Eru v Minister for Immigration and Citizenship [2025] FCA 709

(a) The issue of a writ of certiorari quashing the Tribunal's decision; and

(b) A writ of mandamus requiring the Tribunal to redetermine the applicant's application for review according to law.

1. The application is on the single ground that the Tribunal failed to comply with paragraph 8.1.2(b) of Direction No. 99, in that the Tribunal's finding at [125] of its reasons that the applicant's risk of re-offending "was in the moderate range" was illogical, irrational and/or legally unreasonable.
2. The ground is particularised as follows:

(a) The Tribunal found (reasons at [125]) that, while the applicant's overall likelihood of reoffending had been reduced as a result of her efforts at rehabilitation in prison, the applicant's risk of reoffending "was in the moderate range" given the "lack of community support and insecure accommodation and employment options available to her on release".

(b) Implicit in this finding was a finding that, before her rehabilitation efforts in prison, the applicant's risk of reoffending exceeded (or was within) the "moderate range"; and, on the evidence, it was not open to the Tribunal to make that implicit finding.

(c) Further or alternatively, on the evidence, it was not open to the Tribunal to make a finding as to the lack of community support or secure accommodation for the applicant on release from detention.

1. It is for the reasons which follow that the application is dismissed.

1. The relevant Ministerial Direction is Direction No. 99 which sets out the primary considerations and 'other considerations'.
2. Direction No. 99 identifies the primary considerations as:

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

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

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

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

(5) expectations of the Australian community.

1. The 'other considerations' are identified as follows:

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests

1. Paragraph 7 of Direction No. 99 provides further guidance on how the Tribunal is to apply the considerations.
2. Importantly, for the purposes of this matter, paragraph 8.1.2 of Direction No. 99 provides:

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

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

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

1. the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
   1. information and evidence on the risk of the non-citizen reoffending; and
   2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. In Minister for Immigrations and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248, the High Court confirmed that a decision may be vitiated by jurisdictional error where it is reached in a context that is legally irrational or illogical. Crennan and Bell JJ held that if a decision-maker arrives at a conclusion that no rational or logical decision-maker could have reached on the same evidentiary material, this may amount to jurisdictional error. Their Honours observed that an allegation of illogicality or irrationality is an allegation of the same order as unreasonableness, in the sense that the state of satisfaction required must be one that could be formed by a reasonable person. However, the mere fact that a different decision could have been made on the same evidence is not, by itself, sufficient to invalidate the decision. Their Honours also observed that not every lapse in logic will give rise to jurisdictional error: at [130].
2. While decisions may reflect different types of illogicality or irrationality, a decision will generally not be classed as legally flawed where it remains open to a logical or rational person to reach the same conclusion: SZMDS at [135].

1. Legal unreasonableness requires the applicant to demonstrate that the exercise of the power, in this case, under s 501CA(4), was so unreasonable that no repository of the power could have exercised the power in the way exercised. The question of whether a power has been exercised unreasonably is ultimately evaluative and depends on both the factual matrix and legislative context in which the decision was made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; [2018] 264 CLR 541, [59]-[60] (Gageler J, as his Honour then was).
2. Legal reasonableness is primarily concerned with the decision-making process itself. It requires that a decision be supported by transparent and intelligible reasoning, however, it also includes an assessment of whether the outcome is one that falls within a legally acceptable range. In Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, Gageler J observed that legal reasonableness involves determining whether the decision "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": (at [105]).
3. The standard for establishing legal unreasonableness is deliberately high. It is not enough for a party to simply disagree with the conclusion reached or the manner in which the discretion was exercised. The concept of legal unreasonableness is not a vehicle for expressing disagreement or preferring a different decision. Instead, a decision will only be set aside where it is shown to be irrational in the legal sense - where no rational or logical reasoning could support it: Li at [30] (French CJ), [108]-[113] Gageler J; CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634, [64], [65] (Moshinsky, O'Bryan and Cheeseman JJ).

1. The applicant conceded before the Tribunal that she did not pass the character test under s 501(6) of the Act, such that the central issue was whether there existed another reason to revoke the visa cancellation.
2. The Tribunal addressed carefully and thoroughly the primary considerations set out in Direction No. 99 as well as the other considerations.
3. As a part of that process, the Tribunal addressed [8.1.2] of Direction No. 99, which requires an evaluation of both:

