Mao v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 289

I write this letter in my capacity as an Associate Professor at RMIT University in Melbourne. For over one year Ms Mao has been an integral part of "Changing Faces Think Tank" - which I run at Dame Phyllis Frost Centre (DPFC) where she has been incarcerated. I write this letter to outline her outstanding extraordinary participation as well as unflinching dedication to this program.

In this prison-based Think Tank participants have comprised of [sic] about ten incarcerated people and five [of] RMIT's higher education criminal justice students. Our aim is to create practical strategies, based on lived experience of the criminal justice system, to reduce the likelihood of people returning to prison and generally improv[e] their quality of life in prison and upon release. These suggestions are discussed with representatives from Corrections Victoria for inclusion in prison-related policies. Each fortnight, over the last year, Ms Mao has had many innovative, thoughtful, and fruitful suggestions on all the topics which we have discussed; this has included: creating engaging content on the intranet for people in custody; enhancing safety and security for those incarcerated and working in prison settings; introducing healthy food options for people in custody; improving family and other connections for people in custody, etc.

In conclusion, Ms Mao has been an invaluable part of this program which I have been running at DPFC for over eight years. In my opinion, she has an impeccable work ethic and is genuinely a supportive person. She clearly has incredible potential for engaging in criminology-related education and I am hopeful that I will continue to work with her upon her release on initiatives to reduce offending and re-offending in some capacity.

1. Her second letter dated 21 September 2023 was in these terms (omitting formal parts):

I write this letter in my capacity as an Associate Professor at RMIT University in Melbourne. For over one year Ms Mao has been an integral part of "Changing Faces Think Tank" - which I run at Dame Phyllis Frost Centre (DPFC) where she has been incarcerated. I have already written a letter to outline her outstanding extraordinary participation as well as unflinching dedication to this program. In this letter I am explaining the decision-making process of the Adult Parole Board and offence-specific rehabilitation and treatment which has been arranged for Ms Mao if she is paroled.

The Victorian Parole Board assess a prisoner's suitability for release on parole. The Parole Suitability Assessment is comprehensive and covers a wide range of issues including the prisoner's risk to the community, employment background, family and social life, drug and alcohol use history, prison behaviour, proposed accommodation if released on parole, and more. The board carefully considers risk of reoffending as a major element in its assessment of offends. Since [the applicant] has been granted parole at the earliest opportunity, this means that the Parole Board must have concluded that she does not pose a risk to the community.

In addition, I have assisted Ms Mao in securing a well-known and reputable psychologist, Ms Amanda Wallis - letter attached - who has agreed to provide Ms Mao with offence specific rehabilitation and treatment if she is released on parole.

1. At the hearing before the Tribunal, Dr Martinovic was relevantly cross-examined (via telephone) as follows (see transcript at pages 118 to 120, exhibited to the affidavit of Ms Roeger dated 3 September 2024 at pages 121 to 123):

MS ROEGER: Dr Martinovic, are you able to hear me clearly?---Yes, I am.

Thank you. Just referring to your statements and it doesn't include in the statements your qualifications, so I just want to ask a few questions to clarify that?---Sure.

Do you have any qualification in psychology?---No, I don't. I have an undergraduate degree in criminology which is composed of sociology and psychology. So it's a mix, but it's a degree in criminal justice. And then I have a master of art by research in criminology, which is also a mix of sociology and criminology. And then I have a PhD - a doctorate by research - which is also in criminology.

...

So are you aware that [the applicant] was convicted of eight offences?---Yes, I am.

And that she pleaded guilty to those offences?---Yes, I am.

And that they occurred over a period spanning more than two years?---That's correct. Yes, I am aware.

And are you aware that the total value of the loans obtained was more than $9 million?---Yes, I am, as per what she has sent me and [the] documents we've just been referring to. Yes, that's all specified there, yes.

Thank you. You refer in your statement to the Think Tank program that you run in your role that's at the Dame Phyllis Frost Centre?---Yes.

You mention in your statement that there's 10 incarcerated people and five criminal justice students involved?---Correct.

For each of those sessions, how long do they go for?---So they go for two hours every fortnight throughout the year.

And for those sessions, is that - so there's 15 people sitting in a room discussing those topics?---Correct. But also we have stakeholders who attend meetings and that [includes] stakeholders from Corrections Victoria, Department of Justice, [Justice Health], prison administration, management, people like that who come in and ask questions and they give us, I suppose, tasks to do. And then the group works through those tasks and says what the problems - operational problems are - and how to best find, I suppose, solutions - most workable solutions to those problems. So it's like advocacy work essentially.

...

And these sessions that are run, what's the focus of the sessions, in terms of the discussion?---So the focus of the sessions is to reduce reoffending. So reduce the likelihood of women in this case coming back to prison. And improving the likelihood that people will, you know, stay out and not come back to prison. That is the sole one aim.

...

... And so is it fair to say that these discussions are not coming from an individual perspective of any of the people in the room, but it's broader policy work?---They are definitely coming from an individual perspective, because people go through an incarceration experience on the understanding [of] the impact that this has on them. So they all talk about their own personal journey, and that's how they're trained. So, for example, how do they find the food in the compound? They can talk about their own experience. ...

...

And how long, to your recollection, was Ms Mao participating in a Think Tank program?---The entire this year. I think she started in February. That's what I'm pretty sure I say in the letter.

So from February to her release from prison in September?---That's correct. ... I think this is also very important. So this is completely voluntary work. The women who are incarcerated get nothing for this participation and doing this work. So it was [in] a voluntary capacity. I also run the program [in] a voluntary capacity and the women attend the program all [in a] voluntary capacity.

