Dayadaya v Minister for Immigration, Citizenship and Multicultural Affairs

LEGISLATIVE FRAMEWORK

1. Section 501(2) of the Act provides that the Minister may cancel a visa if the Minister reasonably suspects that a person does not pass the character test and the person does not satisfy the Minister that they pass the character test. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment for 12 months or more.
2. Pursuant to s 499(2A) of the Act, a person or body exercising powers under the Act is required to comply with any directions made by the Minister under s 499(1). In the present case, Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction), commenced on 3 March 2023 and is the relevant direction. Paragraph 5 is described as the preamble to the Direction and at 5.1(4), states that the purpose of the Direction is to guide decision makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 5.2 of the Direction sets out principles which provide the framework within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under s 501 or revoke a mandatory cancellation under s 501CA.
3. Paragraph 8 of Direction 99 sets out the primary considerations as follows:
4. Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
5. Whether the conduct engaged in constituted family violence (Primary Consideration 2);
6. The strength, nature and duration of ties to Australia (Primary Consideration 3);
7. The best interests of minor children in Australia (Primary Consideration 4); and
8. Expectations of the Australian community (Primary Consideration 5).
9. Paragraph 9 of the Direction 99 sets out four 'Other Considerations' to be taken into account where relevant:
10. Legal consequences of the decision (Other Consideration 1);
11. Extent of impediments if removed (Other Consideration 2);
12. Impact on victims (Other Consideration 3); and
13. Impact on Australian business interests (Other Consideration 4).

