Ground 1: Irrationality or legal unreasonableness
48 It is settled that a discretionary power such as that conferred by s 501(1) of the Migration Act is subject to an implied condition requiring the power to be exercised reasonably: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88]-[94] (Gageler J); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [4] (Kiefel CJ), [53] (Gageler J), [89] (Nettle and Gordon JJ), [131] (Edelman J).
49 The threshold to establish legal unreasonableness amounting to jurisdictional error is high, and involves more than mere (or even "emphatic") disagreement with the manner or outcome of the exercise of the power: Li at [30] (French CJ), [108]-[109], [113] (Gageler J); SZVFW at [11] (Kiefel CJ), [135] (Edelman J). The Court's supervisory role on judicial review is concerned with whether the power has been lawfully exercised, rather than directly with the factual merits of the particular case: see e.g. Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [17] (Allsop CJ, Besanko and O'Callaghan JJ). As Gageler J noted in Li at [105] (quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47]), legal unreasonableness is "concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process", and whether the decision "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law". Whether or not a decision or an exercise of statutory power is legally unreasonable therefore involves the application of a legal standard, and is a question that admits of only one correct answer: see SZVFW at [18] (Kiefel CJ), [60] (Gageler J), [76], [85]-[87] (Nettle and Gordon JJ), [154]-[155] (Edelman J); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [25] (Allsop CJ, with whom Griffiths and Wigney JJ agreed).
50 In cases where the outcome of the exercise of a statutory power, or a critical finding on which the decision was based, is alleged to be legally unreasonable, it may be necessary to ask whether or not the decision-maker's conclusion was open on the evidence and other material that was available to the decision-maker: see e.g. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [135] (Crennan and Bell JJ), observing that "[w]hilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker".
51 Nevertheless, there may also be scope to challenge a decision where the reasoning process by which a conclusion was reached by the decision-maker is patently irrational or illogical, so as to be incapable of supporting that conclusion and therefore beyond the bounds of legal reasonableness, with the result that the decision is outside the limits of the relevant statutory power. In such circumstances, the legal reasonableness of the decision can be assessed by reference to the reasons given by the decision-maker, irrespective of whether or not the conclusion or outcome might have been reasonable if it were reached on a different basis or under different circumstances: see e.g. ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [127] (Edelman J), referring to Canada (Minister of Citizenship and Immigration) v Vavilov (2019) 441 DLR (4th) 1 at 70-71 [95]-[96], where the Supreme Court of Canada stated that "it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome". Far from drawing the courts into the field of impermissible merits review, such an approach avoids the need for any judicial reconstruction of the basis for the administrative decision by reference to the underlying facts and the materials that were before the decision-maker.
52 In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47], the Court (Allsop CJ, Robertson and Mortimer JJ) referred to "the distinction made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power". The Court stated that "where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was", and whether there was an intelligible justification for the decision (at least in relation to the exercise of a discretionary power). Thus, the Court observed (at [45]):
Where there are reasons, and especially where a discretion is being reviewed, the Court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.
53 One consequence is that a decision will rarely be seen to be legally unreasonable in circumstances where the reasons given by the decision-maker demonstrate an intelligible justification for the way in which the power was exercised: Singh at [47]. In such cases, consistently with the limitations of the court's supervisory role on judicial review, there is no occasion for the court to go outside the reasons given by the decision-maker in order to assess for itself whether the outcome of the exercise of power was justifiable or within the range of permissible outcomes. In other words, the intelligible justification for the decision will be evident from the reasons given by the decision-maker. Conversely, if the decision-maker's reasons reveal an absence of any intelligible justification for the decision, such as where a central finding or conclusion is irrational or illogical, the court on judicial review is not called upon to search for a justification by asking itself whether the decision was nevertheless open or within the permissible range of outcomes on the material before the decision-maker. As the Court stated in Singh at [47], "either the reasons given by the decision-maker demonstrate a justification or they do not".
54 The application of these principles is "invariably fact dependent" (SZVFW at [84] (Nettle and Gordon JJ); see also Singh at [48]), and "requires a close focus upon the particular circumstances of exercise of the statutory power" (Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ)). Further, as Allsop CJ noted in Stretton at [13], in the context of a challenge to the Minister's conclusion on the respondent's risk of reoffending and the protection of the Australian community for the purposes of a decision to cancel the respondent's visa under s 501(2) of the Migration Act:
The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
55 Nevertheless, the usual constraints on judicial review must be kept in mind, including that there is no error of law simply in making a wrong finding of fact (Waterford v Commonwealth (1987) 163 CLR 54 at 77 (Brennan J)), and that the reasons of an administrative decision-maker should be read fairly and not with "an eye keenly attuned to the perception of error", nor "seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ), referring to Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287 (Neaves, French and Cooper JJ) and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 (Spender, Foster and O'Loughlin JJ)).
