Dong v Minister for Immigration and Citizenship

The Applicant sought merits review of the delegate's non-revocation decision in the Administrative Review Tribunal. On 7 July 2025, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's Visa and published written reasons (T).

By the present application, the Applicant contends that the Tribunal's decision was affected by jurisdictional error. The Applicant advanced two grounds of review, as follows:

For the reasons that follow, the application is dismissed.

Section 501 of the Migration Act relevantly provides:

Section 501CA of the Migration Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that the Minister may revoke the original decision if:

Finally, s 500(1)(ba) of the Migration Act provides that an application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

Having regard to the grounds of review, it is necessary to say something about the material that was before the Tribunal.

Relevantly, the Minister prepared a tender bundle, which both parties relied upon at the hearing before the Tribunal. The tender bundle included the Applicant’s parole documentation including documents titled: (a) Parole application form; (b) Parole suitability assessment; (c) Parole suitability assessment - Addendum, (d) Level of Service/Risk, Need, Responsivity summary, assessment reports and (e) Parole suitability assessment – Addendum.

One of the parole documents was a suitability assessment dated 9 September 2024 which included a risk assessment of the Applicant dated 20 August 2024, using the Level of Service/Risk, Need, Responsivity (LS/RNR) tool, which assessed the Applicant at a “Low” risk of reoffending. Under the “Low” risk finding was the following graph entitled “LS/RNR Outcome – Histogram”, which scored the Applicant on eight separate risk factors.

There was a further parole assessment on 16 December 2024 in which the Applicant was again assessed at a low risk of reoffending and received the same scores for the eight risk factors above.

The Applicant also prepared a written submission in letter form dated 28 May 2025 which he relied upon before the Tribunal. The letter enclosed “several key pages from [the Applicant’s] prison records” including the “risk assessment reports”, and stated:

On the same day, the Applicant submitted an appendix summarising his rehabilitation, including a note that he had been “[a]ssessed as an inmate with a low risk of reoffending and good potential for successful reintegration into society”. In a further appendix submitted by the Applicant, under the heading “Final Summary Statement”, the Applicant repeated that he had “been assessed as low risk”. The next day, on 29 May 2025, the Applicant provided a further submission referring to his “very low risk of reoffending”.

The Court was told that the only reference to the parole assessment report at the hearing before the Tribunal was by the Applicant, in opening submissions, when the Applicant said:

The Applicant sought to impugn paragraphs 77 and 78 of the Tribunal’s decision, which concerned one aspect of the Tribunal’s consideration of one of the “primary considerations” in paragraph 8 of “Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" (Direction no. 110). Before turning to the Tribunal’s decision, it is convenient to mention the relevant parts of Direction no. 110.

Direction no. 110 is a direction made under s 499 of the Migration Act. The Tribunal was obliged to follow it in exercising its discretion not to revoke the decision cancelling the Applicant's Visa.

Paragraph 5.2 of Direction no. 110 contains the 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 of the Migration Act, or whether to revoke a mandatory cancellation under s 501CA.

Paragraph 6 of Direction no. 110 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in paragraph 8 (primary considerations) and paragraph 9 (other considerations), where relevant to the decision.

Paragraph 7 provides guidance in taking the relevant considerations into account. It relevantly provides:

Paragraph 8 sets out five primary considerations, which relevantly includes “protection of the Australian community from criminal or other serious conduct”. In relation to that primary consideration, paragraph 8.1(1) provides that, when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. Paragraph 8.1(2) further provides:

In relation to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, paragraph 8.1.2 provides:

The Tribunal found that the Applicant did not pass the character test and, in finding that there was not another reason to revoke the mandatory cancellation decision, placed determinative weight on the protection and expectations of the Australian community, finding that those considerations under Direction no. 110 outweighed the other relevant countervailing considerations falling in favour of revocation.

As the Applicant submitted, the Tribunal commenced the assessment of “the risk to the Australian community should [the Applicant] commit further offences or engage in other serious conduct” (paragraph 8.1.2 of Direction no. 110) at T [59] – [80]. After noting the materials relied on by the Applicant and the Minister’s submissions, the Tribunal referred to the first parole assessment report dated 9 September 2024 at T [69] – [70]. The Tribunal noted, at T [70], that the report assessed the Applicant as a “low-risk general offender” and that he was assessed as “low risk” according to the LS/RNR assessment tool, scoring “very low” to “low” across a range of risk factors. However, he scored “high” on the companions risk factor “as the Applicant was assessed as appearing ‘easily influenced by negative companions’”. The Tribunal further noted that the LS/RNR assessment was administered in the two further addendum parole reports dated 29 October 2024 and 16 December 2024 and that, on each occasion, the Applicant was assessed overall as “low” risk, but again scored “high” on the companions risk factor for each subsequent assessment. As the Applicant submitted, the LS/RNR assessment in the parole report dated 29 October 2024 appears to be a copy of the first assessment rather than a separate assessment, however this was not material to the Tribunal’s findings.

The Tribunal stated, at T [71] – [72]:

The Tribunal then noted several matters that were favourable to the Applicant, such as “prosocial contacts”, his employment history and future prospects, and his vocational training prior to his arrest and during his time in prison.

The Applicant sought to impugn the Tribunal’s findings at T [77] – [78], which were as follows:

The Tribunal concluded at T [79] – [80] that although the Applicant is at a “low to moderate” risk of reoffending, that risk is unacceptable given the serious nature of the offending and the harm that would be caused if the conduct were repeated.