TRIBUNAL'S DECISION

1. The hearing before the Tribunal took place on 6 and 7 July 2023. The applicant appeared in person, and the Minister was represented by Clayton Utz.
2. The Tribunal set out details of the applicant's adult offending, which it noted began in 2012 and continued until as recently as 2023: TD [14] - [30].
3. On 18 October 2018, the applicant was convicted of wounding and two counts of wilful damage, each of which were domestic violence offences: TD [27]. On 2 October 2020, the applicant was convicted of dangerous conduct with a weapon and, on 10 February 2022, he was convicted of contravening a domestic violence order: TD [28] - [29]. From the evidence before the Tribunal, it also emerged that the applicant was sentenced for breach of a domestic violence order on 25 May 2023: TD [30].
4. The Tribunal considered the evidence before it, including letters from relevant organisations regarding the applicant's rehabilitation and letters of support from the applicant's partner, mother, sister, a person named Atleetza Smith and Mr R, the victim from the applicant's wounding offence: TD [31] - [45].
5. The Tribunal considered the applicant's IHMS records, which were tendered as an exhibit. It set out that the records disclose a history of mental health issues, including attempted suicide and self-harm, and a variable attitude to taking medication. In that regard, the Tribunal stated the following:
6. The Tribunal also has before it the Applicant's IHMS records. Those records disclose, among other things, a note of 8 May 2023 which recorded a history of mental health unit admissions with drug induced psychosis. He was described as "currently stable-declining to take oral antipsychotic medication". He had no sign of mental agitation or perceptual disturbance. He was "not keen" to take oral medication as he felt stable. He was also, recorded on 2 May 2023 as refusing to take medication.
7. A note of 4 May 2023 recorded that he last had contact with his daughter B about three years ago. He had tried to hang himself while living with his flatmate in 2017, and had burned his arm repeatedly with cigarettes. His suicidal thoughts were well before his son was born. There was a family history of mental illness as one of his sisters whom he did not name had been diagnosed with schizophrenia. He had ceased having monthly depot opting instead for tablets. Precipitants for psychosis had been non-compliance with medication and or substance misuse. He had a history of violence and aggression when unwell. He had reported looking at himself in the mirror and seeing a dark side of himself where he looked like a devil and a good side where he looked grey. On 12 April 2023 he was reported as having recently (2 weeks prior) used methamphetamine and occasionally cannabis. It was also reported "imp. Functional in the community psychosis does not seem significant. He had no contact with his biological father and thought his mother was his sister until 2016. He was reported as entering foster care at age 6, ran away from carers and grew up living on the streets, and was involved with gangs. He had been a bright student but his studies were effected by childhood hardships.
8. Asked about his mood he appears to be recorded as saying "Picture it like a volcano." He had had no suicidal thoughts in recent years. There were "no current mood, anxiety or psychotic symptoms" and he appeared to be a low risk of suicide or self harm.
9. The Applicant was reported as saying that he started having mental health issues in 2013 and was not using any substances at that time. His compliance with prescribed medication was described as "sporadic". He was reported as having used methamphetamines as well as Ecstasy (MDMA). His self harm included burning himself and cutting himself with a knife. …
10. The Applicant told the Tribunal that he suffered mental health issues, but was presently medicated, feeling well enough to proceed with the hearing, and not feeling in any way unwell, and had been so during his preparation for the hearing, and his mental health had not impacted the material he put before the Tribunal. The Tribunal invited him to inform it if he felt unwell at any stage of the hearing. In addition the Tribunal requested the representative for the Respondent, Mr Morris to assist in observing the Applicant's health for the purpose of ensuring a fair hearing. (Emphasis in original, footnotes omitted.)
11. At TD [130] - [136], the Tribunal stated the following in respect of the applicant's credibility (Credibility Paragraphs): Credibility of the Applicant
12. In assessing the credibility of the Applicant, the Tribunal has had regard for the fact that he lied to Police regarding the wounding incident, first claiming that Mr R had fallen over and injured himself. He further denied having caused the injury to Mr R's arm, and further denied that any knives had been used during the incident. The contemporaneous evidence as recorded by Police was that Mr R said that the Applicant had attacked him with a knife and the other witness had reported seeing the Applicant perform "a dragging motion" across Mr R's skin.
13. The Applicant also lied to the Police when he said that he had punched L's car when he had in fact used a sledgehammer on it.
14. The Applicant's past claims, such as that made before Judge Morzone and that made in correspondence to the Department about being a changed person, have not withstood the test of time.
15. Before the Tribunal, he made a similar claim about having learned lesson from the wounding incident but it was abandoned within minutes of being made.
16. It is clear from the remarks of Judge Morzone that the wounding of Mr R was preceded by a threat to kill him made by the Applicant who, on his own evidence was armed with two steak knives. Before the Tribunal, the Applicant claimed that the wounding of Mr R was an accident, but that assertion is convincingly contradicted by the evidence referred to, and is rejected. Likewise, his evidence before the Tribunal that he "accidentally" bit the scalp of a female police officer is rejected as preposterous.
17. Moreover, the Applicant's claim before the Tribunal of being consistently medicated whilst in detention is at odds with the IHMS records referred to above.
18. The Tribunal finds that the Applicant has made false statements in evidence before the Tribunal, and his evidence is rejected as unreliable save to the extent that it is expressly or implicitly accepted in these reasons. (Footnotes omitted.)
19. On the basis of the wounding offence, for which the applicant was sentenced to 18 months imprisonment, the applicant did not pass the character test. That was conceded by the applicant: TD [148]. The question was therefore whether the Tribunal should exercise the power to cancel the applicant's visa pursuant to s 501(2) of the Act: TD [150].
20. In its consideration of the protection of the Australian community from criminal or other serious conduct, the Tribunal noted that the applicant has committed numerous crimes which it characterised as being "very serious": TD [157] - [165]. After considering various relevant factors, including the very frequent nature of the applicant's offending, the Tribunal concluded that the nature and seriousness of the applicant's conduct weighs very heavily in favour of cancelling the applicant's visa: TD [155] - [187]. Specifically, the Tribunal found as follows at TD [175] and [178]: From the time that the Applicant attained his majority in 2011, he has committed many offences, and had no less than 13 sentencing occasions. The Tribunal characterises the Applicant's offending as very frequent. The Applicant's most recent sentencing episodes have seen the imposition of significantly lighter sentences than he received in 2018 for the wounding charge. His most recent offending appears to involve breaches of domestic violence orders against Ms S and his sister. Whilst the incidents themselves would not, in isolation be considered at the high end of such offending, they must be viewed in the context that they are the most recent instances of acts committed over a period of years in the face of court orders, and have been committed at a time when he knew cancellation of his visa was under consideration because of his past conduct. Such a history of offending demonstrates a brazen contempt for both the laws passed by the Parliament, and the courts whose orders he has ignored. Each successive contempt of a court order must be seen as more serious than the previous, as it demonstrates a deeply embedded cavalier defiance of the law, and the protection it is meant to give to the community. … The Applicant has shown himself over a lengthy period of time to be a person capable of very serious violence towards people and property, even in the face of protective court orders which have proven to be exercises in futility. The Tribunal is greatly concerned that his repeated preparedness to employ dangerous weapons to scare and injure others and their property is emerging as something of a default response to episodes of extreme rage. He has described his own mood as "like a volcano". Those who have been exposed to his dangerous, threatening, frightening traumatizing conduct include his own child, partner, housemate, and random members of the community. The Tribunal is concerned that the Applicant poses a potentially very dangerous threat to the community.