56 In the present case, the applicant submitted that the Tribunal's finding (at T [64]) that the risk of the visa applicant reoffending was "low" but "not negligible" lacked a rational foundation or probative basis, in that it was based in "large part" on the visa applicant's state of mind when he committed the second offence in December 2011 - namely, his "willingness to sexually assault a stranger in his taxicab, while he was facing charges in relation to an earlier assault; and where he admitted, frankly, to the Tribunal, part of the impetus for his offending was that he thought she would not remember what had taken place or, if she did make a complaint, she would not be believed". The applicant submitted that the visa applicant's state of mind in December 2011 was not probative of his risk of reoffending more than 10 years later, and moreover did not affect Mr Simmons' assessment of the level of that risk. Accordingly, notwithstanding any aggravating circumstances in relation to the offences committed by the visa applicant, the applicant had contended before the Tribunal that any risk that the visa applicant might reoffend was "very low" in the light of his subsequent rehabilitation and development in maturity.
57 To place the Tribunal's finding in context, it is useful to summarise relevant aspects of the evidence and the parties' contentions.
58 In her statement of facts, issues and contentions (Applicant's SOFIC), the applicant accepted that the primary considerations of protection of the Australian community and the expectations of the Australian community under paras 8.1 and 8.4 of Direction 90 weighed against the grant of a partner visa to the visa applicant: Applicant's SOFIC at [7]. However, the applicant contended that those considerations should be given "limited weight", in the light of the visa applicant's demonstrated rehabilitation and the significant change in his circumstances since he was sentenced: Applicant's SOFIC at [27]-[29]. In particular, the applicant submitted that the weight to be given to those primary considerations turned on the risk of the visa applicant reoffending, and contended either that the visa applicant "will not reoffend, or that the risk is very low", relying on the Simmons report: Applicant's SOFIC at [28], [29]. In such circumstances, the applicant contended that the risk of offending was "sufficiently reduced" that the protection of the Australian community and the expectations of the Australian community were outweighed by other considerations, including the best interests of the applicant's daughter, the visa applicant's ties to Australia, and the difficulties that the visa applicant would face being separated from his family in India: Applicant's SOFIC at [8].
59 The Minister's statement of facts, issues and contentions (Minister's SOFIC) relied on protection of the Australian community and the expectations of the Australian community as weighing "strongly" in favour of refusal, and outweighing any other considerations against refusal. The Minister emphasised the serious nature of the harm caused by the visa applicant's offending, and submitted that there was an ongoing risk that the visa applicant would reoffend and that the Tribunal "should place limited weight on the Applicant's submissions in relation to [the visa applicant's] likelihood of reoffending": Minister's SOFIC at [36]-[37].
60 As mentioned above, the Simmons report addressed the visa applicant's risk of reoffending by reference to the Static-99R assessment that had been conducted by Mr Cummins in February 2013 for sentencing purposes. While acknowledging that this tool was "now falling into disrepute" due to its "variable reliability", Mr Cummins stated that the visa applicant had obtained a score of three, which placed him "at the lower end of the moderate risk category". Mr Cummins had gone on to consider the "Risk for Sexual Violence Protocol", which he said was the "currently preferred method of risk assessment for sexual offending", and stated that he had assessed the visa applicant "as currently being in the low moderate range in terms of the risk of further sexual offending".
61 In the Simmons report, Mr Simmons emphasised the period of time since the visa applicant was released from custody. He noted that, as at the time of his release, his Static-99R score placed him in the "average" risk category relative to other adult male sex offenders, stating that individuals with such characteristics "on average, sexually reoffend at 7.9% over five years after release from custody". However, Mr Simmons stated that this risk reduces over "time spent in the community offence free":
As a general guide, the risk of further offending halves every five years. That is, after five years, it is 50% of the original score and at 10 years, is 25% of the original score. Eventually, at approximately 17 to 18 years of being offence free, the risk of re-offending is the same as that for which first-time offenders commit offences.