Right. So fortnightly from February this year until September. And each of the sessions in this period, were you in attendance?---Yes, I was. Every single time.

1. On 9 October 2023, the Tribunal affirmed the delegate's non-revocation decision (the Tribunal decision). See Mao v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3182.
2. On 16 October 2023, the applicant sought judicial review of the Tribunal decision in this court.
3. At the hearing before me on 10 September 2024, the applicant, represented pro bono by Mr Dour of counsel, relied on an amended originating application for review of a migration decision dated 9 August 2024 (the amended originating application) containing eight grounds of review. Mr Dour said at the outset of his oral submissions that he would deal with grounds 1, 6 and 8 together, grounds 2, 3, 4 and 7 together and ground 5 separately. Mr Dour also said that he did not intend to make oral submissions about grounds 2, 3, 4 and 7, and was content to rely on the applicant's written submissions dated 9 August 2024 about them.
4. Mr Dour also mentioned two other letters at this hearing:

(a) a letter dated 29 August 2023 from Ms Tegan Cottell-Moore, a counsellor with the Specialist Trauma Service of the Western Region Centre Against Sexual Assault (WestCASA), which as the Tribunal put it "annexed [a] summary of the Applicant's work in the kitchen area at Dame Phyllis Frost Centre"; and

(b) a letter dated 21 August 2023 from Ms Linda Moore, an officer from the Department of Justice and Community Safety who worked at the DPFC.

However, neither letter was mentioned in the applicant's 16-page amended originating application, and in any event the submissions that were made about them before me did not amount to anything.

1. At [80]-[82] of its reasons, the Tribunal said:

Evidence of Associate Professor Martinovic

Associate Professor ("A/Prof") Martinovic adopted her two letters as true and correct. She stated that her correspondence with the Applicant is in an official capacity on behalf of RMIT and relates to the "Think Tank Program" she runs at DPFC. This consists of fortnightly sessions of two hours each, which is the predominant context for her engagement with the Applicant between February 2023 and when she left prison in September 2023. Recently the Applicant asked A/Prof Martinovic for a supportive statement and assistance to locate a psychologist for offence-specific rehabilitation. A/Prof Martinovic said she did both and psychologist Ms Wallis "volunteered to take on Ms Mao". She said the Applicant was unable to do offence-specific rehabilitation in custody because "there is no financial specific counselling - full stop - it just doesn't exist". A/Prof Martinovic said she works with organisations to provide this support for people "engaged in white collar crime".

A/Prof Martinovic said the Applicant provided her with a copy of the Minister's submissions, so she is aware of the crimes committed. In response to questions from Ms Roeger, A/Prof Martinovic agreed she has no qualifications in psychology or psychiatry. She also confirmed that she has no experience on the Adult Parole Board and had not seen any of the documents relevant to the Board's decision regarding the Applicant. A/Prof Martinovic stated the Adult Parole Board undertakes a "complex risk assessment process" and while she was not "privy to [the applicant's] risk assessment", she consulted the Parole Board website which "lays out the considerations". A/Prof Martinovic opined: "If they are of the belief they'll reoffend, there's absolutely no way they would release a person like that". When challenged by Ms Roeger that some risk can be managed with parole conditions, A/Prof Martinovic insisted "there's a significantly low risk" because the "Parole Board does not make risky decisions ... they don't just dish it out".

It was put to A/Prof Martinovic by Ms Roeger that given her limited contact with the Applicant, she is not well placed to provide risk assessment. A/Prof Martinovic said she had "done a lot of work in this area" and claimed that "the nature of [the applicant's] offending is not a high-risk category". She has done some work in corrections and believes "you don't need to be [a psychologist or psychiatrist] to predict reoffending". In relation to the Applicant having offended despite being in a stable, high-paying job with other protective factors, A/Prof Martinovic opined: "That often happens - it's not an anomaly to the norm from a criminological point of view". When asked if she appeared in this proceeding as an expert or a lay witness advocating for the Applicant, A/Prof Martinovic said she did not know how to answer that question but relies on her expertise and referred to appearances in other proceedings as an expert.

(Citations omitted.)

1. When the Tribunal came to the question of the applicant's prospects of rehabilitation and the recidivism risk, it said at [104]-[106]:

In terms of rehabilitation, the Court concluded that the Applicant has "very good prospects of rehabilitation". Her previous lawyer referred to her "progress in self-rehabilitation" and that any "future reoffending is highly unlikely". In response to the Respondent's claim that she has not undertaken offence-specific rehabilitation, the Applicant agrees, claiming "there are none". She refers to recent assistance from A/Prof Martinovic by putting her in touch with clinical psychologist Ms Amanda Wallis, with whom she intends holding "regular sessions" if released. On 21 September 2023, proximate to the commencement of the hearing, the Applicant lodged a letter from Ms Wallis, addressed "To Whom it May Concern". Ms Wallis states she is "happy to work with this client in the future". The letter does not disclose what this "work" may entail or for what purpose.

The Applicant refers to her good behaviour in custody, employment in the prison kitchen, and counselling from Mortgage Stress Victoria. She has completed several vocational and self-development courses while imprisoned and also commenced counselling with trauma services provided by WestCASA. The Applicant did not meaningfully elaborate on her documentary claim that future counselling plans include a desire to address "traumas experienced throughout [her] life".