21. As to the nature of harm should the applicant engage in further criminal or other serious conduct, the Tribunal found at TD [190]: This Applicant has, while armed with steak knives, made threats to kill two people and then proceeded to apparently try to carry out his threat in respect of one of them. He has also used a fishing knife and a cane knife to threaten and scare people. There is a very real risk that further similar conduct may well lead to very serious injury, or even one or more fatalities among members of the community. Any police officers trying to restrain or arrest the Applicant may also suffer violent assault in the performance of their duties. A partner of the Applicant might be placed in a circumstance of fear, or subjected to physical brutality, even in the face of a court order meant to afford them protection.
22. The Tribunal considered that the psychiatric evidence before Judge Morzone in 2018, but which was not before the Tribunal, was that the applicant was a changed man. The Tribunal noted that he nevertheless continued to offend: TD [191]. The Tribunal stated at TD [192] - [197]: This Tribunal has no evidence from any psychiatrist, psychologist, counsellor or other person who speak independently as to the Applicant's risk of re-offending. Consistent with the Tribunal's findings as to the Applicant's credibility, the Applicant committed the offence of Dangerous conduct with weapon on 15 January 2020 less than six weeks after he wrote to the Department in December 2019 saying he had changed and claiming once again that he had: "woken up and seen that my decisions and things I have done over my time was not right or wise, I have changed in some ways and wish I could turn back time and not do any of those things I had done." The Tribunal observes that the Applicant has also continued to offend since that occasion. The Applicant has accepted that he is a higher risk of re-offending if he does not take his medication. He has also accepted that in the past he his compliance has been "patchy" in the past, and he has been non-compliant. The Applicant has not shown himself to be capable of adhering to his required medication programme in the past when he has been at large in the community, and the Tribunal has little confidence that he would do so in the future if left to make his own decisions, particularly when IHMS records show he has declined medication even whilst in detention, and his compliance history has been sporadic. Conclusions about risk In these circumstances, the Tribunal finds that the Applicant is a high likelihood of the Applicant engaging in further offending or other serious conduct. (Footnotes omitted)
23. The Tribunal concluded that Primary Consideration 1 weighed very heavily in favour of cancelling the applicant's visa: TD [199].
24. In relation to Primary Consideration 2, the Tribunal considered who were members of the applicant's family for the purpose of the Direction. It considered that Ms X, the applicant's former partner and the mother of his child (Child B), was on three occasions the victim of offences involving family violence, as defined in the Direction, for which the applicant was convicted: TD [216]. The Tribunal also found that the applicant has been convicted of an offence that involved family violence against his current partner: TD [216]. These four convictions were considered to be frequent, of increasing seriousness and demonstrated that the applicant had "a casual contempt for court orders": TD [217] - [218]. The Tribunal acknowledged that while the applicant had made an effort to undertake a domestic and family violence program, his efforts directed at rehabilitation appeared not to have deterred him from further offending: TD [219].
25. The Tribunal found that Primary Consideration 2 weighed heavily in favour of cancelling the applicant's visa: TD [222].
26. As to the strength, nature and duration of the applicant's ties to Australia, the Tribunal found the applicant's link to his parents and siblings weighed heavily in favour of not cancelling the applicant's visa: TD [230]. It considered that the applicant has three biological children by different mothers, including one child, Child A, whom he has never met: TD [231]. There was very minimal evidence in relation to Child A and the Tribunal concluded that it appeared that the applicant had no contact with, nor plays any meaningful role in, Child A's life: TD [232]. As to Child B and Ms X, the Tribunal considered that the applicant had not had any contact with Child B for several years, nor does he make any financial contribution to the child's support: TD [233]. The Tribunal accepted that the applicant has strong ties to his current partner of five years, Ms S, their child, Child D, and the applicant's stepson, Child H: TD [234]. The Tribunal also accepted that the applicant has a "good fatherly relationship" with Child D and has taken a productive father figure role to Child H: TD [240] - [242]. The Tribunal also took into account that the applicant has lived in Australia since he was three years old and has lifelong community ties to Australia: TD [245] - [246].
27. The Tribunal ultimately found that Primary Consideration 3 weighed very heavily in favour of not cancelling the applicant's visa: TD [258].
28. In relation to Primary Consideration 4, the Tribunal had regard to the position in respect of the applicant's children, particularly that the best interests of Child D and Child H weighed moderately in favour of not cancelling the applicant's visa: TD [259] - [290]. Accordingly, the Tribunal found that Primary Consideration 4 weighed moderately in favour of not cancelling the applicant's visa: TD [291].
29. The Tribunal considered that the applicant "has a disturbing history of an eruptive temper, domestic violence against three partners, and serious criminal violence" and found that Primary Consideration 5 weighed very heavily in favour of cancelling the applicant's visa: TD [292] - [298].
30. The Tribunal found that Other Considerations 1 and 4 were of neutral weight, while Other Considerations 2 and 3 weighed very heavily in favour of not cancelling the applicant's visa: TD [299] - [323].
31. At TD [325] - [326], the Tribunal undertook a weighing exercise of the relevant considerations and found as follows: In considering whether to exercise the discretion pursuant to s 501(2) of the Act to cancel the Applicant's visa, the Tribunal finds as follows: • Primary Consideration 1 weighs very heavily in favour of cancellation; • Primary Consideration 2 weighs heavily in favour of cancellation; • Primary Consideration 3 weighs very heavily against cancellation; • Primary Consideration 4 weighs moderately against cancellation; • Primary Consideration 5 weighs very heavily in favour of cancellation; • The totality of other considerations weighs very heavily against cancellation. The Tribunal has had regard for paragraph 5.2(5) of the Principles in the Direction to allow the Applicant an increased level of tolerance in consequence of the fact that he has lived in Australia for most of his life. Further the Tribunal has had regard for paragraph 5.2(3), and the serious character concerns raised by the Applicant's conduct. In addition, the Tribunal has had regard for paragraph 5.2(6) of the Direction, and considers that the nature of the Applicant's conduct, and the harm that would be caused were it to be repeated, are such that even strong countervailing considerations in this case are insufficient to justify not cancelling the Applicant's visa.

