DVRL v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1540

DVRL v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1540 | Case summary | Zoe

[67]

(a) Chapter III of the Constitution restricts "the legislative and executive power of the Commonwealth by insisting that the judicial power of the Commonwealth may be exercised only by the judiciary". This restriction is "carefully guarded by the courts".[27]

(b) The specific constitutional principle "restated and reinforced" in NZYQ is that "a law enacted by the Commonwealth Parliament which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose", such detention being "penal or punitive unless justified as otherwise".[28]

(c) NZYQ, however, "represents a specific example of a broader stream of common law and constitutional principle based on the pre-eminent value the law of this country gives to the protection of human life (from arbitrary capital punishment), limb, now called bodily integrity (from arbitrary corporal punishment), and liberty (from arbitrary detention)" (Broad NZYQ Principle).[29] The Broad NZYQ Principle holds that, subject to two qualifications, a law enacted by the Commonwealth Parliament which authorises the interference with individual liberty or bodily integrity, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of the function of adjudging and punishing criminal guilt, will also contravene Ch III of the Constitution.

(d) The first of the two qualifications to the Broad NZYQ Principle is that the law which authorises the interference with individual liberty or bodily integrity must properly be characterised as "prima facie" penal; and that is because there "are many interferences with bodily integrity and liberty authorised by the legislature, both significant and insignificant, which are non-punitive and therefore do not infringe on exclusively judicial power".[30] Whether any given power that authorises interference with bodily integrity or liberty is prima facie penal is to be determined by addressing a "single question of characterisation: whether the power to impose the detriment conferred by the law is properly characterised as punitive and therefore as exclusively judicial".[31] The "task of characterisation of the power begins by determining the meaning and scope of the law; the law's practical and legal operation; and the end or object the law is designed to achieve (ascertained objectively from its whole text and context at a level of generality or specificity calibrated to the importance of the "constitutional value . . . at stake")".[32]

(e) The second qualification to the Broad NZYQ Principle is that, even though a law that authorises the interference with bodily integrity or liberty may be prima facie penal or punitive, it may nevertheless not have been enacted in contravention Ch III of the Constitution if the law can be justified. Here:[33]

[98]

(a) First, the current cl 070.612A(1) defines more narrowly the purpose for which the Minister may impose any one or more of the conditions mentioned in the clause (Prescribed Conditions): the Minister may impose one or more of the conditions for the purpose of "protecting any part of the Australian community from serious harm". The serious harm is the substantial risk of the person to whom the Minister intends to grant the BVR (BVR grantee) seriously harming the Australian community by committing a serious offence. The serious harm may be more directly stated as the substantial risk of the BVR grantee committing a serious offence; because it is through the substantial risk of the BVR grantee committing a serious offence that there is a substantial risk of the BVR grantee seriously harming any part of the Australian community.

(b) Second, the current cl 070.612A(1) provides that one or more of the Prescribed Conditions may be imposed only if the Minister is satisfied that the imposition of one or more of them would protect any part of the Australian community from the substantial risk of the BVR grantee reoffending, and that the imposition of such conditions would protect any part of the Australian community "by addressing that substantial risk". The word "by" "clearly expresses the notion of causation without defining or elucidating it".[46] The current cl 070.612A(1), therefore, requires the Minister to be satisfied that, if imposed, there could be a causal connection between the imposition of one or more of the Prescribed Conditions and the reduction of the substantial risk of reoffending the Minister is satisfied the BVR grantee poses.

(c) Third, the current cl 070.612A(1) requires the Minister to be satisfied that the imposition of one or more of the Prescribed Conditions is "reasonably necessary", and "reasonably appropriate and adapted" to address the substantial risk the Minister is satisfied the BVR grantee poses. The words "reasonably necessary" require that the Minister be satisfied there are reasonable grounds for supposing that the imposition of one or more of the Prescribed Conditions will reduce the substantial risk of reoffending the Minister is satisfied the BVR grantee poses. The words "reasonably appropriate and adapted" require that the only matters the Minister may consider when determining whether the imposition of one or more of the Prescribed Conditions could reasonably be supposed to reduce the substantial risk of reoffending are matters that specifically relate to the particular circumstances of the BVR grantee. This precludes the Minister from relying on what the Minister may consider to be the general capacity of the Prescribed Conditions to reduce the risk of reoffending as the sole ground for imposing such conditions on a BVR grantee.

[129]

(a) "Criminal History" (CH), requiring the selection of "yes" or "no" to eight questions. "Yes" was selected for 5 of the questions.

(a) "Education/Employment" (EE), requiring the selection of "yes" or "no" to 6 questions, and the rating of three matters. "Yes" was assigned to 5 of the 6 questions; and "0" was assigned to three matters, these being "Participation/Performance", "Peer interactions", and "Authority interaction".

(b) "Family/Marital" (FM), requiring the rating of three matters, and the selection of "yes" or "no" for another matter. The rating of "0" was assigned to all three matters, these being "Dissatisfaction with marital or equivalent situation", "Nonrewarding, parental", and "Nonrewarding, other relatives".

(c) "Leisure/Recreation" (LR), requiring the selection of "yes" or "no" to one matter, and the rating of one matter. The rating of "0" was assigned to "Could make better use of time".