In terms of recidivism risk, there is no expert evidence from a suitably qualified person such as a psychologist or psychiatrist. In her reply submissions dated 21 September 2023, the Applicant disputes the Respondent's contention that she constitutes a "very real prospect" of reoffending, claiming this "flies in the face of a mountain of evidence-based assessment by numerous professional witnesses". She claims her risk of reoffending is so low as to be negligible and can be safely disregarded. Support for this is drawn from counsellors at WestCASA and Mortgage Stress Victoria, A/Prof Martinovic, a kitchen supervisor at DPFC, and an employee from the Department of Justice who wrote a supportive reference. She submitted that the Respondent has overlooked "cultural, familial and gender contexts" of her offending, past "psychological trigger points", and incorrectly assumed that greed motivated her crimes. The Applicant contends she did not need the money. Additionally:

(a) The Applicant stated in revocation submissions: "I have no intention ... of ever participating in such deceptive conduct ever again".

(b) Written submissions by the Applicant's former lawyer state: "Ms. Mao, has a very low or minimal tendency and likelihood to reoffend, given its impact on herself and her family as she has a greater desire to improve her family's prospects for the future". It is further stated that because of the Applicant's "deep remorse and regret, there is only a minimal or remote chance of any reoffending".

(c) In reply submissions dated 21 September 2023 the Applicant claims she "is of an age, educational and sobriety level" that "strongly suggests risk of re-offending is low to negligible [and hers] is truly a case where the risk may be so low that it must properly be disregarded, as per CKL21, or alternatively, ought to be given little to no weight". She claims to have been "repeatedly assessed, by expert professionals and by the Parole Board, whose very reason for existence is the assessment and protection against risk, as having low or negligible risk of reoffence". The Tribunal notes, however, that the Parole Order provided detail[ed] information such as date of release, reporting and compliance requirements, and terms and conditions. There is no reference to the Applicant's recidivism risk.

1. At [112], the Tribunal observed that the applicant "did not adduce expert evidence about her recidivism risk, which would have been relevant". In support of this proposition, the Tribunal cited Mortimer J (as her Honour then was) in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595 at 618 [72], in turn drawing from RJE v Secretary to Department of Justice [2008] VSCA 265; (2008) 21 VR 526 at 531-532 [16]-[17] (Maxwell P and Weinberg JA) which relevantly states that "the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion".
2. As to the professional expertise of Dr Martinovic (and others), the Tribunal said at [113]:

The Tribunal does not accept the Applicant's contention that a counsellor from WestCASA, or social worker from Mortgage Stress Victoria, or kitchen supervisor at DPFC, or A/Prof Martinovic, or a Department of Justice employee are "experienced professional witnesses" qualified to assess recidivism risk. For example, Ms Rachel Tobias of Mortgage Stress Victoria stated in a letter dated 19 July 2023: "It is my professional opinion that [Ms Mao] is at low risk of recidivism". Ms Tobias is a social worker and does not appear to hold any qualifications relevant to making an expert opinion about risk. Ms Tobias refers to the Applicant as her "client" and much of what is submitted constitutes advocacy. The Tribunal places little weight on Ms Tobias' opinion regarding recidivism risk.

1. The Tribunal then set out an extract from Dr Martinovic's second letter dated 21 September 2023, and continued at [115]-[119]:

A/Prof Martinovic stated she feels qualified to provide a risk assessment and does not need to be a psychologist or psychiatrist to do so. The Tribunal respectfully disagrees. There is no persuasive evidence that the work undertaken by a criminologist qualifies them to make risk assessments. Psychologists and psychiatrists on the other hand are trained to apply clinical judgement and actuarial instruments in making such assessments. A/Prof Martinovic's contact with the Applicant is limited and her opinion is expressed without regard for almost all the evidence tendered. Moreover, her comments about how the Adult Parole Board assesses recidivism risk is pitched at a high level of generality and without access to the documents considered in the Applicant's parole case. Her opinion seems founded exclusively on inferences from the Board's website. It is also noteworthy that the risk assessment undertaken by the Tribunal in the context of determining "another reason" for revocation, is different, contextually, to the Adult Parole Board's task.

Notwithstanding A/Prof Martinovic's claim that she appears at this hearing as an expert witness, her evidence did not conform with the Tribunal Guideline for Expert and Opinion Evidence. This includes having an overriding duty to provide impartial assistance to the Tribunal on relevant expert knowledge or experience, not being an advocate for a party to a proceeding, and satisfying certain report requirements. On balance, little weight is placed on the predictive validity of A/Prof Martinovic's risk assessment.

In the absence of relevant expert evidence, the Tribunal does not accept the Applicant's uncorroborated claims about "cultural, familial and gender contexts" or historical "psychological trigger points" to explain her offending. It is noteworthy these and other factors invoked at the current hearing have only been recently advanced. The Tribunal also does not accept the Applicant's claim during oral evidence that her offending would not have continued even if the criminal enterprise had not been detected. The persistence of her participation for over two years conflicts with this assertion.

Having regard for the persistence of the Applicant's past offending, the conditions under which it occurred, the revisionist nature of aspects of her evidence, and her unmet rehabilitation needs, she constitutes a real risk of reoffending that is more than minimal or negligible. This is so despite the protective factors invoked.

When the Applicant's serious offending is coupled with a real risk of recidivism, this primary consideration weighs substantially against revocation.

1. The applicant relied on her amended originating application, which contains extensive particulars subjoined to each ground and therefore runs to 16 pages.
2. In the course of this proceeding, no particular reference was made to the amended originating application, and each ground was summarised without difficulty by counsel in their respective written submissions. That said, it is as well to set out the grounds without the voluminous particulars, as follows:

Ground 1: The Tribunal made an error of law and fact in finding that the applicant's expert, Associate Professor Martinovic, was unable to express an opinion as to the applicant's risk of reoffending by reason of Associate Professor Martinovic not being a psychologist or psychiatrist, and thereby giving little or no weight to that expert opinion.