(a) The nature and seriousness of the non-citizen's conduct to date; and

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

1. The Tribunal considered the nature of harm to individuals or the community should the applicant re-offend, concluding that harm would be "very serious". There is no challenge to that conclusion.
2. The Tribunal then evaluated the risk of the applicant re-offending if permitted to remain in Australia.
3. The Tribunal commenced by considering the applicant's rehabilitation efforts in prison, noting completion of the Wandoo Therapeutic Community Program (Wandoo Program) aimed at substance abuse treatment: R [108]-[112]. However, the Tribunal found "no evidence" available at the time of the hearing that demonstrated a reduction in her "current risk" of re-offending: R [113].
4. The Tribunal also referenced the fact that the applicant had been denied parole on the basis of her lack of support and absence of a viable release plan, which was also said to contribute to her elevated risk: R [114].
5. The Tribunal referred to the sentencing judge's remarks which referenced views expressed in a psychiatric report. While the psychiatric report had assessed an "elevated" risk of re-offending if she returned to negative influences and unstable accommodations, it found a "low risk" if she complied with medication and counselling. Nonetheless, the Tribunal expressed its' concerns about the limited information before it in relation to the effectiveness of the counselling in reducing (or further reducing) factors associated with an identified high risk of re-offending: R [117].
6. Despite evidence of a genuine desire to stay clean of substance abuse, the Tribunal found that instability in accommodation, parenting issues, and limited social supports made her reintegration into the community precarious: R [118]-[119]. Further, it noted that while the applicant's parenting responsibilities were a positive factor, they did not outweigh the applicant's lack of stability when in the community: R [122]-[123].
7. Community support services were acknowledged by the Tribunal but found to be insufficient to mitigate her re-offending risk to a "low" level: R [122]-[123].
8. Ultimately, the Tribunal accepted that her risk had been reduced as a result of prison-based rehabilitation, but only to a "moderate" level: R [124]-[125]. The applicant's ongoing treatment needs, unstable living arrangements and lack of a clear plan for re-integration contributed to this conclusion.
9. The Tribunal concluded that given the nature and seriousness of her offending, and the real risk the applicant posed to the Australian community if further offences occurred, the primary consideration of community protection weighed strongly against revocation: R [126].
10. After addressing each of the Direction No. 99 considerations, the Tribunal affirmed the cancellation decision.

1. The applicant submits that the Tribunal's reasoning, particularly within the framework of the primary considerations listed in Direction No. 99, was both illogical and unreasonable - in particular in relation to [8.1.2] of that Direction.
2. The applicant submits that while it is accepted in law that a decision-maker may determine that even a minimal risk of re-offending can justify visa cancellation where the consequences of such offending are serious (see CKL21 at [66]), the Tribunal did not apply this principle. The applicant submits that instead, the Tribunal based its reasoning on a positive finding that the applicant's risk of re-offending, although reduced through rehabilitation, was nonetheless "in the moderate range". The applicant contends that the use of this terminology suggests the Tribunal made a substantive evaluative judgment that required a sound evidentiary foundation, which was absent.
3. The applicant submits that the Tribunal itself recognised that there was no direct evidence before it concerning the applicant's current risk of re-offending. Therefore, any conclusion on the present risk must have been based solely on inferences drawn from the available material. The applicant submits that theses inferences lacked a rational foundation and that the Tribunal's reasoning in this respect was speculative.
4. The Minister submits that the Tribunal's conclusion that the applicant's risk of re-offending fell within the "moderate range", was open to it on the material before it. The Tribunal acknowledged that the applicant's risk had been reduced the level which existed before the applicant participated in rehabilitation, but it did not accept that the risk had fallen to a low range.
5. The Minister submits that the Tribunal's reasoning contained no element of illogicality or irrationality, in that the Tribunal had regard to the totality of the evidence before it and assessed the material as a whole before reaching its conclusion.
6. I accept the Minister's submission.
7. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574, 575, the High Court observed:

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. ...

1. That is precisely what the Tribunal did in this matter. That is, it took into account past matters and rehabilitation steps, but identified pitfalls which affected the efficacy of that rehabilitation. It was on that basis that the Tribunal evaluated the chances of future offending as moderate.
2. The Tribunal's finding was soundly based on the material before it.
3. Next, the applicant submits that the Tribunal's reference to the psychiatric report mentioned in the sentencing judge's remarks dealt with previous circumstances, in that the report was addressed to the applicant's position at the time of sentencing in 2020. The applicant submits that that report could not inform any assessment of the applicant's risk of re-offending in 2024.
4. The applicant submits that the Tribunal's reference to the Wandoo Program completion report and the parole refusal decision are similarly flawed. The Wandoo Program completion report referenced a generic treatment assessment that pre-dated her participation in the rehabilitation and thus did not reflect her current state. The parole refusal was based solely on her lack of a release plan and did not address her risk of re-offending. Accordingly, the applicant submits that neither source provided a basis for assessing a present risk.
5. The Minister submits that prior to completion of the Wandoo Program, the Tribunal had available to it the sentencing remarks which referenced the psychiatric report. That information identified factors which would reduce the risk of re-offending to a low risk. At the time the applicant was sentenced, those factors did not exist, such that on that basis, the Tribunal was entitled to conclude that the applicant's risk at the time of sentencing could not be characterised as low.
6. The Minister submits further that the Wandoo Program completion report indicated that whilst in custody and prior to rehabilitation steps, the applicant was at a high risk of re-offending. That elevated risk was also supported by the sentencing remarks and taken together provided a probative basis for the Tribunal's conclusion that the applicant's risk was not low.
7. I accept the Minister's submissions. The Tribunal considered carefully a range of material before it, all of which provided a rational basis for its finding as to the level of risk of the applicant re-offending prior to rehabilitation. That informed the future risk of re-offending in given circumstances: Guo at 575.
8. The applicant submits that having accepted that her risk had been reduced through rehabilitation, the Tribunal was obliged to evaluate the extent of that reduction. Instead, the applicant submits that the Tribunal failed to consider how effectively the applicant's substance abuse and trauma related issues had been addressed. It is submitted that this omission further undermined the reliability of the Tribunals conclusion regarding the applicant's current risk.
9. The applicant submits that the Tribunal had insufficient information to determine whether the Wandoo Program had specifically addressed the applicant's substance abuse or would reduce the risk of relapse post-release. The applicant also submits there was a lack of evidence as to whether counselling undertaken in custody had adequately addressed the applicant's ongoing trauma.
10. The applicant submits that the Tribunal's conclusion that her risk of re-offending remained moderate, despite recognised rehabilitative progress, was not grounded in any probative evidence and there was no material before the Tribunal from which it could rationally infer the degree of risk reduction. Consequently, the applicant submits the conclusion amounted to speculative reasoning.
11. The applicant submits further that the Tribunal's reasoning, that the applicant remained at risk due to an alleged lack of community and familial support post release, was based on untested assumptions. The Tribunal speculated on the sufficiency of support from the Agency Outcare and family without reliable evidence, rendering this aspect of the reasoning similarly unsound.
12. The Minister submits that in evaluating the risk of re-offending if the applicant were released into the community, the Tribunal properly took into account the findings of the Wandoo Program completion report. That report had identified unmet treatment needs which, if left unaddressed, would increase risks of relapse. The Minister submits that these findings were consistent with the sentencing remarks.
13. The Minister submits that the applicant's circumstances upon potential release were relevant to the Tribunal's risk assessment. The Tribunal accepted the applicant's own statement that her offending was linked to unresolved trauma and substance dependence. So, it is that, the Minister submits, the applicant's post-release conditions were properly considered in evaluating the risk of re-offending.
14. The Minister submits further that while the applicant had stated intentions regarding her post-release conduct, the Tribunal was entitled to assess those statements against broader contextual concerns. These included unresolved trauma, lack of familial and community support, uncertainty around child protection matters and limited release planning. Taken together, these factors prevented a conclusion that the risk of re-offending was low.
15. Still further, the Minister submits that the Tribunal's findings were consistent with the material provided by the Prisoner's Review Board, which identified a lack of adequate support and a viable release plan (R [114]).
16. Yet still further, the Minister submits that the Prisoners Review Board also highlighted that stable accommodation was a prerequisite for parole and this requirement remained unmet despite the same accommodation proposal being before both the Board and the Tribunal.
17. I accept the Minister's submissions. As I have noted, the Tribunal considered a range of factors, all of which provided a rational basis for its finding as to the risk of the applicant re-offending.
18. Next, the applicant submits that the Tribunal relied on an unstated and flawed assumption that the applicant's rehabilitation was incomplete or ineffective because it had not yet been tested outside of custody. The applicant submits that such reasoning is contrary to authority and was expressly criticised in CKL21 at [79]. The applicant submits that this assumption lacked both logical and legal validity.
19. The applicant submits that the Tribunal's finding constitutes legal unreasonableness, as it failed to demonstrate a logical and evidence-based pathway to its conclusion. The applicant submits further that as legal unreasonableness is a matter of characterisation rather than strict textual interpretation, the Tribunal's decision fell short of the required standard.
20. The question being considered by the Full Court in CKL21 was whether there was a probative basis for the Minister's finding that the appellant would re-offend by committing murder or a similar offence. The difficulty faced by the Minister in that matter was that the evidence "barely (if at all) supports any finding concerning the risk of re-offending in the same or a similar manner": at [80].
21. I accept that in CKL21 at [79], a conclusion or finding that a risk "cannot be ruled out" does not, of itself, logically establish the existence of a risk. However, that is not what the Tribunal did. The Tribunal considered all evidence of the applicant's circumstances in reaching its conclusion concerning the applicant's overall likelihood of re-offending against identified factors including, without limitation, the lack of support and unmet treatment needs.
22. It is for those reasons, that I do not accept the applicant's submissions that the Tribunal proceeded an unstated and flawed assumption.
23. It follows from what I have set out above that the applicant's contention that there was no basis upon which the Tribunal could conclude, implicitly, that before rehabilitation, the applicant's risk of re-offending extended (or was within) the moderate range, and it was not open to the Tribunal to make that finding, cannot succeed. There was abundant material to support the Tribunal's finding the applicant's risk of re-offending was "in the moderate range".

1. It is for these reasons that the application for judicial review should be dismissed.
2. The applicant is to pay the Minister's costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.