(d) "Companions" (CO), requiring the selection of "yes" or "no" to two matters, and the rating of two matters. "Yes" was assigned to "Some criminal acquaintances", and "No" was assigned to "Few anticriminal acquaintances" and the ratings of "1" and "0" were assigned to "Some criminal friends" and "Few anticriminal friends" respectively.

(e) "Alcohol/Drug Problem" (ADP), requiring the selection of "yes" or "no" to six matters. "Yes" was assigned to five of the matters, these being "Alcohol problem ever", "Drug problem, ever", , and, if "a current alcohol/drug problem exists", to "Law violations", "Marital/Family", and "Medical or other clinical indicators" although, in relation to this last matter, the form required that those indicators be specified, but that part of the form is not completed, but the form does not do so. A rating of "1" was assigned to "Alcohol Problem, currently", and a rating of "2" was assigned to "Drug problem, currently". The form required the specification of the "type of drug(s)", but that part of the form is not completed.

(f) "Procriminal Attitude/Orientation" (PA), requiring the selection of "yes" and "no" to two matters, and the assignment of a rating of two others. A rating of "0" is assigned to "Supportive of crime" and a "1" to "Unfavourable toward convention". "Yes" was assigned to "Poor, toward sentence/offence", and "Poor, toward supervision/treatment".

(g) "Antisocial Pattern" (AP), requiring a "yes" or "no" response to four questions, and marking at least one of the particulars for each of those questions. "Yes" was assigned to each of the following:

(i) "Specialized assessment for antisocial pattern".

(ii) "Early and diverse antisocial behaviour", in support of which the following were circled: "Official record of assault/violence", and "Charge laid, probation breached, or parole suspended during prior community supervision".

(iii) "Criminal attitude", in support of which the following were circled: "Supportive of Crime", "Unfavourable toward convention", and "Poor, toward supervision/treatment".

(iv) "Pattern of generalized trouble", in support of which the following are circled: "Financial problems", "Never employed for a full year", "Less than regular grade 10 or equivalent", "Suspended or expelled at least once" (this appears to have been circled in error), "Nonrewarding, parental", "Could make better use of time", and "Few anticriminal friends".

[152]

(a) The delegate must read and consider all the information on "the individual" that had been provided to the delegate. If the delegate does not think she has the right information, or sufficient information, to make the decision, the delegate could so indicate in Attachment A that she wishes to discuss, and the Department would liaise with the delegate about any further information that may be available.

(b) Steps 2 and 3 are to consider whether "the individual" has met the requirements provided by reg 2.25AB.

(c) Step 4 is directed to the consequences of the delegate not granting "the individual" a BVR as compared with the delegate granting "the individual" a BVR. If a BVR is not granted "their current BVR will remain in effect", which meant that "the individual is not subject to conditions 8621 and/or 8620". (To the extent this was intended to apply to the applicant, it is incorrect, because the applicant held a BVR which was purportedly subject to conditions 8620 and 8621.) If, on the other hand, a BVR is granted, the BVR "they currently hold will cease to be in effect", and the delegate would need to consider afresh, and "applying the new test", whether the prescribed conditions must be imposed. The "new test" appears to be a reference to paragraph 6 of the Second Department Minute which refers to the "new test" that was introduced by the November 2024 amendments.

(d) Step 5 is directed to the delegate considering and noting the content of mandatory conditions to the grant of a BVR. Steps 6 and 7 direct the delegate's attention to the applicant's criminal history, and confirming whether "the individual" has been convicted of an offence involving the matters identified in paragraph 17 of the Second Department Minute.

(e) Step 8 is directed to the delegate's considering whether she is satisfied that, on the balance of probabilities, despite the other mandatory conditions imposed on the BVR, "the individual" poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence. This part of the Second Department Minutes continues by referring to the definition of "serious offence"; explaining the meaning of "balance of probabilities"; and explaining the meaning of "substantial risk". The Second Department Minute notes that although "substantial risk" is not defined, "risk" is defined in the Oxford Dictionary as an exposure to the possibility of loss, injury, or other unwelcome circumstance"; and that "substantial" has been held to mean "a real possibility, chance or likelihood". The Second Department Minute states that the delegate "must be persuaded that, on the information before you and having regard to the conditions that are required to be imposed, it is more likely than not that there is a real not remote possibility of the individual seriously harming any part of the Australian community by committing a serious offence.

(f) Step 8 also identifies the matters the delegate may consider when considering whether there is a substantial risk, these include: the nature, type and degree of any possible offence the subject of that risk, and the seriousness of the harm that may follow to any part of the Australian community". The following are the matters the Second Minute identifies:

(a) General criminal history. An individual's previous offences and convictions may be informative as to the nature and type of offences that may be at risk in the future.

(b) Contributors to prior offending (i.e., alcohol/drugs, mental health conditions, relationship issues), and whether those remain.

(c) Reports on behaviour in custody.

(d) Medical and psychologist reports.

(e) Risk Assessments.

(f) Evidence of rehabilitation.

(g) Any evidence of prosocial factors.

(h) The conditions which are required to be imposed on the BVR, as will have been identified in steps 4-6, including whether those conditions reduce or lessen the risk.

(i) Any other court orders or obligations which may be imposed on the individual through other regimes (i.e., child sex offender registers, parole conditions).