Ground 2: The manner in which the Tribunal conducted the questioning of [Associate] Professor Martinovic would convey to a reasonable lay observer an apprehension of bias.

Ground 3: [The] Tribunal prevented and thereby failed to exercise jurisdiction by excluding itself from considering relevant evidence in the review, and failed to give Associate Professor Martinovic the opportunity to give that evidence, namely, evidence as to what actuarial assessments the Parole Board used in the applicant's case and, further or alternatively, failed to make critical enquiries about that evidence, the existence of which was easily ascertainable by further questioning and/or a subsequent invitation for comment.

Ground 4: Having regard to the allegations in Grounds 2 and 3 hereof, and had the Tribunal not questioned Associate Professor Martinovic in the manner in which it did, the Tribunal would not have erred, as it did, in finding that Associate Professor Martinovic lacked impartiality as an advocate for the applicant.

Further and/or alternatively, it was illogical, unreasonable, and/or irrational for the Tribunal to find that Associate Professor Martinovic was not an impartial witness ...

Ground 5: In considering the protection of the Australian community from criminal or other serious conduct, and contrary to the conclusion of Associate Professor Martinovic that the applicant posed a low risk of reoffending, the Tribunal erred in law and in fact[:]

(a) [in finding that] the applicant constituted a real risk of reoffending that is more than minimal or negligible having regard to the persistence of the applicant's past offending, the conditions under which it occurred, the [revisionist nature] of aspects of her evidence, and her unmet rehabilitation needs;

(b) [in finding that] when the applicant's serious offending is coupled with a real risk of recidivism, this primary consideration weighs substantially against revocation; [and]

(c) in the assessment of the applicant's evidence ... [and] in the manner in which it relied on Maxwell v R (1996) 184 CLR 501 and [other] cases ...

(a) made findings against the weight of the evidence and/or in the absence of evidence or otherwise lacked an evidentiary foundation;

(b) made findings on a speculative basis and/or without a probative basis; [and]

(c) unreasonably, illogically or irrationally so found.

The Tribunal failed to consider factors, [or] further or alternatively erred in the weighing of the factors, going to reoffending if the applicant were to be released back into the Australian community in circumstances where her husband and Mr Niu would at that time be deported to countries outside Australia.

Ground 6: In considering the protection of the Australian community from the criminal or other serious conduct, the Tribunal failed to consider the relevance of the different conditions under which the applicant would be released into the community compared with the conditions under which the offending occurred. This was a distinct and significant feature of the [applicant's] claims.

Ground 7: By reason of the particulars subjoined to Grounds 2, 3, 4, 5 and 6 hereof, the Tribunal failed to consider claims and evidence in that:

(a) the Tribunal failed to consider, [or] further or alternatively illogically, irrationally or unreasonably found, that the applicant did not adduce expert evidence about her recidivism risk which would have been relevant in terms of the courses the applicant had taken whilst incarcerated ... The Tribunal did not consider or provide any intellectual justification in relation to the submission that the applicant had undertaken almost a year of general rehabilitation to reduce reoffending by her attendance in Associate Professor Martinovic's course, being a course endorsed by the Department of Corrections Victoria and provided to over 300 incarcerated women at the compound at which the applicant was held[; and]

(b) the Tribunal did not consider the claim that the applicant would continue to receive reoffending treatment from [Associate] Professor Martinovic after release from incarceration as the applicant had submitted ... (in addition to the targeted rehabilitation prospectively offered through Ms Wallis ...) [or] further or alternatively, thereby erred in finding ... that the applicant had an "unmet" rehabilitative need in prospectively to undertake [sic] Ms Wallis's course when that rehabilitation course would be complementary to the applicant's rehabilitation counselling that she would continue to receive from Associate Professor Martinovic. In the premises, the Tribunal further erred in concluding ... that the applicant's serious offending coupled with the risk of recidivism weighed against revocation as the finding of the risk of recidivism being a "real risk" was made without an intellectual justification as to why that risk remained real when the applicant would be continuing to receive rehabilitation from Associate Professor Martinovic who had assessed the risk of recidivism as significantly low independent of any rehabilitation counselling the applicant would be receiving upon release.

Ground 8: The Tribunal constructively failed to exercise jurisdiction by finding that it could not accept the "uncorroborated claims about 'cultural, familial and gender contexts' or historical 'psychological trigger points' to explain her offending" ... in circumstances where:

(a) these factors were not submitted as reasons to "explain the offending" but as factors relevant to the risk of recidivism;

(b) the factors do not require expert evidence for the Tribunal to consider them;

(c) the factors are to be considered as part of the "conditions under which" the offending occurred or did not occur;

(d) are not factors different in kind to factors the Tribunal was prepared to, and did, consider against the applicant without the benefit of expert evidence, namely, the "considerable pressures" ... (and even though that matter was [the] subject of oral expert evidence of Associate Professor Martinovic);

(e) [these] are factors necessary for the Tribunal to consider as constituting "where relevant" factors in Direction 99[; and]

(f) the factors are necessary to be considered in order to reach a decision in accordance with the requirements set out in Splendido.

1. As I said, counsel for the applicant grouped the grounds together for the purposes of his oral submissions, so I will do likewise.

1. Ground 1 alleged that the Tribunal erred in failing to give weight to the expert evidence of Dr Martinovic because the applicant failed to adduce relevant evidence of the kind identified by Mortimer J in Splendido at 618 [72] (see [112] of the Tribunal decision) and because Dr Martinovic was not qualified to give such evidence as she was not a psychologist or psychiatrist (see [115] of the Tribunal decision).
2. First, the applicant submitted at [29] of her written reasons, and the Minister did not dispute as a matter of principle, that opinions based on specialised knowledge or experience can be admissible as expert evidence quite apart from studied experience, citing Heydon JA in Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at 743-744 [85].
3. Secondly, it was submitted at [30] of the applicant's written submissions that Dr Martinovic had over 20 years' experience in the system, had studied psychology subjects as part of her criminology degree and had assessed people for parole for Corrections Victoria based on actuarial instruments used by psychologists and psychiatrists. In that regard, it was also submitted that it was relevant that Dr Martinovic gave evidence before the Tribunal that she had given evidence and provided reference letters for similar kinds of cases, including for the parole board and court processes.
4. Thirdly, the applicant submitted at [31], and again the Minister obviously did not dispute, that the Tribunal is not bound by formal rules of evidence. Counsel also referred to clause 7(1) of Ministerial Direction No 99 (Direction 99) which provides that, in making a decision, "information and evidence from independent and authoritative sources should be given appropriate weight". He also referred to clause 8.1.2(2)(b)(i), which provides that, in assessing the risk that may be posed by a non-citizen to the Australian community, decision-makers must have regard to "information and evidence on the risk of the non-citizen re-offending".
5. Fourthly, it was submitted at [32], and again the Minister did not say otherwise, that there is no prescription in Direction 99 that expert evidence about the risk of reoffending must be given by psychologists or psychiatrists.
6. Fifthly, the applicant submitted the following at [35] and [36] of her written submissions:

The evidence of Ms Martinovic was that the purpose of the Think Tank program that she taught to incarcerated people was as follows: "the focus of the sessions is to reduce reoffending. So reduce the likelihood of women in this case coming back to prison ... That is the sole one aim". Ms Martinovic assessed the risk of recidivism as "significantly low risk" in that context. Ms Martinovic felt she could "actually make that claim" about the nature of the reoffending having regard to the reoffending category of the applicant.

Ms Martinovic affirmed her expertise to give the opinions that she gave. Further, Ms Martinovic rejected the Tribunal's suggestion that only a psychologist or psychiatrist could predict reoffending through the use of actuarial instruments and relied on her own experience in Corrections Victoria. Further, her evidence was predicated on an understanding of the actuarial instruments used by the Adult Parole Board.

1. During his oral submissions for the applicant, Mr Dour sought to tender a "Parole Manual" published by the Adult Parole Board of Victoria in March 2017. He said that this manual "contains certain information about the manner in which the Parole Board undertakes an assessment of an applicant for parole, and [there are] certain matters in that that would support various matters that have been alleged in relation to the way Ms Martinovic's evidence was sought to be given at the hearing". See transcript at page 2. Mr Dour also contended that the manual "refers to how [the board] categorise[s] ... offences", "show[s] that it's entirely possible ... that there isn't an actuarial instrument applied at all" and "sets out various considerations for offenders". See transcript at pages 28, 30 and 41. Whatever the relevance of this manual, it was not before the Tribunal. I therefore reject the tender.
2. Mr Dour also sought to tender a letter from the applicant's New Zealand parole officer stating that "the applicant requested offence specific rehabilitation while she was on parole in New Zealand, and she was denied that because they said she didn't have a rehabilitative need". See transcript at pages 42 and 43. Again, whatever doubtful relevance that might have, the letter was not before the Tribunal. I therefore reject the tender.
3. There is no merit in ground 1.
4. As the High Court said in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 at 598-599 [24] (Kiefel CJ, Keane, Gordon and Steward JJ):

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

(Citations omitted.)

1. And as Abraham J said in De Silva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 831 at [35]:

It should be uncontroversial that the Tribunal's task was to make its own assessment of the applicant's likelihood of re-offending ... It follows that the Tribunal was not obliged to accept the evidence of [the forensic psychologist]. Nothing said in Assistant Minister for Immigration & Border Protection v Splendido [2019] FCAFC 132 at [72] per Mortimer J (with whom Moshinsky J agreed), citing RJE v Secretary to the Dept of Justice [2008] VSCA 265 says otherwise. Indeed, in YKSB Mortimer J observed at [45]:

The assessment of the level of risk posed by the applicant was a matter for the Tribunal. It could derive assistance from expert evidence but ultimately its task was to reach its own conclusion, which it did. ...

1. Here, the Tribunal gave cogent and justifiable reasons for affording Dr Martinovic's evidence "little weight". And there is nothing remotely in the Tribunal's reasons which takes the Tribunal outside the bounds of rationality and reasonableness.
2. Further, contrary to the suggestion made by the applicant, and as counsel for the Minister submitted at [13] of the written submissions dated 3 September 2024, nothing in the Tribunal's reasons indicate that it sought to apply the principles of evidence law to Dr Martinovic's evidence.
3. As Mortimer J said in YKSB v Minister for Home Affairs [2020] FCA 476 at [45]:

Further, the Tribunal was entitled to use [the clinical and forensic psychologist's] opinions in a way she did not, provided such use was procedurally fair and not irrational or illogical. ... It did not have to be persuaded by what the applicant's family said. Nor by what the applicant or [the other clinical and forensic psychologist] said. It could make its own assessment, within the bounds of rationality and logic. That is what it did. The assessment of the level of risk [of reoffending] posed by the applicant was a matter for the Tribunal. It could derive assistance from expert evidence but ultimately its task was to reach its own conclusion, which it did. It explained why it did so in an intelligible way.