CONSIDERATION

1. As set out above, the applicant relied upon two primary grounds in his application, which are as follows:
2. The Decision is affected by jurisdictional error because its consideration of the applicant's credibility was irrational or legally unreasonable. …
3. The Decision is affected by jurisdictional error because the AAT denied the applicant procedural fairness:
4. As to its findings of the applicant's credibility; and
5. As to its findings concerning the applicant's risk of reoffending.
6. I note that the applicant's amended originating application also contained what might properly be described as submissions. I further note that there was overlap between the submissions made regarding paragraphs TD [130] - [135] in relation to grounds 1 and 2.
7. The applicant's case comprises of two primary questions. First, whether the Tribunal erred on the basis that its consideration of the applicant's credibility was irrational or legally unreasonable. Secondly, whether the Tribunal erred by denying the applicant procedural fairness in respect of its findings, both as to the applicant's credibility, and as to his risk of re-offending. If either or both questions are answered in the affirmative, the question arises as to whether the errors were material.

Ground 1: Was the Tribunal's consideration of the applicant's credibility irrational or legally unreasonable?

1. To determine whether a decision was legally unreasonable, "the question is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker": DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [85], citing Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] (Crennan and Bell JJ) . In Tsvetnenko v United States of America (2019) 269 FCR 225; [2019] FCAFC 74 at [83]-[85], the Full Court confirmed: Unreasonableness as a ground of review is concerned with whether an implied statutory standard as to the character of the decision to be made in the exercise of power has been satisfied. Unreasonableness may be demonstrated by showing that the result is unreasonable or by showing that the reasons do not provide an intelligible justification for the result (see the review of the authorities in Minister for Immigration & Border Protection v Haq [2019] FCAFC 7 at [72]-[95] (Colvin J)). However, unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result. The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision‐making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.
2. In the context of findings as to credit, in DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2, referred to by the applicant, the Full Court set out the relevant principles at [30] as follows: The relevant principles can be summarised as follows. "(1) While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at 83). In each case it is necessary to analyse in detail what the decision-maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J). (2) Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at 83). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that: 135.… A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. (Emphasis added.) (3) By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant's evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), "[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54]." Equally jurisdictional error may be established by "a process of reasoning which damns a man's credibility by reference, materially, to a false factual premise concerning a critical document": SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [37]. (4) Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 (in a passage approved in CQG15 at [60]) that: 56 An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny … (Citations omitted.) (5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions" (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, "[e]ven emphatic disagreement with the Tribunal's reasoning would not be sufficient to make out illogicality": CQG15 at [61]. (Emphasis added.)
3. As observed by O'Bryan J in SZALG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1987 at [32]: … (b) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reason or finding of fact was immaterial, or not critical, to the ultimate conclusion or end result (such as, for example, where it is by one of several findings that independently may have led to the ultimate decision).
4. The applicant made the following submissions with respect to the Credibility Paragraphs:
5. At TD [132], the Tribunal erred by referring to the applicant's past claims about being a changed person "such as that made before Judge Morzone" as no claims were made in that respect by the applicant. Instead, a psychiatrist made remarks that the applicant was a changed person. Therefore, it was irrational for the Tribunal to make an adverse credibility finding about the applicant on the basis of a statement he did not make. Further, as to whether a person is a changed person, the applicant submitted that such a judgement can only be made at the time of making that statement.
6. With respect to TD [133], a fair reading of the evidence is that the applicant accepted that his conduct was serious and it is "not apparent" how this could be used to make an adverse credibility finding.
7. At TD [134], the Tribunal stated that the applicant's evidence is that the "wounding of Mr R was an accident, but that assertion is convincingly contradicted by the evidence referred to". However, the applicant contended that in his cross-examination, he clarified that that the wounding was "not intentional" (an accident) in the colloquial sense that he did not intend to cause serious harm to the victim.
8. At TD [135], the Tribunal made the finding that the applicant's claim of being consistently medicated in detention is inconsistent with the IHMS records. The applicant made two primary submissions in respect of this finding. First, the applicant contended that, as the Tribunal did not determine when he entered detention, it is not possible to determine that the IHMS records are in respect of the time when the applicant was in detention. Secondly, the applicant noted that the IHMS records indicate that the applicant refused to take certain oral medication. However, in his cross-examination, the applicant stated that he was taking injection-based medication. Therefore, the applicant submitted that the evidence is not necessarily at odds with the IHMS records.
9. While TD [130] and [131] are challenged in the amended originating application on the basis of legal unreasonableness or irrationality arising from the applicant not being cross-examined on the matters the subject of those paragraphs, the applicant's submissions rather seemed to be directed to the ground of denial of procedural fairness. Accordingly, they will be considered under the procedural fairness ground below.
10. I will otherwise deal with each of the above arguments in turn.
11. First, as to TD [132], I accept the Minister's submissions that, read fairly, it may be understood that the Tribunal was referring to the evidence put before Judge Morzone by the applicant as part of his case. As can be observed from various parts of the Tribunal's Decision (TD [27], [90] - [91], [105] and [191), the Tribunal was aware that the claim regarding the applicant being a changed person arose from psychiatric evidence before Judge Morzone.
12. Further, the Minister contended that while the truth of a statement must be assessed at the time of the making of that statement, subsequent events are relevant to whether the statement was indeed inaccurate. I agree with the Minister's submissions in that regard. At the time at which the applicant put to Judge Morzone that he was a changed person, it is entirely possible that he considered the statement to be true. However, subsequent reoffending reveals, as the Tribunal found, that this claim had not "withstood the test of time". The Tribunal does not necessarily find that the applicant was being untruthful when he presented evidence that he was a changed person - rather it observes that the claim that the applicant is changed no longer rings true. As submitted by the Minister, this is probative of the unreliability of claims made, or evidence put, by the applicant that he was a changed person.
13. Secondly, the submission advanced by the applicant in respect of TD [133] is that the conclusion as to his credibility at TD [133] cannot be drawn from the evidence. The relevant exchange during the Tribunal hearing is as follows: After using this knife you say, 'with the intention to scare L', and after seeing the consequences to Mr Rogerson, where his arm was sliced open, did you learn a lesson about not using knives to threaten people?---In this - yes, seeing the stitches and the scar mark on Matthew's arm, yes it did wake me up. … You spoke about the previous incident where you wounded Mr Rogerson, and you gave evidence to the tribunal that from that incident, you had learned a serious lesson about using knives to threaten people, do you remember that evidence?---Yes. But here, it seems as though you didn't learn that lesson at all, did you?---No, I didn't, no. Because having seen the potential consequences when Mr Rogerson's arm was sliced open, that didn't stop you from threatening this person with knives as well, that's right isn't it?---Yes.
14. The applicant submitted that a fair reading of that exchange cannot lead to the conclusion that that he is not credible.
15. That submission is rejected. The Court is concerned with whether the conclusion was open to the Tribunal. In this instance, it was open to the Tribunal to find that the applicant abandoned the claim that he had learnt a lesson later in the hearing. That was but one part of several findings about the overall reliability of the applicant and not, as the applicant appeared to suggest, a standalone finding as to credit.
16. Thirdly, as to TD [134], I refer to the following exchange during the Tribunal hearing in which the applicant was asked whether he slashed the victim's arm, to which he responded as follows: …Not intentionally to slash his arm, but in a struggle of between him arguing and fighting, his arm got cut, within the struggle between me and Mr Rogerson himself. It wasn't intentionally, like, just - yes. It wasn't - it was a - he - him trying to getting the knives off me, because the knives that I had in my hand were meant to be to scare Linda - sorry; this other lady - person that was around - but it didn't, and Matthew tried to get the knife off me, and within that struggle of him trying to get it off me, he copped a slash to his arm. Yes.
17. The transcript later reads: Going back to the wounding, then. You accept that the wound that was caused to Mr Rogerson was a very serious one, yes?---Yes. And you say that that was done accidentally?---Yes. Not intentionally, yes. … It's fair to say that essentially you have lost control at this point, yes? ---Yes. And that was what led to the wounding with the knife, yes? ---Yes.
18. When read in context as set out above, it was entirely open to the Tribunal to find that the applicant was referring to the wounding act as being accidental. It was open to the Tribunal to consider that the applicant was stating that the wounding act occurred as a result of the victim trying to get the knives from him, and the resultant struggle, rather than the applicant stating that he did not intend to cause the harm which occurred. The Tribunal did not demonstrate any illogicality or irrationality in reaching that conclusion.
19. Fourthly, as to TD [135], I do not accept that the applicant's submission that the Tribunal did not make a finding as to when the applicant was in detention so it was not possible to be certain that the IHMS records relate to a time when the applicant was in detention. By its finding at TD [135], the Tribunal accepts that the IHMS records related to a time when the applicant was in detention. It was open to the Tribunal to come to that conclusion as the IHMS records plainly state that the applicant "[e]ntered detention on 2 May 2023".
20. The Minister opposed the applicant's argument in respect of the IHMS records, arguing that it was open to the Tribunal to find that the applicant was not consistently medicated based on the evidence, regardless of any "vague" evidence about being on injection-based medication.
21. In respect of the applicant's contention that the fact that he was taking injection-based medication meant that the evidence was "not necessarily at odds with the IHMS records", that is plainly not enough to meet the threshold for legal unreasonableness. The evidence of the applicant as to when he was put on injection-based medication, who administered the medication and, particularly, whether it was during his time in detention, is not clear. As was referred to by the Minister, the IMHS records were before the Tribunal and include, on 3 May 2023, in respect of the applicant: "[s]ays he was having monthly depot previously, but he stopped, preferred to have tablets PRN". Further, on 4 May 2023, the records regarding the tablets include: …Patient has not taken any medication since arrival, so these should be ; collected from him. … …Says he takes this medication only on a PRN basis… …Says he last took any of his medication was for one night when he was in quarantine in Cairns. Has not been taking his prescribed medication in the community. …. On further questioning admits to ongoing AH, did not disclose content, denied commanding … Reports ; that he has not been taking medication ; prescribed as he only take it as a "last resort" when he is not able to cope with the stress anymore.
22. On that basis, it was open to the Tribunal to consider that his medication compliance in detention had been poor. As stated by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [50]: As was made clear by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647-648 [130]-[132], however, not every lapse in logic in the decision-making process will result in jurisdictional error. If particular findings or reasoning on the way to the decision-maker's ultimate conclusion and decision are challenged on the basis of illogicality or irrationality, jurisdictional error will not be made out unless it is shown that the findings could not have been made, or the reasoning could not have been employed, by a reasonable or rational decision-maker. At 648 [131] their Honours said: What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. (Emphasis added.)
23. At the hearing, the applicant submitted that he should have been questioned about his prospects of compliance were he in the community rather than detention as well as to what his counsellor's views were as to his risk of reoffending. While this submission was seemingly directed to the applicant's claim that there had been a denial of procedural fairness, the applicant appeared to submit that the failure to ask about these matters was so unreasonable that it was legally unreasonable, To the extent that such an argument is made, for the reasons set out below at paragraphs 87 and 88, I do not accept that submission.
24. Ground one does not succeed.