Taking this into account, Mr Simmons concluded that "of the group that [the visa applicant] is a part of, his probability [of reoffending] would now be lower than 4%", presumably on the basis that his risk assessment under Static-99R would have halved over the period since his release from custody. Further, having regard to the absence of any dynamic risk factors that would increase the likelihood of the visa applicant reoffending, Mr Simmons opined that the "lower than 4%" probability may be "overestimated".
62 Mr Simmons maintained this opinion in the supplementary Simmons report, having taken into account the visa applicant's past sexual relationship with a woman from New Zealand prior to the commission of the offences. Mr Simmons stated that, as that relationship had occurred before the visa applicant's offending, it did not change any of the factors that were part of the Static-99R assessment, and that a past consensual relationship had little bearing in terms of the risk of future sexual offending.
63 At the Tribunal hearing, each of the applicant and the visa applicant gave evidence about the latter's development in maturity and insight into his offending since his release from custody. Mr Simmons gave oral evidence in which he confirmed his opinion that the visa applicant's risk of offending was "quite low", given that it "was not … particularly high at the time of the initial assessment, as evidenced by Mr Cummins report", and had "decreased further over the years that he's been in the community". Mr Simmons was cross-examined by the Minister's legal representative about the relevance of the visa applicant's state of mind at the time he committed the second offence in December 2011 to his opinion about the likelihood that the visa applicant would reoffend:
MR DULDIG: So do you recall him indicating to you that one of the reasons why he committed that offence was because he didn't think there would be any consequences for it? --- I can't honestly say I do, I'm sorry.
No, that's okay. I mean, would that impact on your assessment of his insight into his offending if it was the case that it was this kind of opportunistic offence? --- Not in terms of risk of reoffending. It would certainly be a factor that you would then use for targeted treatment programs. The - certainly, if that's his view at the time, that was his belief at the time, it's not necessarily his belief now and unfortunately, I don't have access to the Corrections Victoria reports on his involvement in the program so I don't really know where that goes or how that was addressed.
Thank you. And finally, does the fact that the applicant committed the first offence and was then arrested for it and then committed the second offence having already been arrested and charged with the first offence, does that have any bearing on your assessment of the risk that he will reoffend? --- Not in the long term. Certainly it had an explanation of why this - what you were saying before may have an explanation as to why the second offence occurs but the actuarial - the process looks at what has happened subsequent and at the time there may have been differing views about his prospects for rehabilitation but we're now seven and a half years down the track and we've actually sort of seen which of those assessments of his prospects for rehabilitation appears to be the right one.
(Emphasis added.)
64 In response to questions from the Tribunal, Mr Simmons confirmed that the predatory and opportunistic nature of the visa applicant's behaviour did not change his assessment of the risk of reoffending, stating that "although it's predatory we look at behaviour that is planned as being more significant than behaviour that's impulsive" or that involves "a failure of the mechanisms of impulse control". Mr Simmons also agreed with the Tribunal's summation of his evidence as -
essentially saying … you'd be in a different position if you were in Mr Cummins' role but your role is a different one and looking back, you feel as if you're in a position to be able to say, well look, the circumstance of his life now explain adequately why the risk is what it is and as you say, indicate of the number of pathways that might have been open at the time of sentencing if you like, clearly this is the one that was likely to have the best impact or has had in your view - not demonstrable but gives you a confidence level …
65 It may be noted in passing that the Tribunal was reconstituted after the second day of hearing, however directions were made permitting the newly constituted Tribunal to have regard to the transcript of the first two days of hearing, together with the evidence previously admitted in the proceeding.
66 It was against that background that the Tribunal came to address the question of the visa applicant's risk of reoffending, in the context of the risk to the Australian community should the visa applicant commit further offences or engage in other serious conduct (see para 8.1.2 of Direction 90). Together with the nature and seriousness of the visa applicant's conduct to date (para 8.1.1), this was one of two matters going to the primary consideration of protection of the Australian community: Direction 90, para 8.1(2). For such purposes, the risk to the Australian community was to be assessed by having regard "cumulatively" to the nature of the harm should the visa applicant engage in further criminal or other serious conduct, and the "likelihood" of the visa applicant engaging in such conduct: para 8.1.2(2). The assessment of that likelihood required consideration of any "information and evidence on the risk of the non-citizen reoffending" and any "evidence of rehabilitation achieved by the time of the decision", giving weight to time spent in the community since the most recent offence: para 8.1.2(2)(b).