1. And so it is in this case.
2. I agree with the submission of Mr Barrington on behalf of the Minister at [14]-[16], which stated as follows:

The Tribunal did not place little weight on Ms Martinovic's report solely because she was not a psychologist or psychiatrist. The Tribunal must have understood that experience alone could be relevant, because it later said that the Tribunal's guidelines included "having an overriding duty to provide impartial assistance to the Tribunal on relevant expert knowledge or experience". The Tribunal was also concerned with the fact that Ms Martinovic's contact with the applicant was "limited", that she expressed an opinion "without regard to almost all the evidence tendered", and that her comments about the parole board were "pitched at a high level of generality" and "seem[ed] founded almost exclusively on inferences from the Board's website". These factual findings show that the Tribunal looked also to Ms Martinovic's experience before concluding that her opinion was not particularly probative.

Even if the Court concludes that the Tribunal's decision was based solely on Ms Martinovic's lack of relevant qualifications, that is not sufficient to demonstrate unreasonableness. It was open to the Tribunal to conclude that a criminologist did not have the expertise to make a risk assessment, because there was no evidence before the Tribunal that criminologists (unlike psychologists and psychiatrists) were trained to apply a clinical judgment and use actuarial instruments to make risk assessments. ...

The applicant's submissions as to Ms Martinovic's relevant experience are an attempt to cavil with the merits. There is no suggestion that the Tribunal overlooked any of these matters. But the Tribunal plainly preferred the matters it referred to (limited contact with the applicant and exposure to the evidence, etc). Those matters provided a rational basis for its conclusion.

(Citations omitted.)

1. Ground 6 is that the Tribunal failed to consider a significant feature of the applicant's representations - namely, that she would be released into the community under conditions different to those under which the offending occurred.
2. But that is simply not so.
3. As the Tribunal said at [107]-[108]:

The Applicant invokes several protective factors including the interests of her children and employment in [a] café / bakery. In reply submissions dated 21 September 2023 she also refers to parole supervision until January 2025 and having an awareness "that any future offending would almost certainly ... [lead to her] ... returning to jail and deportation thereafter". Most protective factors invoked, however, are comparable to those of the past when the Applicant had stable accommodation and employment, was in a healthy financial situation, and responsible for four children. Her crimes also commenced when she was a relatively new arrival to Australia, and it is inconceivable she was unaware that committing crimes risked her visa status. Her offending persisted for over two years despite awareness that her conduct was criminal.

The Applicant's personal circumstances point to considerable pressures if released in Australia. This includes because Mr Niu has been deported and extensive assets from the criminal enterprise have been recovered by authorities. The nature of her offending likely precludes employment in financial institutions. Her desire to become a baker or pastry chef are aspirational and [the owner of the café / bakery] only offers a trial.

1. Self-evidently, the applicant's claims were considered and rejected - not ignored.
2. Gound 6 fails.

1. Ground 8 was that the Tribunal fell into error by failing to accept the applicant's assertions about the cultural, familial and gender contexts of the offending and the history of her own psychological trigger points.
2. As noted in paragraph 29 above, the Tribunal said the following at [117]-[118]:

In the absence of relevant expert evidence, the Tribunal does not accept the Applicant's uncorroborated claims about "cultural, familial and gender contexts'" or historical "psychological trigger points" to explain her offending. It is noteworthy these and other factors invoked at the current hearing have only been recently advanced. The Tribunal also does not accept the Applicant's claim during oral evidence that her offending would not have continued even if the criminal enterprise had not been detected. The persistence of her participation for over two years conflicts with this assertion.

Having regard for the persistence of the Applicant's past offending, the conditions under which it occurred, the revisionist nature of aspects of her evidence, and her unmet rehabilitation needs, she constitutes a real risk of reoffending that is more than minimal or negligible. This is so despite the protective factors invoked.

1. The applicant did not contest the proposition that the various claims referred to were uncorroborated. It seems to me that it was entirely rational for the Tribunal to decide that it would not accept uncorroborated claims about such matters. Contrary to the applicant's submission, such a decision does not demonstrate a failure to consider a claim or a constructive failure to exercise jurisdiction.
2. Further, as the Minister submitted at [63]-[64] of its written submissions:

It was not erroneous for the Tribunal to reject these claims without expert evidence. The submission made by the applicant was wholly unexplained. She submitted that the [Minister] overlooked "the cultural, familial and gender contexts of the offending, as well as the psychological trigger points of its timing (post-controversial abortion)". It was open to the Tribunal, as part of its fact-finding function, to not accept this (uncorroborated) evidence without some expert explanation.

The Tribunal considered the conditions under which the offending occurred, but was not willing to consider accept [sic] a lately advanced claim about matters without any explanation. For example, why was the Tribunal required to accept representations made about cultural context without any evidence as to what the relevant cultural context was? Similarly, why was the Tribunal required to accept an assertion about psychological trigger points, without any evidence from a psychologist or psychiatrist (or other suitably qualified person) as to what a psychological trigger point is, what the applicant's psychological trigger point was, and the role of this factor in the offending.

1. Ground 2 was that the manner in which the Tribunal conducted the questioning of Dr Martinovic would convey to a reasonable lay observer an apprehension of bias.
2. I have carefully read the whole of the transcript of Dr Martinovic's oral evidence before the Tribunal. The submission is wholly without merit.
3. As the Minister submitted at [24] of its written submissions, the Tribunal's hearing was in the context of an inquisitorial decision-making regime under the Act. It can thus be expected that the Tribunal:

(a) would not accept the applicant's evidence uncritically (see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 254 [134]-[135] (Kenny J);

(b) would test the evidence given by the applicant, even robustly, to determine the weight that should be given to it (see Minister for Immigration and Citizenship v MZXPA [2008] FCA 185; (2008) 100 ALD 312 at 315-316 [14] (Sundberg J); SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [4] (Allsop CJ), [24]-[33] (Flick J) and [87] (Robertson J));

(c) would confront the applicant or witnesses with matters that brought their account into question (see Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 435 [30] (Gleeson CJ, Gaudron and Gummow JJ)); and

(d) would ask questions about matters that are troubling the Tribunal and express doubt about the applicant's evidence (see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 at 269 [19] (Allsop J)).

1. Here, the learned Tribunal member went no further.
2. The case law also supports the proposition that there is a distinction in the decision-making standards that apply to judicial officers and those that apply to Tribunal members. As Gleeson CJ, Gaudron and Gummow JJ noted in Re Refugee Review Tribunal at 435 [30]:

Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented - often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.

1. Justice Allsop (as his Honour then was) reiterated the point in NADH at 269 [19], as follows:

[T]he place of a decision-maker such as the tribunal here should be recognised as different from a judge in open court. The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.

(Citations omitted.)

1. In the present case, the manner in which the Tribunal conducted the questioning of Dr Martinovic was appropriate and would not convey to a reasonable lay observer an apprehension of bias.
2. Ground 2 fails.

1. The gist of ground 3 was that the Tribunal fell into error by failing to give Dr Martinovic the opportunity to give evidence about the recidivism risk assessment undertaken by the parole board, despite the fact that she was prepared to do so.
2. The applicant submitted that when Dr Martinovic was asked about the actuarial instrument that the parole board used to assess the applicant, Dr Martinovic replied: "I can look that up now, exactly the one that they use and let you know in the next one minute", but "was not given the opportunity to do so". See transcript at page 30; applicant's written submissions at [48].
3. This ground is also without merit.
4. As Mr Barrington pithily put it in his oral address (see transcript at page 50):

It's not a breach of procedural fairness ... to decline an offer by a witness, in the course of oral evidence, using the internet to look up the answer to a question that they don't know ... That's not the point of oral evidence. Her role is to answer the questions, and if she doesn't know the answers, then that's a relevant matter which bears upon her level of knowledge or experience or expertise.

1. Ground 4 was that the Tribunal erred in finding that Dr Martinovic lacked impartiality.
2. But to quote Mr Barrington again (see transcript at page 52):

[I]t was just open to find - if the Tribunal did, indeed, find that she was [partial] or acting as an advocate [-] that those findings were open. Your Honour has seen the point in the evidence in which she says that the work that she undertakes is essentially advocacy work. But also when one reads her - Ms Martinovic's letters to the Tribunal, they're plainly written in ... a way that looks like advocacy[,] talking about outstanding, extraordinary participation, unflinching dedication, impeccable work ethic, incredible potential, et cetera.

1. Mr Barrington's characterisation of Dr Martinovic's letters is accurate, and there was nothing irrational or unreasonable in the Tribunal's finding that her evidence lacked impartiality.
2. Ground 4 fails.

1. Ground 7 was that the Tribunal failed to consider the fact that, upon release, the applicant would continue to receive rehabilitation treatment from Dr Martinovic.
2. But again, that is simply not so.
3. The Tribunal did not ignore what treatment the applicant would receive on release. It understood that the applicant participated in the Changing Faces Think Tank program but, consistently with Dr Martinovic's evidence, noted that the program was not offence-specific. As the Tribunal noted at [112] of its reasons: "[t]he Applicant did not adduce expert evidence about her recidivism risk, which would have been relevant. Most of the courses undertaken while imprisoned are vocational in nature and centre on employment prospects rather than offence-specific rehabilitation". As Dr Martinovic frankly acknowledged during cross-examination by Ms Roeger (see transcript at page 122):

You said the courses in prison weren't, "adequate," I think was the word you used. What do you mean by that?---Yes. There is no financial specific courses available full stop. The level of offence-specific counselling that Ms Mao - in your opinion, I would imagine - requires, was not available or provided to her. It just doesn't exist. Like I said, I've worked in the system for 20 years. I know that those programs are not offered. They do not exist. I'm working with a number of organisations now to make those available, because there is a clear need. There has been an increase of people who engage in white collar crime activities, fraud and deception in particular. And that is missing from the pool of programs that are offered for people who are in prison in Victoria currently.

1. Ground 5 contained a ragbag of submissions on the basis of which the applicant alleged that the Tribunal made findings which were against the weight of evidence, speculative, or otherwise irrational.
2. There is no merit in any of them.
3. First, it was submitted at [54] of the applicant's written submissions that the reasoning at [108] of the Tribunal decision was illogical.
4. As set out above, [108] was in these terms:

The Applicant's personal circumstances point to considerable pressures if released in Australia. This includes because Mr Niu has been deported and extensive assets from the criminal enterprise have been recovered by authorities. The nature of her offending likely precludes employment in financial institutions. Her desire to become a baker or pastry chef are aspirational and [the owner of the café / bakery] only offers a trial.