(g) Steps 9-12 deal with what the Second Department Minute identify as "the second limb of the new test", this being whether the delegate considers is satisfied on the balance of probabilities that the imposition of the condition is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing the substantial risk the delegate would have found. The second Minute gave a detailed explication of the "second limb", which included the following:

The purpose of imposing any of the prescribed conditions is not general protection of the Australian community from any possible risk of any harm. Rather, your assessment of whether the prescribed conditions are 'reasonably necessary' and 'reasonably appropriate and adapted' is directed to whether the prescribed conditions are 'reasonably necessary' and 'reasonably appropriate and adapted' for the purpose of protecting the safety of the community from the serious offence occurring, and mitigating (in the sense of reducing but by no means eliminating) the substantial risk of the serious offence, and the associated serious harm.

What is 'reasonably necessary' and 'reasonably appropriate and adapted' for that purpose will require you consider whether the limitations or restriction which the prescribed condition would impose on the individual is a greater degree of restraint or limitation than is required to achieve the purpose related to the specific serious offence (and associated serious harm). This means that you must be satisfied that each condition is "proportionate" to the substantial risk of the person committing the serious offence and the need to protect a part of the Australian community from the serious harm which would occur as a result of that offence. You should be satisfied that each condition does not impose a limitation or restraint that is greater than what you consider the reasonable protection of the community requires, and that each condition is appropriate and adapted to what is reasonably necessary in the context of protecting the community.

It may assist to ask yourself: will this condition change the level of risk of the serious harm occurring and if so how? How will the effect of this condition protect a part of the Australian community from the harm? Is the individual subject to similar conditions (for example, parole conditions or state-based sex-offender registers with requirements), and what will this condition add?

[159]

I have considered the submission and the supporting documentation.

I note the individual has been convicted of at least one offence involving violence or sexual assault (refer to Attachment B2) therefore, I am satisfied that condition 8624 applies. I have considered the material included with the submission which provides details regarding the individual's offending. In relation to the manslaughter conviction in 2001, I note that the victim was pregnant at the time (refer to Attachment B3) however .... being pregnant does not constitute (in isolation) the classification of MOVP. Therefore, .... and the available information presented in the submission (in particular, the manslaughter offence), I'm not satisfied that the MOVP conditions (8612, 8615, 8622, 8623 and 8626) apply to this visa.

I have now turned my mind to all the mandatory conditions imposed on the visa along with the material included with the submission to determine if- in my view - this individual poses a substantial risk of seriously harming any part of the Australian community in a way defined in the regulations.

I note the individual's criminal history (refer to Attachment B2) included offending such as possessing dangerous drugs, wilful damage, obstructing a police officer, common assault, grievous bodily harm and manslaughter some of which of these offences resulted in imprisonment. I also note that the individual has spent a considerable amount of time in Immigration Detention (refer to Attachment B1).

I note that the individual has a history of alcohol and drug use but has been engaging with support services (refer to Attachment B4) including seeing a psychiatrist. I also note that the individual has informed the Department that he has children in Australia but is unaware of their whereabouts (refer to Attachment B3).

I note that in April 2025, the individual was considered by the Community Protection Board (refer to Attachment B7) who recommended to continue to impose condition 8621 and not to impose conditions 8617, 8618 and 8620.

I note that the individual has made Section 76E Representations (refer to Attachments B9 and B10) regarding conditions 8620 and 8621. I also note that the outcome of the S7E Representations have not been decided but I've taken into account the positions put forward by the individual in the Representations when making my decision.

I note that the individual is being considered by the Community Safety Order Taskforce (refer to Attachment B8) however, the outcome of this is yet to be determined.

Based on the submission, supporting documentation, mandatory conditions which apply to the visa and on the balance of probability, I am satisfied that this individual poses a substantial risk of causing significant harm to any part of the Australian community (as defined in the regulations). I have taken into account the expert advice provided by the Community Protection Board and agree with their recommendations to keep condition 8621 as it is reasonably necessary, appropriate and adapted to address the substantial risk this individual poses, to not impose conditions 8617 and 8618 and to remove condition 8620 from the individual's visa

[168]

In short, the applicant submits that the delegate's reasons "bespeak a failure to properly engage with the matters that he was required to genuinely consider".[103] In particular, the applicant submits there was no engagement at all in the delegate's reasoning with any consideration of why a monitoring device or curfew would be necessary, appropriate, or adapted to reduce the risk the delegate was satisfied applicant posed. The applicant had no history of night offending, or offending at particular places, or of evading authorities.[104]
The applicant further submits the delegate made findings that were not open to it, either because there was no material before him that could rationally support such finding, or there was material that contradicted the delegate's finding.[105] Thus, the applicant submits it was not rationally open to the delegate to find, and the delegate offered no intelligible justification for finding, there were "court transcripts" suggesting the applicant behaved with "particular brutality" and "without remorse";[106] and it was not rationally open to infer any risk of recidivism from the LS/RNR Form.[107] This last submissions is based on submissions directed to answers given to a number of questions which the applicant submits are either contradicted or not supported by the evidence,[108] and also on the basis of the submission that the LS/RNR Form was directed to assist in the making of a decision regarding "level of service". The applicant submits that, whatever that means, it does not mean risk of recidivism. The applicant also submits the delegate failed to make an obvious enquiry about the applicant's current risk profile, or how the applicant was actually behaving in the community to which he had been released. Had the delegate made such inquiry he would have elicited the Case Engagement Notes which showed the applicant was adjusting well.[109]
Counsel for the applicant repeated the substance of the written submissions in oral address. Counsel, however, referred to the fact that the inclusions of "appropriate and adapted" into the current cl 070.612A is a "fairly novel strategy", and submitted as follows:[110]