Ground 2: Did the Tribunal deny the applicant procedural fairness?

1. It is well established that "the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [26] (per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ).
2. As also observed by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL at [48], citing F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, procedural fairness does not require the Tribunal to disclose what it may be minded to decide, nor does it require the Tribunal to give a commentary on what it thinks about the evidence before it. Rather, the Tribunal is required to put any adverse conclusion to the applicant if it is not "obviously … open on the known material": Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 - 592; SZBEL at [29]-[32], [38].
3. Such findings are ones which are "unexpected", being "out of the blue" and not "reasonably anticipated": APS Group (Industrial) Pty Ltd v Carroll [2017] VSC 452 at [41].
4. The applicant referred to Hempenstall v Minister for Home Affairs [2020] FCAFC 216 wherein the Full Court considered what a person is entitled to have put to him or her at [39]: …the person whose interests may be affected, ordinarily, will be entitled to receive practical, direct and non-misleading advice, about the matters that will be relevant to the decision-maker's assessment of the outcome that the person seeks to achieve from participation in the process… Thus, where the decision is likely to turn on a particular issue that would not be obvious and natural to the person affected in light of the material that he, she or it is aware will be before the decision-maker, ordinarily again, the decision-maker must ensure that the person has his her or its mind alerted to the issue and is given an opportunity to address it…
5. The applicant submitted that the Tribunal erred by denying him procedural fairness with respect to its findings about his credibility and risk of re-offending. I will address each in turn. Ground 2(a): Applicant's Credibility
6. The applicant submitted that he was denied procedural fairness as he was not given fair notice of the fact that the Tribunal would wholly reject his credibility as a result of the available material and his cross-examination. The applicant contended that he was denied procedural fairness not because he did not receive a "running commentary" of the Tribunal's decision-making, but because the conclusion about his credibility was not put to him nor readily apparent on the material.
7. The applicant further contended that the findings in the Credibility Paragraphs were crucial as they related to his risk of re-offending, which pertains to Primary Consideration 1. He submitted that the Tribunal made a finding as to the applicant not being a changed person at TD [132]. Therefore, he submitted, he should have been alerted to the conclusion that the Tribunal was drawing as to his credibility and been given the opportunity to address this conclusion. In particular, the applicant stated: …my submission is where the problem lies is that by pulling out this particular document and saying this is the basis upon which I will find him not to be credible, that that is procedurally unfair. Because it puts applicants - and I appreciate that the response will be, "Well, he had the material. He could have responded to it." But what I submit today, your Honour, is that there's a distinction between that and the use of the material. That is the point. That's also, your Honour - I think this comes out in my written submissions - the "global" submission that I make, which is - and again, I will go through paragraph by paragraph of these credibility findings, but it's the way that these particular factual - let's call them vignettes are used, to draw the ultimate conclusion, which, I submit, they're - for procedural fairness to have been accorded, there should have been an opportunity to respond, to sort of say, "Well, that's how I would respond to that."
8. In relation to TD [130] and [131], the applicant argued that the Tribunal had referred to evidence which was "a needle in the haystack" and not given him an opportunity to address it. He contended that what is ultimately impugned is the global finding about his credibility which is drawn on an ad hoc basis from evidence dispersed throughout the material before the Tribunal.
9. At the hearing, the applicant referred to Habib v Director-General of Security (2009) 175 FCR 411; [2009] FCAFC 48, wherein the Full Court considered whether the Tribunal had an obligation to disclose adverse inferences drawn from false evidence given by the applicant and his wife. Given the applicant referred to Habib for the first time during the hearing, counsel for the Minister initially sought the opportunity to make written submissions in response. However, following the hearing, solicitors for the Minister advised that the Minister was content to rely upon his oral submissions.
10. In Habib, the Tribunal had affirmed a decision to refuse to issue the applicant a fresh Australian passport as well as an adverse security assessment upon which that decision was based. The applicant in that case claimed that there had been a denial of procedural fairness on the basis that the Tribunal did not disclose its intention to use adverse findings made about the credibility of him and his wife as positive evidence that he continued to hold extremist views. At [63], [70] and [71], the Full Court stated: Natural justice requires that a person know the substance of the case against him or her and be given the opportunity to respond to adverse material that is credible, relevant or significant: Kioa v West (1985) 159 CLR 550 at 629 (per Brennan J). As the respondents have submitted, however, the obligation to afford natural justice is shaped not only by the statute pursuant to which the impugned decision has been made but also the particular circumstances of the case: Ex parte Aala 204 CLR at 109 (per Gaudron and Gummow JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 94, 98 (per McHugh J); Kioa 159 CLR at 611-612 (per Brennan J). Thus, the content of the Tribunal's obligation must be considered in the context of s 33 of the AAT Act and with due regard to practical considerations related to the course of the hearing including, in the present case, the receipt of a large volume of evidence during a hearing over some 20 days. … There is however a particular aspect of this case that in our view suggests a need, in the interests of fairness, for the applicant to have been put on notice of specific findings the Tribunal might have made consequent upon a conclusion that Mr and Mrs Habib were not telling the truth. The specific findings to which we refer are that Mr Habib continued to hold extremist views and that he "supports Usama Bin Laden" (see 25 of these reasons). In this respect the present case can be distinguished from many of the authorities to which the respondents referred. In most of those cases it had fallen to the applicant to satisfy the decision-maker of his or her fitness to hold a licence or a visa and the decision-maker disbelieved the applicant's evidence with the consequence that the application failed. The alleged error was that the decision-maker had failed to raise concerns about the credibility of the evidence or had failed to give the applicant the opportunity to adduce further evidence: see SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 301 at [20]; VBAU [2003] FCA 1288 at [5]. It was held in these cases that the decision-maker had no such obligation. The alleged error here, however, is not that the Tribunal failed to disclose its concerns about the truthfulness of Mr or Mrs Habib's evidence; it was accepted that, if the Tribunal had merely disbelieved what they had said, that would provide no basis for complaint that Mr Habib should have been alerted to that possibility and its consequences. Rather, the point made here is that the Tribunal failed to disclose that it was going to use the falsity of their evidence to draw certain specific inferences that were fatal to Mr Habib's application. (Emphasis added.)
11. It is worthwhile to note that in Habib, the applicant was ultimately unsuccessful, with the Full Court finding at [77] - [78]: …whether the obligation to afford natural justice has been discharged is not to be evaluated minutely or in a manner divorced from its context. As we have said, the obligation is a practical one. As McHugh J said in Ex parte Aala 204 CLR at 122, a "[b]reach of the rules of natural justice … does not automatically invalidate a decision adverse to the party affected by the breach": see also Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Ex parte Aala 204 CLR at 88-89 (per Gleeson CJ); 116 (per Gummow and Gaudron JJ); 130-131 (per Kirby J); 154 (per Callinan J). McHugh J went on to say (at 122) that a court can refuse relief "when it is confident that the breach could not have affected the outcome". We have already found that the impugned inferences, so far as they were drawn from Mr Habib's false evidence, were sufficiently raised for consideration by the respondents' closing submissions which, as we have noted, preceded those of Mr Habib. We have also drawn attention to the broader context of the matter having been contested on the footing that the past was indicative of the present (see above at [69]). We are confident that it would have made no difference to the outcome if Mr Berger had invited the Tribunal to draw the impugned inference from Mrs Habib's evidence as well as Mr Habib's. (Emphasis added.)
12. The applicant acknowledged that Habib is distinguishable in terms of the way in which the Tribunal dealt with the evidence before it, however, apparently relying in particular on [71], submitted that the conclusion reached in this case as to the applicant's credibility "came out of the blue" and was fatal to his case. The Minister submitted that Habib is distinguishable on the basis that the credibility issue in Habib resulted in a positive finding that was fatal to the applicant's case.
13. The Minister also submitted that the Tribunal has a fact-finding task, which includes considering the evidence before it and the credibility of that evidence. In that regard, the Minister referred to a number of decisions which find that procedural fairness does not require that the Tribunal disclose credibility concerns in respect of evidence before it: Green v Minister for Immigration and Citizenship (2008) 100 ALD 346; [2008] FCA 125 at [38]; WABY v Refugee Review Tribunal [2005] FCA 209 at [65]-[70]; EAN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1231 at [32].
14. The Minister sought to distinguish circumstances which arise in different statutory contexts, such as s 425 of the Act, which has recently been repealed. By that provision, "[t]he Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review" (emphasis added). In SZBEL at [35], the High Court stated the following in the context of considering the operation of s 425: The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
15. The Minister submitted that such principles, which arise as a result of the operation of s 425, do not arise in the context of this case and referred the Court to Leone v Minister for Home Affairs and Another [2020] FCAFC 117, in which the Full Court, at [40], accepted the Minister's submissions made to this effect. Therefore, the Minister argued, procedural fairness in this case did not require the Tribunal to disclose its concerns about the applicant's credibility. In response, the applicant submitted that the decision in this case was made pursuant to s 501(2) of the Act, which appears under the subheading "Decision of Minister or delegate - natural justice applies".
16. The Minister also referred to SZRAE v Minister for Immigration and Citizenship [2012] FCA 916 in which Robertson J stated at [44] that if a party is on notice that credibility is in issue, and fraud or forgery is not, the rules of procedural fairness do not require that the Tribunal disclose each credibility concern. In that regard, the Minister submitted that the applicant was on notice that his credibility was in issue and, further that so much should have been apparent to him, given the functions and tasks of the Tribunal. That the applicant was on such notice was reinforced, according to the Minister, by the fact that the Tribunal warned the applicant of the legal consequences of not telling the truth during the proceedings and through the way in which he was cross-examined.
17. As to the findings in respect of the IHMS records at TD [135], the Minister submitted that it was open to the Tribunal to make those findings as the records show that the applicant had not taken any medication or was not taking his medication consistently since his arrival in detention.
