidence. In other words, the AAT's conclusion that its confidence in Mr Awit's opinion on the risk of reoffending was lessened was based on, in part, an assumption that as a general psychologist, Mr Awit did not have the same level of specialised knowledge as a forensic psychologist. However, there was unchallenged evidence before the AAT that Mr Awit professed to have such specialised knowledge. Although he was 'only' a general psychologist, Mr Awit had asserted in his curriculum vitae, which formed part of the evidence before the AAT, that he nevertheless had specialised knowledge based on his experience in providing risk assessments in a forensic context. As I have already noted earlier in these reasons, in his curriculum vitae Mr Awit said that he

regularly undertakes assessments in the context of Private law disputes, along with Forensic issues (risk assessment, sentencing reports, and Psychological assessments).

1. Mr Awit was cross-examined at the hearing before the AAT with a view to establishing that he was a general psychologist, and not a forensic or clinical psychologist, albeit without any attempt to adduce evidence about the relative degrees of specialised knowledge required for those roles. However, there was no challenge to the assertions Mr Awit made in his curriculum vitae that he did have specialised knowledge based on his experience in providing forensic risk assessments in a forensic context. Despite the absence of any challenge to this aspect of Mr Awit's evidence, the AAT's reasons disclose that its confidence in Mr Awit's opinion about the risk the applicant would reoffend was relevantly lessened only because he was a general psychologist and not a forensic psychologist, coupled with the limited exposure he had to the applicant.
2. The AAT was not required to refer to each piece of evidence before it: Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 at [45], citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [10] (Gleeson CJ), [33] (Gaudron J), [68] (McHugh, Gummow and Hayne JJ). However, as the Full Court said in MZYTS at [49]:

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

1. In carrying out its statutory task to review the delegate's decision under s 501(2) of the Migration Act and taking into account the relevant considerations in para 8.1.2 of Direction 110, it was up to the AAT to weigh Mr Awit's evidence. In weighing that evidence, it was perfectly legitimate for the AAT to make its own assessment of Mr Awit's asserted specialised knowledge, including by reference to the extent to which it was based on his training, study or experience. However, the fact that the AAT made no reference to Mr Awit's unchallenged evidence that he had specialised knowledge based on his experience in providing risk assessments in a forensic context, and formed the view that its confidence in Mr Awit's opinion about the applicant's risk of reoffending was lessened, in part, simply because he was a general psychologist and not a forensic psychologist, establishes that it misunderstood Mr Awit's evidence.
2. Had the AAT properly understood Mr Awit's evidence and, in particular, his evidence that he had the relevant specialised knowledge to opine on the risk that the applicant might reoffend, it is to be expected that the AAT would have explained why its confidence in Mr Awit's opinion was lessened notwithstanding the fact that his evidence about his specialised knowledge was unchallenged.
3. Counsel for the Minister, understandably, did not suggest that if I were to conclude that the AAT misunderstood Mr Awit's evidence, that such an error would not be jurisdictional because it was not material to the decision that was made. In any event, it is plain that the risk of the applicant reoffending was a consideration that loomed large in the exercise of the AAT's discretion. Expert opinion about that issue would be likely to be influential. Accordingly, I am satisfied that there is a realistic possibility that the decision that was made would have been different had the AAT understood Mr Awit's evidence, and the basis on which he purported to be qualified to opine about the risk of the applicant reoffending.
4. For these reasons, I would allow the application, and grant the relief sought by the applicant.

1. The AAT Act was repealed on 14 October 2024: Item 1 in Sch 17 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transitional Provisions). The AAT was then replaced by the ART: Administrative Review Tribunal Act 2024 (Cth). However, pursuant to Item 25 in Sch 16 of the Transitional Provisions, which applies to a proceeding in a court that relates to a decision made, or other thing done, by the AAT that has not been finalised before 14 October 2024, as is the case here, anything the Court could have done in relation to the AAT before that date may now be done in relation to the ART. Further, Item 10 in Sch 16 provides that where the AAT was a party to proceedings, after 14 October 2024, the ART is substituted for the AAT as a party to those proceedings.
2. Accordingly, and for the avoidance of doubt, I will make an order that the ART is substituted for the AAT as a party to these proceedings.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Vandongen.