67 In support of her submission that the Tribunal's finding on the visa applicant's risk of reoffending was irrational and unreasonable, the applicant relied on the decision in CKL21 v Minister for Home Affairs (2022) 293 FCR 634. In that case, the Minister had personally decided under s 501CA(4) of the Migration Act not to revoke the mandatory cancellation of the appellant's visa under s 501(3A) of that Act. The Full Court (Moshinsky, O'Bryan and Cheeseman JJ) concluded that the Minister had erred "by making irrational findings of fact, or making findings that were legally unreasonable, about the appellant's future risk of reoffending": CKL21 at [4(b)], [5]. The Minister had made a finding that there was an ongoing risk that the appellant would reoffend, and that the possibility of further offending could not be "ruled out", observing that, while the appellant had "made progress at rehabilitation", his conduct had not been tested in the general community, and that the Minister "remain[ed] guarded" about the risk of him relapsing into substance abuse if released into the community: CKL21 at [41]-[42]. The appellant argued that these findings were contrary to uncontradicted expert evidence that the appellant presented a minimal risk of reoffending and was not an unacceptable risk to the community: CKL21 at [50].
68 The Full Court recognised in CKL21 at [65] that factual findings and associated reasoning in an administrative decision may be subject to review for jurisdictional error if "true irrationality" is shown. Although the Minister or the Tribunal is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm is sufficiently serious, this does not mean that findings with respect to the risk of an applicant reoffending are beyond judicial review, including on the ground that they are without any logical or probative basis: CKL21 at [68], and the cases cited therein. The Court noted that a finding that there is a risk that a non-citizen might reoffend ought to be understood as a finding that the non-citizen "posed a risk of reoffending that was greater, in a more than immaterial way, than the risk of the ordinary person residing in Australia committing the offence" in question - otherwise, there would be no rational basis on which to make a finding that such a risk was unacceptable: CKL21 at [71]. Further, the need for a probative basis for a finding of a risk of reoffending is heightened in circumstances "where there is a wealth of evidence supporting a contrary finding": CKL21 at [72]. Referring to the High Court's decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575, the Court described the task of a decision-maker in assessing the risk of future events as follows (at [74]):
In curial and administrative decision-making, the task of assessing the degree of likelihood of an event occurring in the future requires more than mere speculation. It must be based on a logical process of reasoning based on the known facts. A conclusion that a risk "cannot be ruled out" does not, of itself, logically establish the existence of a risk. Further, as the above passage of the plurality in Guo indicates, a risk may be so low that it must properly be disregarded. In assessing the likelihood of a future event, the key facts will include the regularity with which the event has occurred in the past, the conditions under which the event occurred in the past and the likelihood that those conditions have since changed or other events have intervened to interrupt the cycle of regularity.
69 On the particular facts in CKL21, the Court held that there was no probative basis for the Minister's finding that there was an ongoing risk that the appellant would reoffend. There was a wide range of facts and circumstances that suggested that the risk of the appellant reoffending was "highly unlikely, if not non-existent": CKL21 at [82]. The Minister's reasons referred to only two matters that could possibly be relied on to support his finding that there was a risk of the appellant reoffending - first, that the appellant had committed the past offence while he was on bail for other offences, which had been viewed by the sentencing judge as indicating a disregard for the law and undermining confidence in his rehabilitation (at the time of his sentencing); and second, that the Minister was "guarded" about the prospect of the appellant relapsing into substance abuse: CKL21 at [83]-[85]. However, the Court did not regard either of these matters as providing a probative basis for the finding that, as at the time of the Minister's decision, there was an ongoing risk that the appellant would reoffend. The reasons did not connect the sentencing judge's remarks to the Minister's assessment of the appellant's risk of reoffending, and did not consider the ongoing relevance of those remarks "in light of the passage of time": CKL21 at [84]. And the Minister's reasons did not provide any basis for a finding that the appellant was at risk of relapsing into drug or alcohol abuse which might provide a foundation for a finding that he was a risk of reoffending: CKL21 at [85]. In such circumstances, the Minister's conclusion that there was an ongoing risk that the appellant would reoffend was described by the Court as "speculative, based on mere conjecture or supposition unsupported by evidence", and as lacking an evident and intelligible basis: CKL21 at [86].