18. I do not consider that procedural fairness in this case required the Tribunal to disclose that the applicant's credibility was in issue. As submitted by the Minister, the centrality of the finding is relevant to the extent to which procedural fairness requires a finding to be disclosed: Degning v Minister for Home Affairs (2019) 270 FCR 451; [2019] FCAFC 67 at [154]. In that regard, the Minister correctly submitted that none of the findings at TD [130], [131] and [135] were critical to the Tribunal's adverse conclusion as to the applicant's credibility, as they each formed one of the multiple findings which ultimately led to the adverse conclusion in TD [136]. Further, I accept the Minister' submission that the ultimate finding about the applicant's credibility was not, in any event, significant to the Tribunal's ultimate decision and that none of the applicant's evidence which was influential in the decision was rejected.
19. It is difficult to accept the applicant's submission that the Tribunal's findings were finely balanced in circumstances where the Tribunal stated at TD [326] that "the nature of the [a]pplicant's conduct, and the harm that would be caused were it to be repeated, are such that even strong countervailing considerations in this case are insufficient to justify not cancelling the [a]pplicant's visa". In that regard, while the Minister accepted that the general adverse credibility conclusion appears to have been taken into account in relation to whether the Tribunal should allocate more weight to Primary Consideration 3 given his employment history in Australia, ultimately, he submitted that there is no suggestion by the applicant that this factor could have realistically been determinative. I agree with those submissions.
20. Therefore, I do not consider that the ultimate adverse credibility finding was critical or central to the decision in the sense that it was required to be disclosed to the applicant.
21. That notwithstanding, I consider that the credibility findings were obviously open on the known material. There are many ways in which a person can be put on notice that their credibility is in issue: SZBEL at [47]. In the circumstances of this case, I accept the Minister's submissions that the fact that credibility was in issue should have been apparent to the applicant. That the applicant appeared in person before the Tribunal does not change this position, noting that Minister's representative before the Tribunal, cognisant that the applicant was in person, repeatedly drew his attention to the fact that statements he had made in the past in relation to rehabilitation had not been borne out.
22. While I am not entirely satisfied that it would have been apparent solely on the basis that the applicant was warned of the consequences of being untruthful to the Tribunal, the nature of his cross-examination about the matters raised in paragraphs TD [130] - [135], as well as to other aspects of his evidence, should have made it clear that his credibility was in issue. Particularly, as submitted by the Minister, the Minister's representative cross-examined the applicant in respect of his claims as to "accidentally" biting a police officer, his claim that he has learned a lesson from wounding someone, and as to the psychiatrist's claim of the applicant being a changed person. The Minister also correctly contended that the applicant knew that the records disclosing his false narrative regarding the incidents the subject of the 18 October 2018 conviction were before the Tribunal. Indeed, the applicant gave evidence to the Tribunal about the incidents after being specifically referred to the relevant parts of the records by the Minister. Accordingly, I consider that there was ample opportunity for the applicant to interpolate and provide explanations regarding his evidence during his cross-examinations of those matters.
23. When the transcript of the Tribunal's hearing is read as a whole, it becomes clear that the applicant was taken in a structure manner through the issues in relation to which findings were made, including by reference to relevant documents many of which were in the Tribunal bundle and the applicant was asked to read them immediately prior to and during the giving of his evidence. Indeed, the transcript discloses that the applicant was specifically taken to the departmental file note which the applicant submitted was a "needle in a haystack". Where the documents were not within the Tribunal bundle, such as the report of the psychiatrist, the nature and context of the document was spelt out during cross examination by the Minister's representative to the applicant, including asking the applicant to refer to the sentencing remarks of Judge Morzone, which was before the Tribunal and specifically referred to the report of the psychiatrist. An acceptance of the applicant's submissions would require that the Tribunal provide a "running commentary' of its thought processes when assessing the evidence and claims of the applicant, which it is not obliged to do: SZBEL at [48].
24. Further, for the reasons set out above at paragraphs 48 and 49, I accept the Minister's submission that it was open to the Tribunal to reach the conclusion to which it came in TD [135]. However, I do not accept that the records show that the applicant had taken no medication since arriving in detention, nor did the Tribunal so find. Rather, it found that the applicant had not been "consistently medicated" while in detention.
25. Ground 2(a) does not succeed. Ground 2(b): Applicant's Risk of Re-Offending
26. As to the ground relating to the applicant's risk of re-offending, the applicant referred to the following paragraphs of the Tribunal's Decision:
27. Moreover, the Applicant's claim before the Tribunal of being consistently medicated whilst in detention is at odds with the IHMS records referred to above. …
28. This Tribunal has no evidence from any psychiatrist, psychologist, counsellor or other person who could speak independently as to the Applicant's risk of re-offending. …
29. The Applicant has accepted that he is a higher risk of re-offending if he does not take his medication. He has also accepted that in the past he his [sic] compliance has been "patchy" in the past, and he has been non-compliant. …
30. In these circumstances, the Tribunal finds that the Applicant is a high likelihood of the Applicant engaging in further offending or other serious conduct …
31. A factor of concern, and relevant to all four children in terms of para 8.4(4)(b) is that the extent to which the Applicant is likely to play a positive role in the future in any of their lives hinges on his prospects of maintaining his mental health as best he can, and abstaining from alcohol and drugs. The Tribunal has already expressed its findings in regard to the Applicant's prospects of maintaining his medication, and his consequent high risk of reoffending. Should his self-described "volcano" erupt whilst in close proximity to any of the children, the consequences could be severe and adverse. This weighs heavily in favour of cancelling the Applicant's visa. …
32. There is some reason to believe that the Applicant can continue to play something of a positive role in the lives of Child D and Child H. However, it is 16 years until Child D turns 18, and about ten years until Child H does. Based on his past performance, the Tribunal has little confidence that the Applicant could abstain from drugs, and alcohol and consequent re-offending for such a lengthy period of time. (Footnotes omitted.)
33. As to TD [135], the applicant contended that the Tribunal did not put to him that his evidence was at odds with the IHMS records. In that regard, the applicant argued that an inconsistency does not necessarily arise in circumstances where the applicant has said that he is on depot medication. Therefore, he argued, as a matter of procedural fairness, the adverse credibility conclusion arising from the inconsistency between his claims and the IHMS records should have been put to him.
34. In relation to TD [195], [262] and [283], he submitted that while he conceded that in the past his oral medication use was "patchy", he also stated that he had been taking injection-based medication to address the issues with oral medication. Therefore, the applicant contended that the question as to whether he would have taken the medication outside of detention was significant as it relates to his risk of reoffending, but was not put to him.
35. As to TD [192], the applicant submitted that the Tribunal made "negligible inquiries" as to the availability of independent evidence relating to his risk of reoffending despite concluding that he was a high risk of reoffending due to the lack of an independent account. At the hearing, the applicant also appeared to submit that he should have been questioned as to whether he would be compliant with the medication regime outside of detention and as to what his counsellor's views were about his risk of reoffending.
36. The crux of the Minister's submissions in that regard was that from the evidence of the IHMS records, it was open to the Tribunal to find that the applicant was not consistently medicated while he was in detention. Further, the Minister submitted that it should have been obvious to the applicant that his medication compliance was in issue.
37. I agree with the Minister's submissions in this respect. In this case, on the material, it was open to the Tribunal to make that finding and it did not deny the applicant procedural fairness. The IHMS records consistently displayed that his medication compliance had been poor. This conclusion is only reinforced by the fact that the applicant was questioned about what he would do to be compliant with his medication regime outside detention.
38. In relation to the applicant's submission about the Tribunal's failure to make inquiries of an independent person as to the applicant's risk of reoffending, the Minister contended that procedural fairness does not require that an absence of evidence be disclosed, relying on Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9]. Further, the Tribunal is not obliged to make such inquiries: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [1] and [24]. While there may be jurisdictional error where there is "a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained" (SZIAI at [25]), as observed by Gleeson J in BFC15 v Minister for Immigration and Border Protection [2016] FCA 735 at [20], this refers to rare and exceptional circumstances, which the Minister submits do not arise here.
39. I agree with the Minister's submissions. As stated by Wigney J in EXT20 v Minister for Home Affairs (2022) 291 FCR 55; [2022] FCAFC 72 at [154], the onus is on the applicant to put his "best case" forward when seeking revocation of a mandatory visa cancellation. The Tribunal is under no obligation to make the applicant's case or to make such inquiries. This was not an obvious inquiry about a critical fact as referred to SIZAI, particularly given that the applicant agreed with the Tribunal that his medication compliance had historically been poor.
40. At the hearing, the Minister also submitted that there was no evidence that the psychiatric report that was before Judge Morzone could be easily ascertained or that the counsellors which the applicant had engaged with during detention could be easily located. Further, it was argued that, in any event, such evidence would not have clearly dealt with the risk of reoffending issue as the psychiatric report before Judge Morzone was nearly five years old and it is not known what weight the Tribunal would have applied to evidence from the applicant's counsellors. I do not consider it necessary to make a finding on this submission in circumstances where I do not consider that the Tribunal, as a matter of procedural fairness, was under an obligation to make such inquires.
41. Further, when the Tribunal's Decision is read as a whole, it is plain that the Tribunal's statement at TD [192] is but one part of several matters that the Tribunal took into account in reaching its conclusion as to the applicant's risk of reoffending.
42. As well, I do not accept the applicant's submission that he should have been questioned about his prospects of medication compliance were he in the community rather than detention as well as with respect to what his counsellor's views were as to his risk of reoffending. As referred to by the Minister, in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; [2014] FCAFC 93 at [153] - [159], it was considered that "there is no general requirement that a witness be cross-examined in such a manner as to permit an opportunity to answer particular submissions or findings which may later be advanced or made".
43. In any case, as the transcript of the Tribunal hearing reveals, the applicant was asked about his medication compliance in the context of the offending and stated that he, "was on and off with my medication on the outside - enough". At the hearing, the applicant also accepted that his medication compliance had been "patchy in the past". He was also asked about the steps he would need to take to receive his injection in the community. As well, the applicant acknowledged during the Tribunal hearing that compliance with medication was associated with his not reoffending. Thus, the applicant was put on notice that his prospects of future compliance with medication in the community were in issue.
44. Ground 2(b) does not succeed.