1. The Tribunal thus found that the applicant's current circumstances pointed to considerable pressures if released, including being in a poorer financial position and being unlikely to secure stable employment in either a financial institution or a bakery. The applicant contended that because she was a high-income earner in banking and finance at the time of the offending, that finding by the Tribunal was illogical.
2. But as the Minister submitted at [47] of the written submissions, "[i]t was not illogical for the Tribunal to point out, in the context of the applicant's submission that there existed several protective factors, that there were considerable pressures too, including that she did not have concrete employment upon release".
3. Secondly, it was submitted at [55] of the applicant's written submissions that there was irrationality in the matters identified by the Tribunal as relevant to its risk assessment - namely, the applicant's past offending, revisionist aspects of the applicant's evidence and the unmet rehabilitation needs of the applicant. But that again is simply not so.
4. Thirdly, the applicant also argued at [56] of her written submissions that the Tribunal erroneously considered her guilty plea to indicate that she had particular motives for offending, which left no room for a proper consideration of the contextual factors raised by the applicant and discussed above in Ground 8.
5. But a Tribunal cannot impugn, or rely on evidence contrary to, the essential sentencing facts. See discussion in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 at 135-139 [63]-[77] (McKerracher J) and 163-165 [179]-[189] (Colvin J).
6. In the present matter, the sentencing judge found that the applicant's criminality and moral culpability were "significant". See DPP v Mao & Niu [2022] VCC 526 at [47] (Judge Doyle). The Court of Appeal of the Supreme Court of Victoria, in dismissing an application for leave to appeal, noted that "the motivation of the offending was to obtain substantial wealth". See Mao v The King [2022] VSCA 211 at [51] (Beach and Forrest JJA).
7. The applicant's efforts to put an entirely different gloss on the offending sought to undermine these essential facts and were thus rightly rejected.
8. Fourthly, the applicant submitted at [57] that the Tribunal failed to address the fact that her submissions about her motivations and the contextual factors surrounding her offending were advanced at a later stage only because they were made in response to [51] of the delegate's reasons for the non-revocation decision, which stated as follows:

... I have considered Ms MAO has failed to divulge in her representations how she has addressed the factors which drove her offending. And while Ms MAO is under no obligation to provide the Department with this information, I find it highly concerning that she omitted to detail how or if she has addressed the drivers of her offending. ...

1. But nothing in the Tribunal decision suggests a failure to take such matters into account. As Mr Barrington submitted at [54] of the Minister's written submissions:

... The delegate found it highly concerning that the applicant had omitted to deal with or address the drivers of her offending. The applicant, in response, made a claim about her motivations. The Tribunal, in substance, rejected that argument, by noting that her changing evidence about motivation reflected blame-shifting and that she had not undertaken offence-specific rehabilitation. That was not irrational.

1. The Tribunal was entitled to place whatever weight it considered appropriate on the applicant's new claims about her motivations and the other contextual factors of the offending. The Tribunal addressed this issue directly at [94] and [109]:

The Applicant claimed in oral evidence she had not previously disclosed all the contextual circumstances relevant to her offending, despite being represented by senior counsel in her criminal proceeding, another barrister on appeal, and a solicitor in the present matter until late August 2023. The Tribunal places little weight on the new narrative advanced because a plea of guilty constitutes admission to and acceptance of all elements of the charges a person is convicted of. This includes that she knew the representations made to obtain financial advantage were false or probably false, and she intended these to be acted upon. ...

...

The Tribunal rejects the Applicant's re-casting of her involvement in the criminal enterprise and prefers the Court findings. She was legally represented by counsel in her criminal matter, appeal, and by a solicitor in this proceeding until quite recently. Only now, years after her offending, does she raise a defence bordering on coercion despite pleading guilty. It is impermissible for the Tribunal to impugn convictions on their essential factual basis. Aspects of the Applicant's evidence came across as blame-shifting and diminish the persuasiveness of her claims about insight, acceptance of responsibility, and rehabilitation.

1. Fifthly, Mr Dour submitted at [58] of the applicant's written submissions that the Tribunal adopted a speculative mode of reasoning when considering the applicant's level of "insight" into the wrongfulness of her conduct.
2. This submission is inconsistent with the fact that the Tribunal heard from the applicant, considered evidence in the form of sentencing remarks and gave cogent reasons for finding that her revisionist account "diminish[ed] the persuasiveness of her claims about insight". See Tribunal decision at [109].
3. The Tribunal also noted the following about the applicant's insight into her offending (at [110]):

[T]he Applicant's contrition is routinely focussed on how her crimes have impacted herself and her family. There are passing references to the impact on her past employer and Australia's banking system, albeit accompanied by claims such as: "I have excellent work ethics". The Applicant also seeks to portray the property development projects funded through fraudulently obtained bank loans as a positive community contribution weighing in favour of revocation:

"We have contributed to our community since we moved from New Zealand in 2013 and that has been through the creation and maintenance of new and existing housing for members of the community and their families. This subsequently resulted in the creation of jobs within the community to engage these tasks.

We have paid our expected contribution of taxation each year which is well above the average Australian household."

1. There was nothing speculative in the Tribunal's mode of reasoning and it was entitled to conclude as it did in relation to the applicant's level of insight into her offending.
2. Sixthly, the applicant submitted at [59] of her written submissions that the Tribunal improperly relied on the applicant's past offending to conclude that there was a real risk of recidivism and then proceeded to affirm the delegate's non-revocation decision on the basis that there was a real risk of serious offending.
3. This submission is misconceived. It is appropriate for a conclusion about recidivism risk to take into account the nature and frequency of past offending. This is not to say that past offending is the only consideration when assessing risk, but it is without question one of the relevant considerations.
4. As the Minister submitted at [56], there is no indication that the Tribunal's conclusion as to recidivism risk was based solely on the bare historical fact of the applicant's conviction. The other factors explicitly considered by the Tribunal (including the considerable pressures the applicant would face if released in Australia, her level of insight into the wrongfulness of her conduct and her unmet rehabilitation needs) are therefore fatal to the applicant's submission.
5. The submissions made in purported support of ground 5 are untenable.
6. Ground 5 fails.

1. Each of the grounds of appeal submitted by the applicant fails.
2. The application must be dismissed with costs.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.