70 In the present case, the applicant submitted that the reasoning by which the Tribunal reached its conclusion that the risk of reoffending was "not negligible" was irrational or unreasonable, in that it was based on the nature of the second offence committed by the visa applicant and his state of mind at the time that he committed that offence, without any connection to the visa applicant's present state of mind or his current attitudes towards sexual offending. The applicant submitted that the Tribunal did not make any finding that the visa applicant presently believed that he could commit a sexual offence if it were without consequence, nor that he suffered from any sexual deviancy or that his impulse control was such that he might succumb to such thinking in the future. On the contrary, the visa applicant had not reoffended since 2011, and there was evidence that he had since matured and developed insight into the consequences of his conduct and the impact on the victims.
71 The Minister submitted that the Tribunal's findings in relation to risk to the Australian community must be read as a whole, together with its findings about the nature and seriousness of the visa applicant's criminal offending. The Minister submitted that the conclusion that the risk of reoffending was "not negligible" was consistent with the evidence of Mr Simmons, and that the Tribunal had not limited its assessment to the visa applicant's state of mind at the time of offending without any reference to current circumstances. In particular, the Minster argued that the visa applicant's evidence about his present understanding of and insight into his offending did not wholly assuage the Tribunal's concerns surrounding his motives for committing the second sexual assault, and the Tribunal rejected the visa applicant's claims that his offending was explained by a lack of cultural awareness or his inexperience with women. Those concerns were based on recent circumstances, including the visa applicant's statements to the Department made in 2021, and his lack of candour when interviewed by Mr Simmons in 2021 about the history of his personal and sexual relationships.
72 The Minister submitted that the decision in CKL21 was distinguishable from the facts of the present case, in which the Tribunal's findings about the risk of the visa applicant reoffending were based on the evidence and were not "mere speculation". In the Minister's submission, the decision in CKL21, "broadly speaking, stands for the proposition that it is a logical fallacy to conclude that a fact has been proved because it has not been disproved". In the present case, the Minister submitted that the applicant "has not pointed to any evidence which suggests that the only conclusion open on the known material was that the risk of re-offending was an acceptable one".
73 The latter submission made by the Minister mischaracterises the basis on which the applicant challenges the Tribunal's conclusion. The present case is not one in which it is argued that only one conclusion was rationally open on the material before the Tribunal, for example that there was no risk, or only a negligible risk, that the visa applicant would reoffend in the future. The expert opinion of Mr Simmons was that the risk was "low" or "quite low", which was expressed as being less than (and perhaps significantly less than) 4%. But it is not necessarily inconsistent with that evidence to characterise such a risk as "not negligible". It was implicit in Mr Simmons' evidence that the risk of the visa applicant reoffending remained higher than an ordinary member of the general community, bearing in mind his explanation that it would take "approximately 17 to 18 years of being offence free" before the risk was reduced to "the same as that for which first-time offenders commit offences".
74 However, the applicant's contention is not that the conclusion reached by the Tribunal on the visa applicant's risk of reoffending was not open or was one that no reasonable decision-maker could reach, but rather that such a conclusion lacked a logical and probative basis. The Tribunal ostensibly accepted the professional opinion of Mr Simmons, including his opinion that the visa applicant was a "low risk" of reoffending having regard to his current circumstances. But the Tribunal qualified that finding with its conclusion that such a risk was "not negligible", and did so in "large part" by reference to the circumstances of the second sexual assault committed by the visa applicant and his admissions concerning the "impetus" for committing that offence. The fact that this was treated by the Tribunal as a qualification on its acceptance of Mr Simmons' opinion is indicated by the use of the word "[h]owever" before expressing its conclusion that the risk was not negligible.
75 Notwithstanding that such a conclusion did not involve a rejection of Mr Simmons' evidence, it nevertheless involved a rejection of the applicant's contention that the Tribunal should find that the visa applicant's risk of reoffending was "very low" or that he would not reoffend, which in substance was a submission that any risk of reoffending ought to be regarded as negligible. That submission relied on the evidence given by the applicant and the visa applicant respectively, together with the expert evidence of Mr Simmons. In relation to the latter, the applicant had argued in closing submissions that "forensic psychologists can go no further than low professionally" and that they were unable to "provide a guarantee". Accordingly, the applicant pressed the submission that there was "good reason to be confident that [the visa applicant] is in the category of a person that won't reoffend". The Tribunal's finding that the risk was "not negligible" was essentially its rejection of that contention.
76 Accordingly, the question is whether the Tribunal provided a logical or probative basis for its conclusion that the risk that the visa applicant would reoffend was "not negligible". The basis that was expressed by the Tribunal for that conclusion had two elements, each of which was related to the visa applicant's state of mind when he committed the second sexual assault in December 2011:
(a) first, that he was willing to commit such an offence while facing charges in relation to the earlier assault; and
(b) second, that the "impetus" for committing that offence was the belief that, because of the victim's state of intoxication, either she would not remember what had taken place, or any complaint made by her would not be believed.
77 It may be accepted that each of those matters was relevant to the nature and seriousness of the visa applicant's criminal offending. In his evidence to the Tribunal, the visa applicant had conceded that those matters were aggravating factors in relation to the seriousness of the second offence. However, it is difficult to see how either of those matters were themselves relevant to or probative of the risk that the visa applicant might reoffend in the future. Moreover, the only contemporaneous expert evidence before the Tribunal about the effect of such matters on the assessment of the risk of reoffending was that the visa applicant's reasons for committing the second offence in December 2011 had no bearing on his risk of reoffending.
78 In such circumstances, it was neither rational nor probative for the Tribunal to rely on the visa applicant's reasons or motivations in committing the second sexual assault in December 2011 as supporting a conclusion about the level of risk of the visa applicant reoffending as at the time of the Tribunal's decision, having regard to the evidence that was before the Tribunal in relation to the visa applicant's rehabilitation since that offence was committed and since he was released from custody.
79 Thus, while it was open to the Tribunal to have regard to the visa applicant's state of mind at the time of the second offence when it considered the nature and seriousness of the visa applicant's criminal conduct (see T [41]), and when exercising the discretion whether to refuse to grant a partner visa to the visa applicant (see T [115]), it was illogical and irrational to regard that as a "large part" of the basis for its finding about the visa applicant's risk of reoffending (that is, the likelihood of him engaging in further criminal or other serious conduct) for the purposes of para 8.1.2(2)(b) of Direction 90. The Tribunal's decision was therefore affected by legal unreasonableness.
80 The Minister conceded that, if the Tribunal's conclusion at T [64] were found to be legally unreasonable, illogical or irrational, that error would be material to the Tribunal's decision. That concession was properly made. If the Tribunal had not erred by treating the visa applicant's past state of mind as the basis for its conclusion about his risk of reoffending, there is a realistic possibility that the Tribunal's decision might have been different, in that the Tribunal might have accepted the applicant's contention that the visa applicant would not reoffend or that the risk of the visa applicant reoffending was so low as to be negligible. If there were no risk or only a negligible risk of reoffending, it is difficult to see how the primary consideration of protection of the Australian community could be given any significant weight in favour of refusing the visa.
81 In other words, irrespective of the nature of the harm that would be caused by further offending, in circumstances where there is no real likelihood of the non-citizen engaging in further criminal or other serious conduct, the risk to the Australian community for the purposes of para 8.1.2 of Direction 90 (that is, the "combination of likelihood and gravity" that was referred to as "overall risk" by Bromberg J in BMX15 v Minister for Immigration and Border Protection (2016) 244 FCR 153 at [29]) would be insignificant. It would be an abstract risk. While the protection of the Australian community also requires consideration of the nature and seriousness of the non-citizen's criminal offending or other conduct to date (see paras 8.1(2)(a) and 8.1.1 of Direction 90), the focus of this consideration remains protective rather than punitive: compare Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [37] (Flick, Griffiths and Perry JJ). Of course, the seriousness of past criminal conduct may itself remain relevant and be given weight in the context of other considerations, such as the expectations of the Australian community (para 8.4), and in the exercise of the discretion under s 501(1) whether to refuse to grant the visa.
82 In the present case, but for the Tribunal's conclusion that the risk of the visa applicant reoffending was "not negligible", there is at least a realistic possibility that the Tribunal would not have found that the primary consideration of protection of the Australian community weighed "very heavily" against exercising the discretion to grant a partner visa to the visa applicant. This in turn could have affected the evaluative exercise involved in the assessment of the relative weight to be attached to each of the primary considerations and the other relevant considerations under Direction 90: see generally LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 98 ALJR 610; TPTN v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 304 FCR 244 at [55]-[63] (Collier ACJ, Meagher and Horan JJ). Accordingly, the Tribunal's decision was affected by jurisdictional error.