1. If, contrary to my findings above, the Tribunal has erred with respect to either ground of review, I do not consider that the errors were material.
2. Before the Court, the parties made submissions regarding materiality including with respect to the effect of Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26. In that case, Kiefel CJ, Keane and Gleeson JJ stated at [32] - [33]: As explained in MZAPC, the materiality of a breach requires consideration of "the basal factual question of how the decision that was in fact made was in fact made". This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with "as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined". The burden falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition". There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome. (Emphasis added, footnotes omitted.)
3. The applicant contended that if the credibility findings in the Credibility Paragraphs had weighed in his favour, and therefore it was found that he had rehabilitated and did not have a high risk of reoffending, it is possible that Primary Consideration 1 may have weighed less against cancellation. He contended that the Tribunal's findings were "finely balanced" and, accordingly, the ultimate outcome may have changed if the findings as to Primary Consideration 1 were different. The applicant took a similar position in respect of the Tribunal's findings on his medication compliance and, relatedly, his risk of reoffending.
4. As to ground 1, the Minister submitted that irrationality and unreasonableness in findings of fact only give rise to jurisdictional error where the finding is critical, relying on CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60]. In that regard, the Minister argued that the general adverse credibility finding at TD [136] was not critical to the ultimate decision to affirm the Delegate's Decision.
5. As to ground 2, the Minister first contended that the applicant has not provided evidence as to what he would have said had he been cross-examined on the relevant matters or, in other words, had he been afforded procedural fairness. He submitted that it is not sufficient for the applicant to claim materiality through "mere speculation" about what he may have said: CKL21 v Minister for Home Affairs (2022) 293 FCR 634; [2022] FCAFC 70 at [74]. The Minister, in reliance on the observations of the Full Court in CCU21 v Minister for Home Affairs (2023) 297 FCR 503; [2023] FCAFC 87 at [81] - [87], argued that the principles in [33] of Nathanson should not be relied upon as they differ from the High Court approach in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17.
6. Secondly, the Minister submitted that even if the credibility concerns in TD [130], [131] and [135] had been in favour of the applicant, there is no realistic possibility that the Tribunal would have not reached the adverse finding about the applicant's credibility. This is because the findings were ultimately based on eight adverse credibility matters.
7. Thirdly, the Minister contended that even if the Tribunal did not make the ultimate adverse credibility finding at TD [136], there is no realistic possibility that the Tribunal's decision would have been different. This is because the adverse credibility conclusion did not have a material impact on its ultimate decision.
8. On 23 April 2024, the applicant advised the Court of the decision in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 and its potential applicability to this present case. I made orders permitting the parties to file brief written submissions to address the decision in that matter.
9. In LPDT, the plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) stated the following at [14] - [16], as to the requirement of materiality: The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous. What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is "no easy task" for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example. In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion). (Footnotes omitted)
10. In his further written submissions, the applicant made the following submissions with respect to ground 2(a):