[179]

(a) Given the delegate had no obligation to give reasons for imposing the curfew and monitoring device conditions, the "Comments" paragraph at the end of the First Decision Record should be understood as a conclusory summary rather than as a complete statement of reasons for every finding recorded in the First Decision Record which was made by reference to the evidence or other material on which those findings were based. For these reasons, in determining whether there is an intelligible justification for the delegate's decision to impose the conditions, the Court can consider the material before the delegate, and not only the delegate's brief reasons.[114]

(b) The applicant's submission that the delegate's consideration must have badly miscarried and was irrational or was otherwise legally unreasonable, seek the drawing inferences based on an impermissibly close and critical scrutiny of the delegate's brief reasons.[115]

(c) There was evidence before the delegate that rendered it reasonably open to the delegate to make the findings the applicant submits were not open to the delegate to make.[116] The Minister refers to the following:

(i) The transcript of the applicant's sentencing hearing for manslaughter plainly provided a rational ground for the belief the delegate entertained.[117]

(ii) Material contained in a report by the Queensland Department of Corrective Services dated 5 July 2002 which recorded the applicant as blaming "mostly external factors which brought them together for her death, minimising the agency he played in her death"; and that the applicant "considered the victim morally wrong for her infidelity and considered her as a stupid and retarded individual who had to be told everything at least twice".[118]

(iii) A report by a consultant psychiatrist dated 27 October 2008 which reported that on 23 May 2002 the applicant was "found to have wilfully interfered with monitoring devices"; and he was "reported to have little insight into the offence, for which he blamed the Police, blamed the parents of the deceased, and said it was an accident".[119] In a later report dated 18 May 2010 the same consultant psychiatrist reported the applicant has a "personality disorder and a history of substance abuse"; that is "at high risk of further violent offences"; and when he was interviewed for the purposes of the consultant psychiatrist's October report, the applicant "showed little insight into the problems with his temper".[120]

(iv) A report prepared by a clinical and forensic psychologist dated 22 March 2010 who concluded the applicant "should be assessed as at least medium (moderate) level violence recidivism risk".[121]

(v) The Department Minute referred to International Health and Medical Services having reported on 19 April 2024 that the applicant has, among other things, "narcissistic personality disorder, insomnia, history of drug abuse and alcohol use, and history of abusive/aggressive behaviour".[122]

(d) Given the matters in (c), it cannot be said that the delegate's being satisfied as to the relevant matters in the current cl 070.612A(1) was a decision that no reasonable decision-maker could have arrived at; and although some of the material is several years old, it was nonetheless probative in relation to the applicant's risk profile and risk of recidivism.[123]

(e) The LS/RNR Form is self-evidently a risk assessment tool based on "a quantitative survey of offender attributes and situations relevant to decision-making", and, therefore, it was not irrational for the delegate to have regard to it. And even if the judgments contained in the assessment are contestable, or even shown to be factually wrong, that does not mean it was unreasonable for the delegate to rely on the assessment reflected in the LS/RNR Form.[124]

(f) The Case Engagement Notes did not constitute information that disclosed a critical fact.[125]

[182]

It is the case, as the Minister submits, that the delegate was not obliged to give reasons; and that, having given reasons, the delegate's not referring to certain matters could not by itself warrant the inference that the delegate did not consider those matters. It is also the case, however, that in the section of the First Decision Record headed "Comments", the delegate identified certain facts and matters on which he relied for concluding he should impose the curfew and monitoring device conditions; and it may be that inferences are available to be drawn about what the delegate did and did not consider from the facts and matters the delegate did and did not identify in the "Comments" section.
The facts and matters the delegate identified, and on which the delegate relied for his conclusion, could reasonably be seen to be relevant, and only relevant, to the assessment of the applicant's risk of reoffending. These were anger management issues, persistent criminal offending while in the community, the description in the court transcripts of the offences the applicant committed and their brutality, the applicant's absence of remorse, and the results of the "LS/RNR tool". The delegate, however, did not identify any facts or matters that could reasonably be seen to be relevant to assessing whether the imposition of the curfew and monitoring device conditions could reduce the substantial risk of reoffending the delegate was satisfied the applicant posed. The delegate simply stated his conclusion, after having identified the facts and matters relevant to the risk of future offending, that, on the balance of probabilities the imposition of the curfew and monitoring device conditions is reasonably necessary, appropriate, and adapted for the purpose of protecting any part of the Australian community from serious harm from the substantial risk the delegate was satisfied the applicant poses.
In these circumstances, it is reasonably open to find, and I find, that the delegate did not seek to identify or consider any facts or matters that could reasonably be seen to be relevant to assessing whether the imposition of the curfew and monitoring device conditions could reasonably reduce the substantial risk of reoffending the delegate found the applicant posed. Had the delegate identified and considered any such facts or matters, he would have included at least one of them in the "Comments" section, just as the delegate had included in the "Comments" section facts and matters the delegate considered to be relevant to assessing the applicant's risk of reoffending. It is also open to find, and I find, that the delegate did not attempt to identify, and therefore the delegate did not consider, facts or matters that could reasonably be seen to be relevant to assessing whether the imposition of the curfew and monitoring device conditions could reasonably be considered as reducing the substantial risk of reoffending the delegate found the applicant posed, because the delegate was satisfied that the applicant's posing a substantial risk of future offending was a sufficient reason for imposing the curfew and monitoring device conditions.
These findings are supported by another consideration. The Minister did not attempt to identify in the substantial material that was before the delegate anything that could reasonably have suggested to the delegate that the imposition of the curfew and monitoring device conditions could reasonably have been seen to reduce the substantial risk of reoffending the delegate found the applicant posed. The Minister instead made submissions about what he submitted was the general efficacy of curfew and monitoring device conditions to reduce the risk of reoffending. As I already noted, the Minister submitted that a monitoring device generally makes it easier for authorities to locate a person to monitor and observe their behaviour; and the curfew condition does not just reduce the risk of offending at night; it protects against the risk that a person may engage in anti-social behaviour that might, over time, increase the risk of offending at any time of the day.
Whatever the merits of the Minister's submissions as to the efficacy of the imposition of curfew and monitoring device conditions, the submissions relate to their efficacy in general. But the current cl 070.612A(1) does not authorise the Minister to rely on such generalisations as the sole basis for imposing the curfew and monitoring device conditions. If it did, the current cl 070.612A(1) would in effect compel, or at least in all cases permit, the Minister to impose such conditions because, in the Minister's submissions, such conditions, in general, operate to reduce the risk of reoffending. But that is not what the current cl 070.612A(1) requires the Minister to do. It requires the Minister to be satisfied that any one or more of the Prescribed Conditions, if imposed, would be "reasonably appropriate and adapted" to address the substantial risk of reoffending the Minister is satisfied a BVR grantee poses. As I noted earlier in these reasons, "reasonably appropriate and adapted" require that the only matters the Minister may consider when determining whether the imposition of one or more of the Prescribed Conditions could reasonably be supposed to reduce the substantial risk of reoffending are matters that relate to the particular circumstances of the BVR grantee.
A possible explanation for the delegate's (on my finding) not having identified, and therefore not having considered, facts and matters that can reasonably be seen to be relevant to whether the imposition of the curfew or monitoring device conditions could reduce the substantial risk of the applicant's reoffending is that it is difficult to envisage circumstances in which the imposition of curfew and monitoring device conditions could, in any particular case, reduce the risk of reoffending. That would reflect the plurality's observations in YBFZ that, "even if protection of the Australian community from the risk of harm arising from future offending were accepted to be a legitimate and non-punitive purpose, cl 070.612A(1)(a) and (d) are not reasonably capable of being seen as necessary for that purpose".[129]

[197]

(b) It may readily be inferred that the delegate was aware of the expertise of the CPB, and that it was entitled to rely on that expertise.[137]

(c) The delegate did not act unreasonably by relying on the CPB Decision only because that decision did not convey any "expert advice" in the sense of giving reasons that explained the basis of the CPB's reasons; and that is because the delegate is not a court, and therefore the delegate was not required to act in accordance with the rules of evidence. Moreover, the CPB does not have statutory functions, and otherwise is not required by legislation to give reasons with any prescribed content for its recommendations.[138] In those circumstances it would be "difficult to draw an inference that the decision has been attended by an error of law from what has not been said".[139]

(d) In any event, the CPB Decision demonstrates the CPB considered the suite of discretionary visa conditions, and provided brief reasons for not recommending the imposition of all of them, except for the monitoring device condition. Additionally, the CPB's recommendation to impose the monitoring device condition "was based, in part, on the applicant's "violent offending, and his substance abuse [which] has previously escalated his behaviour" and the [CPB's] view that "condition 8261 [sic] remains necessary for [the applicant] to reduce his risk of harm to the community". There were, therefore, no errors or omissions in the CPB's advice which "evidently emphasised the protective purpose of condition 8261 [sic]".[140]

(e) The applicant's submissions based on what the applicant says was the delegate's failure to make an obvious inquiry do not address the "usually high threshold for a conclusion that a power has been unreasonably exercised as a matter of law", and, therefore, there has been a failure to inquire about an obvious fact.[141] That required the applicant to characterise the documents about which the delegate ought to have made an inquiry as being "of themselves and in isolation, as a matter critical to the decision or as the subject of an obvious inquiry before making the decision".[142]

[199]

The core of the applicant's challenge to the Second Decision is the submission that the delegate simply adopted the opinions contained in the CPB Decision without the delegate herself considering the matters she ought to have considered, and without forming her own state of satisfaction in relation to those matters.
In considering the applicant's submissions, it is necessary, first, to refer to the Second Decision Record. As I have already noted, the Second Decision Record invites the delegate to note, or either to indicate satisfaction or non-satisfaction of, matters expressed in the very terms of the current cl 070.612A(1). This part of the Second Decision Record, therefore, does not expose any reasons for the matters in relation to which the delegate expressed satisfaction or non-satisfaction.
As is the case with the First Decision Record, however, the delegate identifies in the "Comments" section of the Second Decision Record particular facts and matters that are expressed in terms that do not repeat the conclusory statements of the current cl 070.612A(1). Those facts and matters may reasonably be considered to be relevant, and relevant only, to the assessment of whether the applicant poses a substantial risk of reoffending. The delegate noted, among other things, that "the individual's criminal history . . . included offending such as possessing dangerous drugs, wilful damage, obstructing a police officer, common assault, grievous bodily harm and manslaughter some of which of these offences resulted in imprisonment". The delegate also noted that "the individual has a history of alcohol and drug use but has been engaging with support services . . . including seeing a psychiatrist". As is also the case with the "Comments" section of the First Decision Record, the delegate does not identify any facts or matters that could reasonably be considered to be relevant to whether, given the substantial risk of reoffending the delegate found the applicant poses, the imposition of the monitoring device condition would reduce that risk.
Next, it is necessary to consider the CPB Decision because the delegate says she relied on it; and it is possible that, unlike the Second Decision Record, the CPB does identify facts and matters that can reasonably be considered to be relevant to assessing whether, given the substantial risk the CPB found the applicant poses, the imposition of the monitoring device condition could reasonably be considered to reduce that risk. When one turns to the CPB Decision, however, one sees the same pattern that appears in the First Decision Record and in the Second Decision Record.
The CPB Decision contains particular facts and matters, not expressed in terms of the conclusory statements contained in the current cl 070.612A(1), that could reasonably be considered relevant, and relevant only, to assessing whether the applicant poses a substantial risk of reoffending. As I have already set out earlier in these reasons, these facts and matters are contained in a section titled "Assessment of risk of serious harm to Australian community"; and they are that the applicant has convictions, including convictions for threatening to cause harm to a Commonwealth public official, grievous bodily harm, wilful damage, obstructing a police officer, possessing dangerous drugs, manslaughter, and common assault; the applicant has a history of alcohol and drug use; the applicant has spent a very long time in custody, is "very institutionalised", and he lacks insights and remorse for his offending, and "noted his concerning online habits"; and the applicant has engaged with support services, and is seeing a psychiatrist, but noted "the risks if he was to relapse with substance abuse". After identifying these facts and matters, the CPB concluded that it is of the view that the applicant "remains a substantial threat to the community, due to his violent criminal offending". The CPB then makes findings "[h]aving regard to the matters" expressed in the language of the current cl 070.612A(1). In the case of its recommendation that a monitoring device condition be imposed, the CPB specifically noted that it considered that the applicant's "violent offending, and his substance abuse has previously escalated his behaviour". That matter could only reasonably be considered to be relevant to the risk of the applicant's reoffending.
From the fact that the CPB Decision records facts and matters that could reasonably be considered relevant, and relevant only, to the assessment of the applicant's risk of reoffending, and the absence of any reference to any fact or matter that could reasonably be considered to be relevant to assessing whether the imposition of the monitoring device conditions could address that risk by reducing it, it is open to find, and I find, that the CPB did not consider any such facts or matters; and, for that reason, it did not consider that which the current cl 070.612A(1) requires the Minister to consider when determining whether to impose such a condition. It is also open to find, and I find, that the only basis on which the CPB concluded it was satisfied that the monitoring device condition should be imposed was its being satisfied that the applicant posed a substantial risk of reoffending.
These findings are supported by the structure of the CPB Decision. It uses the word "assessment" in a section that is "headed" "risk of serious harm to the Australian community";[143] and it is in that section that the CPB records its assessment of that risk, and facts and matters on which the CPB relied. The CPB Decision contains no separate section that has as its designated subject the assessment of whether imposing the conditions provided for in the current 070.612A(1) could reduce the substantial risk of reoffending the CPB considered the applicant posed. The structure of the CPB's Decision discloses a form of reasoning in which the CPB relied on a single premise for concluding the monitoring device should be imposed, namely that the applicant poses a substantial risk of re-reoffending. That is not the form of reasoning the current cl 070.612A(1) authorises the Minister to undertake.
As I have noted, however, the delegate relied on the CPB Decision, and the CPB in terms concluded that, on the balance of probabilities, the imposition of the monitoring device condition is reasonably necessary, and reasonably appropriate and adapted, for protecting any part of the Australian community from serious harm by addressing the substantial risk the CPB had identified in the CPB Decision. Is it open to find that, in those circumstances, the delegate did not reach the requisite state of satisfaction the current cl 070.612A(1) requires the Minister to reach before the delegate could have imposed such conditions? That question is to be answered in the affirmative; and I so find.
The delegate was entitled to proceed on the basis that the CPB Decision was made by experts, and the delegate, therefore, was entitled to rely on the CPB Decision and, indeed, arrive at the same conclusions the CPB arrived at, that the monitoring device condition should be imposed. But the determination whether the monitoring device condition should be imposed remained with the delegate. Before the delegate could reasonably have relied on the CPB's conclusion that the monitoring device condition should be imposed, expressed, as it was, in the conclusory language of the current cl 070.612A(1), it was necessary that the delegate herself understand the basis on which the CPB Decision arrived at that conclusion, and the matters which the CPB Decision considered. It also required the delegate to be satisfied that in arriving at its conclusions, the CPB considered the questions the current cl 070.612A(1) required the delegate to consider.
In these circumstances, the delegate could not reasonably have been satisfied that, in arriving at its conclusion that the monitoring device condition should continue to be imposed on the BVR that was issued to the applicant, the CPB considered one of the essential conditions of the current cl 070.612A(1), namely, that, given the substantial risk of reoffending the applicant posed, whether the imposition of the monitoring device condition could reasonably be considered to reduce the risk of the substantial risk. That is so for the reasons I have found (on the basis of the contents and structure of the CPB Decision) that the CPB did not consider any fact or matter that could reasonably have been considered to be relevant to assessing whether, given the substantial risk of reoffending the CPB considered the applicant posed, the imposition of the monitoring device condition could reduce that substantial risk.
That it was not open to the delegate to be reasonably satisfied that the CPB considered the matters the Minister is required to be satisfied of before the monitoring device condition could be imposed does not necessarily mean the delegate herself did not correctly understand the tasks the current cl 070.612A(1) required her to undertake. I am satisfied, however, that the delegate did not consider the matters the current cl 070.612A(1) required her to consider. In particular, I am satisfied the delegate did not consider whether, given the substantial risk of reoffending the delegate was satisfied the applicant posed, there were facts or matters that were reasonably relevant to assessing whether the imposition of the monitoring device condition would reduce that substantial risk; and, for that reason, the delegate did not consider that question. The matters on which I rely reflect the substance of the matters on which I rely for concluding that the delegate in making the First Decision did not consider that question. That is, in the Second Decision Record the delegate identified facts or matters that could reasonably be relevant, and relevant only, to the assessment of whether the applicant poses a substantial risk of reoffending; but the Second Decision Record does not record any fact or matter that could reasonably be considered relevant to assessing whether, given the substantial risk of reoffending the delegate was satisfied the applicant posed, the imposition of the monitoring device condition could reduce that risk. This finding is supported by the Minister's not having pointed to anything in the substantial material that was before the delegate that could reasonably have suggested to the delegate that the imposition of the monitoring device condition could reduce such risk.

[223]

(a) To determine whether the impugned regulations are repugnant to the Act it is necessary to identify any intention or scheme evidence in the Act, and then enquire whether the impugned regulations depart from that intention or scheme.[154]

(b) The relevant scheme and intention of the Act are found in s 76E and s 338(4)(c) of the Act. Beech-Jones J, in YBFZ, identified s 76E as falling within a suite of "due process" provisions in connection with the grant of a BVR.[155]

(c) The scheme that emerges from these provisions is that the Act confers a power that is capable of exercise without any duty by the repository of the power to afford procedural fairness to the non-citizen who is affected by the exercise of the power, but then introduces a mechanism by which the affected person's voice may be heard. That mechanism is the availability pursuant to s 76E of the Act of the right to make representations to the Minister and, if the Minister maintains the original position, the availability of review by the ART. The obvious purpose of this scheme is to allow the non-citizen to be heard on the question whether, among other things, the monitoring device condition should be imposed on the BVR visa granted to him or her.[156]

(d) The scheme referred to in (c) is undermined by the impugned regulations because they purport to permit the Minister to grant the non-citizen (without application) a fresh BVR (second BVR) that may be subject to the same conditions as a BVR the Minister may have previously granted to the non-citizen (first BVR), and in relation to which the non-citizen may have made representations pursuant to s 76E(4) of the Act. If the Minister chooses to grant a second BVR in these circumstances, that will result in the Minister not being required to consider the representations the non-citizen may have made in relation to the first BVR. Thus, if the impugned regulations are valid, there would be "nothing preventing further exercises of power under [reg] 2.25AB, again and again, to practically prevent" the consideration of the non-citizen's representations against the imposition of one or more of the conditions.[157]

[229]

Whether the Minister has such power turns on the proper construction of s 76E having regard to s 68(4) and s 68(5) of the Act. As I noted earlier in these reasons, and as the legislative note to s 76E(4) of the Act itself states, the effect of s 68(4) and s 68(5) is that a BVR (first BVR) ceases to have effect when a later BVR (second BVR) is granted.
Where the grantee of a first BVR makes representations to the Minister under s 76E(3) of the Act in relation to the imposition of one or more of the Prescribed Conditions, s 76E(4) imposes a duty on the Minister to consider the representations, and requires the Minister to grant a "second" BVR without one or more of the Prescribed Conditions to which the first BVR is subject if the Minister is not satisfied of the matters specified in s 76E(4). In these circumstances, it would be repugnant to the scheme established by s 76E of the Act, which includes the availability of merits review to the ART, if it were supposed that the Minister could grant a second BVD at any time during the Review Period. If such power existed, and the Minister exercised it, then, under s 68(5) of the Act, the first BVR would cease to have effect. That would render inoperative the rights conferred by s 76E(3) and s 338(4)(c) of the Act. That would be so because those rights are directed to the imposition of one or more of the Prescribed Conditions attached to a BVR; and those conditions are incapable of existing if the BVR in relation to which they were imposed ceased to have effect. If the conditions cease to exist because of the ceasing of effect of the BVRs to which they are attached, there would be nothing in relation to which the BVR grantee could make representations to the Minister pursuant to s 76E(3), or in relation to which the BVR grantee can make an application for review pursuant to s 338(4)(c) of the Act.
In truth, the Act does not confer power on the Minister to grant a fresh BVR during the Review Period. The avoidance of doubt to which s 76E(6) is directed is doubt that may arise in relation to the Minister's power to grant a second BVR at any time outside the Review Period that may apply to the first BVR. In these circumstances, reg 2.25AB or reg 2.25E will be repugnant if they purport to authorise the Minister to grant a second BVR at any time during the Review Period that relates to a first BVR. Do they so purport to authorise the Minister? I am satisfied they do not.
Reg 2.25AB(2) goes not further than granting a discretionary power on the Minister to grant a BVR. It does not by its terms authorise the Minister to grant a BVR when there is on foot a BVR in relation to which the BVR grantee has made representations under s 76E(3) of the Act, or has applied for review to the ART under s 338(4)(c) of the Act. As for reg 2.25AE, subreg 2.25AE(1) provides that where a BVR has been subjected to any one or more of the Prescribed Conditions, the BVR is to be subject to those conditions for 12 months; and subreg 2.25AE(2) provides that reg 2.25AE(1) does not prevent the Minister from granting a BVR before or after the 12 month period provided for in that subregulation. Reg 2.25AE(2) is entirely permissive, and does not in terms authorise the Minister to grant a second BVR where the first BVR is subject to a Relevant Period.

[233]

(a) Section 65(1) of the Act empowers the Minister to grant a visa, after considering a valid application for the visa, if satisfied that (inter alia) the prescribed criteria for the visa have been satisfied.

(b) Section 73 of the Act empowers the Minister to grant a bridging visa, without requiring a valid application, as follows: "If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa to the non-citizen to remain in, or to travel to, enter and remain in Australia: (a) during a specified period; or (b) until a specified event happens".

(c) Section 504(1) of the Act relevantly provides that "The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act".

(d) Regulation 2.25AB of the Regulations purports to confer on the Minister a discretionary power to grant a BVR to a non-citizen who is an eligible non-citizen under subregulations 2.20(18) or (19) "[d]espite anything in Schedule 1 and Divisions 070.2 to 070.4 of Part 070 of Schedule 2".

(e) Regulations 2.25AE(2) and (3) purport to confer on the Minister a discretionary power to impose conditions on the BVR grant before or after 12 months from the day the previous BVR grant was issued. The subsequent BVR is then subject to those conditions for a further 12 months from the day that visa was granted.

(f) Divisions 070.2 to 070.4 of Part 070 of Schedule 2 contain criteria for a Bridging R visa prescribed under s 31(3): reg 2.03(1).

(g) By purporting to empower the Minister to grant a BVR to an eligible non-citizen without application regardless of whether the non-citizen satisfies the criteria for the visa prescribed under s 31(2), regs 2.25AB and 2.25AE(2) and (3) are inconsistent with s 73 of the Act and are invalid.

(h) Further and alternatively, the conferral on the Minister of the power to grant a visa to an eligible non-citizen subject to conditions under regs 2.25AB and 2.25AE(2) and (3) is not a matter which is "required or permitted to be prescribed" or which is "necessary or convenient to be prescribed for carrying out or giving effect to this Act" and accordingly is beyond the regulation-making power conferred by s 504(1).

[241]

The applicant succeeds on grounds 1 and 3; he does not succeed on ground 4 to the extent the applicant claims reg 2.25AB and reg 2.25AE are repugnant to the Act; and the applicant fails on his claim that reg 2.25AB and reg 2.25AE are beyond the regulation making power conferred by s 504(1) of the Act. Given the applicant has succeed on ground 1, it is unnecessary to consider whether a writ of mandamus should issue in relation to the Minister's obligation that would have accrued on the applicant's having made the representations under s 76E(3) of the Act had the First Decision been validly made.
I next turn to the relief that should be granted to give effect to my conclusions. I have concluded that the delegate made a jurisdictional error on 14 November 2024 in deciding, purportedly pursuant to the current cl 070.612A(1), to impose the curfew and monitoring device conditions when deciding to grant a BVR to the applicant. The consequence of that conclusion is that the delegate's purporting to have imposed the curfew and monitoring device conditions on the BVR the delegate granted to the applicant on 14 November 2024 was and is of no legal effect. That does not otherwise affect the validity of the delegate's grant of the BVR. The appropriate remedy, therefore, is a declaration that the imposition of the curfew and monitoring device conditions on the BVR the delegate granted the applicant on 14 November 2024 was of no legal effect, and the BVR the delegate granted was not at any time subject to those conditions.
Given my finding that the imposition of the curfew and monitoring device conditions on the BVR granted on 14 November 2024 was of no legal effect, the representations the applicant made purportedly pursuant to s 76E(3) of the Act on the assumption that the delegate had validly imposed the curfew and monitoring device regulations are also of no legal effect. That means there was no Relevant Period that applied to the granting of the first BVR and, therefore, it was open to the delegate to grant a new BVR on 6 May 2025. Given, however, I have found that the delegate also made a jurisdictional error by having purported on 6 May 2025 to impose the monitoring device condition, the delegate's imposition of the monitoring device is of no legal effect, although that does not otherwise affect the validity of the granting of the BVR to the applicant on 6 May 2025. The appropriate remedy, therefore, is a declaration that the imposition of the monitoring device condition on the BVR the delegate granted to the applicant on 6 May 2025 is of no legal effect, and the BVR that was granted is not subject to that condition.
I will therefore make declarations. Out of an abundance of caution, I will grant the parties liberty to apply within 14 days after I pronounce orders for any other order the parties may wish to submit will give further or better effect to these reasons. I also propose to order that the Minister pay the applicant's costs, as agreed or as assessed.

At a glance

Court

Decision date

Source

Judgment (368 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (20)