The Applicant submitted that the Tribunal’s finding that the Applicant was at a “low to moderate risk of reoffending” was significant, because it interacted with the finding that the harm that would be caused was unacceptable, resulting in a finding that this primary consideration “weigh[ed] very heavily against revoking the mandatory cancellation decision”: T [80]. The Applicant submitted that the significance of the Tribunal’s finding with respect to the primary consideration of the protection of the Australian community to the overall result was further confirmed in the Tribunal’s conclusions at T [143] – [145].

The Applicant submitted that the Tribunal fell into error because it “cherry-picked” one of eight risk/need factors listed in the LS-RNR assessments – “companions” (which had been graded as “high”) – and, without explanation, determined that the Applicant was a “low to moderate” risk of reoffending. The Applicant submitted, first, that the Tribunal misconstrued the LS-RNR assessments and, second and relatedly, that the determination by the Tribunal was irrational or illogical.

The principles are well established and were not in dispute. The Tribunal may fall into jurisdictional error if it misunderstands or fails to consider relevant facts or materials: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ), [105] (Gleeson J). Further, the Tribunal may fall into error if the decision to which the Tribunal came is one which no rational or logical decision maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] – [131] (Crennan and Bell JJ).

The Applicant submitted that the Tribunal fell into error because it artificially inflated the risk assessment from low to “low to moderate” and provided no explanation for doing so. The Applicant further submitted that the Tribunal failed to provide any explanation, at T [77], for why it came to a different conclusion to that contained in the parole assessment report, before it “determine[d] that the Applicant is at a low to moderate risk of reoffending”, at T [78].

The Applicant has taken an unduly narrow reading of the Tribunal’s reasons and Ground 1 is framed in a way that, itself, misunderstands the Tribunal’s reasons.

Properly construed, the Tribunal’s determination at T [78] was based on four adverse matters set out in T [77] which led to the Tribunal’s own assessment of the Applicant’s risk of reoffending. The Tribunal began, at T [77], by noting that the parole assessment reports had made an assessment, using the LS/RNR tool, that the Applicant had a low risk of reoffending. The Tribunal further noted, however, that the Applicant had scored “high” on the companions risk factor, which it said was “of concern”.

The Tribunal then went on to state that, first, the Tribunal remained concerned that “the Applicant may be susceptible to negative influences, as previously indicated in the Parole Report”. Second, the Applicant had engaged in criminal offending over a protracted period of time and which involved many co-offenders who were known to the Applicant. Thirdly, the Applicant had the protective factors of his wife and children at the time, but this had not deterred him from offending. Fourthly, having regard to the Applicant’s stated financial reasons for the offending, the Tribunal was not confident that, if the Applicant felt under financial pressure, the Applicant would resist the urge to engage in illegal behaviour once again.

Thus, the Tribunal came to its own assessment, at T [78], that the Applicant was at a “low to moderate” risk of reoffending. Furthermore, the Tribunal explained the reasons for reaching that assessment, at T [77].

The Tribunal was not required to give particular weight or deference to the parole assessment reports, a matter which the Applicant conceded at the hearing. The Tribunal was, of course, required to give appropriate consideration to the LS-RNR risk assessments to the extent that they were the subject of argument from the Applicant. As the Tribunal’s reasons demonstrate, the Tribunal had regard to the LS-RNR assessments, but ultimately formed its own view of the Applicant’s risk of reoffending. However, save for the requirements of Direction no. 110, the manner in which the Tribunal assessed the risk of reoffending, and how it treated the parole assessment reports as part of that overall assessment, was a matter for it: RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 at [71] (Feutrill J).

Nothing in the Tribunal’s analysis discloses that it misunderstood the risk assessments in the parole assessment reports. Furthermore, the conclusion reached by the Tribunal was open to it for the reasons that it gave.

Finally, the Applicant relied on Doan v Minister for Home Affairs [2019] FCA 1172 (Griffiths J). The Minister submitted, and I accept, that Doan does not assist the Applicant. In that case, the Administrative Appeals Tribunal (AAT) had before it competing risk assessments from two psychologists. Griffiths J found, at [72], that the AAT fell into error because, despite stated concerns about the reliability of both assessments, it found that the risk of reoffending fell within the range identified by the two experts. That is, the AAT effectively had an “each way bet” without explaining why it adopted, as part of its conclusions, the stated opinions of both experts notwithstanding its stated concerns with those opinions. Those facts are vastly different from the present case, for the reasons mentioned.

Ground 1 therefore fails.

The Applicant submitted that the Tribunal's finding on the Applicant's risk of reoffending was made in circumstances where the Applicant was denied procedural fairness. The Applicant submitted that he was entitled to assume that the Tribunal would, at the very least, accept that the results of the LS-RNR assessments were, on their face, that the Applicant is at a low risk of reoffending. Further, there was no indication from the Minister or the Tribunal that the low score would be thrown into doubt, by emphasising the only “high” factor, relating to companionship, or that this would form part of a foundation for a finding that the Applicant was at a higher, being “low to moderate”, risk of reoffending.

The Applicant submitted that procedural fairness required the Tribunal to inform the Applicant that the result of the LS-RNR assessments would be modified by extracting the issue of companionship, which returned a high score, relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [29], referring to the following passage in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592:

As the Minister submitted, the substratum of this ground is misconceived. The Tribunal did not modify the LS-RNR assessments or misunderstand the assessments. The Tribunal took the assessments into account, but ultimately reached its own assessment regarding the Applicant’s risk of reoffending, as explained above.

Ground 2 therefore fails.

For the foregoing reasons, the application should be dismissed, with costs.