• the decision could have been different as the factors for consideration were finely balanced;
• the applicant's risk of reoffending was relevant and important, but the Tribunal only had the applicant's oral evidence to consider with respect to this issue, noting that the applicant was self-represented and the only person giving oral evidence in his case. Had the Tribunal not rejected the applicant's evidence, which was "crucial" to the risk of reoffending question, there could have been a realistic possibility that the Tribunal would have reached a different conclusion.
• If the applicant had been put on notice of the adverse credibility findings and as to the rejection of his evidence, he could have addressed the aspects of the evidence which led to the credibility concerns. He also could have adduced evidence from a psychiatrist, counsellor or other independent person as to his risk of reoffending.

1. The applicant made similar submissions with respect to ground 1. He further submitted that had the Tribunal not fallen into illogical reasoning and made the adverse credibility finding, it would have accepted the applicant's evidence to a greater extent. The applicant relied upon the submissions made at paragraph 99 above in support of ground 2(b), contending that he could have given evidence in his favour.
2. The Minister contended that LPDT does not depart from the approach endorsed in MZAPC. Particularly, the Minister submitted that [16] of LPDT only states that once an applicant establishes that there is a realistic possibility that the outcome could have been different had the error not been made, then, "unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same", the threshold of materiality is met.
3. The Minister also referred to AUP21 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 442 in which Rofe J considered and applied LPDT. Particularly, the Minister referred to [51] - [57] of AUP21, wherein Rofe J evaluated the possibility of a different weight attribution in the Tribunal's decision.
4. The Minister opposed the applicant's argument that the case was finely balanced as two of the primary considerations weighed very heavily against revocation. While the Minister accepted that the applicant's risk of reoffending is relevant and important, he maintained that the decision of the Tribunal could not have been realistically different, noting that there is nothing to suggest that the Tribunal's adverse credibility conclusion was significant to its assessment of risk.
5. I accept the Minister's submissions in this respect. In relation to ground 1, I do not consider that the general adverse credibility conclusion was critical to the ultimate decision, and therefore no finding of jurisdictional error is made out: CQG15 at [60].
6. Further, I do not consider that the outcome could have realistically been different had the asserted errors with respect to ground 2 not been made. I consider that is it improbable that the Tribunal's ultimate decision could have been different, even had it did not come to the general adverse credibility conclusion. So much is clear from the extracts of the Tribunal's Decision set out at paragraph 28 above. The Tribunal clearly considered that "the nature of the [a]pplicant's conduct, and the harm that would be caused were it to be repeated, are such that even strong countervailing considerations in this case are insufficient to justify not cancelling the Applicant's visa": TD [326].
7. Accordingly, even if the Tribunal had made the purported errors, I do not consider that there was a realistic possibility that the Tribunal's decision could have been different had the errors not been made.

CONCLUSION

1. For the above reasons, the application should be dismissed. There is no reason why costs ought not follow the event. Therefore, the applicant must pay the first respondent's costs as agreed or taxed.
2. I thank pro-bono counsel and solicitors for appearing on behalf of the applicant. Their assistance to this Court is greatly appreciated. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher