Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143

1. As I have mentioned, the cancellation decision was mandated under s 501(3A) of the Act. The power to revoke that decision is conferred under s 501CA. Under s 501CA(3), a person whose visa has been cancelled must be invited to make representations to the Minister about revocation of the original decision. If the person makes representations in accordance with that invitation, and the Minister is satisfied that the person passes the character test or that there is "another reason why the original decision should be revoked", then the Minister may revoke the cancellation decision. A decision not to exercise the power conferred by s 501CA(4) may be reviewed by the Tribunal.
2. In the exercise of the power conferred under s 501CA(4), the Minister's delegate (and, on review, the Tribunal) was required to comply with a direction titled "Direction no. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA" issued by the Minister under s 499 of the Act (Direction 99).
3. It is well established that a failure to comply with a direction issued under s 499 of the Act may constitute jurisdictional error: Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, French CJ, Kiefel, Bell and Keane JJ (at [61] - [68]).
4. In Plaintiff M1/ 2021 v Minister for Home Affairs (2022) 275 CLR 582, Kiefel CJ, Keane, Gordon and Steward JJ said (at [22]) that in determining whether or not they are satisfied that there is "another reason" for revoking a cancellation decision, the decision-maker undertakes an assessment by reference to the case that is made by the former visa holder in their representations. Their Honours said that it was improbable that Parliament could have intended that the broad discretionary revocation power should be restricted or confined by characterising every statement within those representations as a mandatory relevant consideration in the sense explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398.
5. As to how the representations were to be considered, their Honours said:
   1. 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.
   2. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

1. Their Honours went on to emphasise the limited role of a court reviewing the exercise of an administrative decision, which does not involve a substitution of the Court's own decision for that of the administrative decision-maker (at [26]). Their Honours observed that nothing in their analysis should be understood to detract from established principle: the reasons of the decision-maker may disclose jurisdictional error if they reveal that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument, or misunderstood the applicable law, or misunderstood the case being made by the former visa holder.
2. In addition to the requirement that the Tribunal comply with Direction 99, it is well established that the power conferred under s 501CA(4) is conditioned by a requirement that the decision-maker act within the bounds of legal reasonableness. That incorporates a requirement that the decision be unaffected by illogicality or irrationality.
3. In order for an error in administrative decision making to be characterised as jurisdictional, it is necessary that the error be "material" in the sense that there was a realistic possibility that a different decision could have been reached had the error not been made: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (at [31]).

1. Paragraph 8.1.2 of Direction 99 required the Tribunal to consider the strength, nature and duration of the applicant's ties to Australia. When considering that subject matter, the Tribunal was required to give "considerable weight" to "the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years" regardless of when their offending occurred and the level of that offending: Direction 99, [8.3(4)(a)(i)].
2. By his first ground of review, the applicant alleges that the Tribunal misunderstood that requirement, or alternatively "failed to take into account or consider that considerable weight should be given to the fact that he had been ordinarily resident in Australia during his formative years."
3. By the second ground of review, the applicant alleges that he relied on the legal consequences of the non-revocation of the cancellation decision as "another reason" in support of revocation in his representations to the Tribunal. He alleges that he relied on the fact that he would be precluded from re-entering Australia where his son resides, and restricted from applying for another visa. The Tribunal said that those consequences were "the intended consequence of the operation of s 501" of the Act and hence attributed "neutral weight" to them. The applicant contends that the Tribunal erred in identifying that legislative intent. He contends that nothing in Direction 99 authorised or required the Tribunal to give neutral weight to a legal consequence of its decision simply because it was a consequence intended by Parliament. Alternatively, he argues that by reasoning in that way the Tribunal misinterpreted or misapplied Direction 99 or, alternatively, that it failed to have regard to the legal consequence of the decision logically, rationally and reasonably.
4. Paragraph 8.1.2 of Direction 99 required the Tribunal to consider (among other things) "the likelihood of the non-citizen engaging in further criminal or other serious conduct". In his representations on that topic the applicant asserted that his risk of recidivism had been significantly reduced, including because of his extensive rehabilitative efforts. The Tribunal concluded that the applicant's risk of reoffending remained in the "moderate range", including because his "rehabilitation is untested in the community". That conclusion contributed to the Tribunal's view that the applicant's likelihood of reoffending weighed "very strongly against revocation".
5. By his third ground of review, the applicant alleges that it was "irrational, illogical or unreasonable to find and/or to give weight to a finding that the Applicant's 'rehabilitation is untested in the community' despite the impossibility of that occurring as the Applicant had been in prison."
6. Each of the alleged errors is said to be material.

1. It is convenient to turn first to the second ground of review.

1. By [6] of Direction 99, the Tribunal was required to take into account the "primary considerations" in [8] and the "other considerations" in [9]. Paragraph 7 provided that primary considerations should generally be given greater weight than other considerations.
2. The primary considerations included the non-citizen's strength, nature and duration of ties to Australia ([8.3]) and the best interests of minor children affected by the decision ([8.4]).
3. Paragraph 9 relevantly provided:

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests

9.1 Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

1. The requirement to consider the extent of a non-citizen's impediments if removed included a requirement to take into account the non-citizen's age and health, any substantial language or cultural barriers and any social, medical or economic support that may be available (or lack thereof): Direction 99, [9.2].
2. The applicant made representations to the effect that he identified as an Australian and that if his visa was not restored his inability to return to Australia would have significant human consequences, including that he would be separated from his son, other family members and a close friend. He said he would be "devastated" as a result. Before the Tribunal he elaborated on those representations as follows:
   1. ... If I was to be removed from Australia, I wouldn't be able to hug [my son], kiss him or give him a high-five. ...
   2. It is clear that if I am removed from Australia he wouldn't be coming with me. As his father I clearly want my son to be with me no matter where that may be. That would not be an option though as his mother will reside here in Australia ...
3. The Tribunal's consideration of the matters raised in [9.1] of Direction 99 appears in the Reasons under heading "Legal consequences of decision under section 501 or 501CA". The Tribunal there identified the "consequences of a visa refusal or cancellation under s 501 or related provisions", which it summarised as:

• Ÿ Unlawful status;
• Ÿ The likelihood of becoming subject to detention and/or removal;
• Ÿ Refusal of other visa applications and cancellation of other visas;
• Ÿ A prohibition on applying for other visas; and
• Ÿ Periods of exclusion and special return criteria may apply.

1. The Tribunal elaborated on those consequences, before observing that no "protection finding" had been made in respect of the applicant and that there was no information to suggest that he would be detained for a prolonged period. The Tribunal continued:
   1. No concerns other than those relating to the Applicant's removal and potentially permanent separation from family and friends and the challenges of resettlement in New Zealand were raised by the Applicant. Nor did he make any submissions that the legal consequences of the decision should weigh in favour of revocation.

1. The Respondent submitted the legal consequences of removal and exclusion are the intended consequence of the operation of s 501 cancellation and that the consideration should carry neutral weight.
2. The Tribunal accepts the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501. The Tribunal considers this consideration carries neutral weight in the Applicant's case.

1. Elsewhere in its Reasons, in considering the extent of impediments that may be faced by the applicant if he were to be removed from Australia, the Tribunal extracted and considered the submissions the applicant had made on that topic, including the following:

I would have to start life again, in a country where I have not lived as an adult. I moved to Australia as a seventeen year old, over twenty-five years ago and have lived my whole adult life in Australia. My son was born here in Australia and if I am removed, my ability to guide [Mstr S] as a present and loving father will not exist. He is my world and he is here in Australia. I will lose the connection with my family and friends that are my support network, if I am to be removed from Australia. Please allow this consideration weigh heavy on my revocation decision.

1. The Tribunal went on to accept that the applicant was likely to face significant emotional hardship by reason of him being separated from his family members and friends, most notably his son and brother.
2. Earlier in its Reasons, the Tribunal had already considered at some length the impact the removal of the applicant would have on a number of minor children, including his son. It concluded that revocation of the cancellation decision was in the best interests of the applicant's son, and it afforded that consideration moderate weight. The Tribunal also evaluated the strength, nature and duration of the applicant's ties to Australia, concluding that they weighed in favour of revocation.
3. In support of this ground of review, the applicant contended that the Tribunal had erroneously recorded that he had made no submission that the legal consequences of the decision should weigh in favour of revocation. That argument should be rejected because it does not accurately summarise the Tribunal's reasoning. The Tribunal proceeded on the basis that the applicant had not raised concerns about the legal consequences of the decision other than those relating to his removal and potentially permanent separation from family and friends and the challenges of his re-settlement in New Zealand. That statement has not been shown to be incorrect.

1. The applicant further contended that by concluding that the consideration in [9.1] of Direction 99 should be attributed "neutral weight", the Tribunal committed jurisdictional error of the kind identified by Rangiah J in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1273. In that case a review applicant had sought protection and invoked Australia's non-refoulement obligations. He contended that a legal consequence of a non-revocation decision would be his prolonged and potentially indefinite detention. The Tribunal did not resolve the substantive claims for protection but instead concluded that their consideration should be deferred to the time when the review applicant applied for a protection visa. In considering the legal consequences of its decision, the Tribunal referred again to the deferral of any consideration of the protection claims before observing that there were no other visa options available such that the applicant would be "deported and permanently excluded from Australia", being consequences that were "intended by the Parliament". Having concluded that a protection visa application was an option that remained available for the review applicant to pursue, the Tribunal gave "neutral weight" to the legal consequences of the decision.
2. Rangiah J found the Tribunal erred in finding that deportation and permanent exclusion were consequences intended by Parliament and so should be given neutral weight. His Honour said that by reasoning in that way the Tribunal had erroneously proceeded on an assumption that Parliament had expressed a preference for there to be a non-revocation decision. In addition, his Honour held that the Tribunal had committed jurisdictional error by failing to grapple with the applicant's claim that a legal consequence of the non-revocation decision included his prolonged (and possibly indefinite) detention. On that topic, he said (at [42]):

Further, while the Tribunal had initially identified an inevitable legal consequence of a non-cancellation decision as being that the applicant would remain in immigration detention (see s 196(1) of the Act), it did not refer to that factor again. It is not apparent why the Tribunal decided that no weight should be given to that consequence. In my respectful opinion, the Tribunal could not logically or reasonably have concluded that the continuing detention of the applicant did not weigh to at least some extent in favour of revocation. That was a further jurisdictional error.

1. The Minister in the present case submitted that Singh may be distinguished in two respects. First, it was said that the decision-maker in Singh erroneously identified legal consequences of a non-revocation decision under s 501CA of the Act, whereas the Tribunal in the present case had identified (correctly) the legal consequences of the cancellation of the applicant's visa under s 501(3A).
2. It is not disputed that the legal consequence of a visa cancellation decision is that the former visa holder will be an unlawful non-citizen for the purposes of the Act. By virtue of that status, the person will be liable to be detained, removed from Australia, returned to his or her home country, prohibited from applying for another visa or subject to periods of exclusion and special return criteria: Act, ss 189, 196, 197C, 198, 501E, 501F. Those consequences follow as a matter of statutory construction and it may be said that Parliament intended them to follow for so long as the person has the status of an unlawful non-citizen.
3. However, Parliament must also be understood to have intended that a cancellation decision mandated under s 501(3A) may be revoked under s 501CA(4) of the Act, resulting in the person's visa being be restored. In that event, the adverse consequences described above will not befall them. That nuance is not given express mention in the Tribunal's reasons. However, it does not follow that its decision is affected by jurisdictional error. The Tribunal in this case did not proceed from a presumption that Parliament had evinced a preference for a decision that the cancellation decision should not be revoked. Nothing in Singh binds me to conclude otherwise. Indeed, to conclude otherwise would be to ignore the importance of reading the reasons of an administrative decision-maker fairly and as a whole, without an eye too keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 272).
4. The Tribunal plainly understood that revocation of the cancellation decision would mean that the applicant would avoid the statutory consequences that he otherwise faced at a very personal level. The entire Reasons are dedicated to considerations weighing for or against revocation to varying extents. That demonstrates an appreciation on the Tribunal's part that the question of whether the applicant should suffer the adverse legal consequences of the cancellation decision was a matter for its own evaluation having regard to the particular facts and circumstances of his case. It is true that the particular facts and circumstances are not grappled with by the Tribunal under the heading "Legal consequences of decision under section 501 or 501CA". However, the reason for that is obvious: they are dealt with at length elsewhere by the Tribunal, culminating in findings that weighed in favour of a decision to revoke the cancellation decision and so spare the applicant the legal consequences that would otherwise flow from it. Unlike the facts in Singh, the Tribunal may be understood to have observed (correctly) that the legal consequences of its own decision are subsumed in its evaluation of other considerations prescribed by Direction 99. To my mind, that explains why the Tribunal used the language of neutral weight, and why it observed that the applicant had made no additional submission on the topic warranting further consideration under the discrete heading of "legal consequences". The circumstances might have been different if the applicant was a person who faced prolonged or indefinite detention, whether because he was a person to whom Australia owed non-refoulement obligations or otherwise.
5. This Court has repeatedly held that a decision-maker is not required to repeat in connection with one relevant consideration the facts, circumstances and findings it has made in connection with another: see DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97; (2021) 285 FCR 1 (at [40] - [41]) and the cases there cited. In accordance with those authorities, the Tribunal was under no general obligation to reiterate all of the consequences of the applicant's removal from Australia under each consideration where those consequences might have relevance.

1. This ground concerns the Tribunal's consideration of the strength, nature and duration of the applicant's ties to Australia under [8.3] of Direction 99. It required that the Tribunal have regard to a non-citizen's family members in Australia. Paragraph 8.3(4) relevantly provided:

(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a) the length of time the non-citizen has resided in the Australian community, noting that:

1. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and

1. As explained at the commencement of these reasons, the applicant resided in Australia between the ages of two and five and returned here when he was 17. The applicant contends that the Tribunal failed to have regard to the fact that he had spent a part of his "formative years" here and also failed to attribute considerable weight to that circumstance. He adds that the Tribunal did not set out the text of [8.3(4)] in its Reasons. Employing the language of Feutrill J in CJO23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1228 (at [54]), the applicant contends that the Tribunal "failed to identify and understand the manifest relevance of the facts it found on the material before it" and so "overlooked or ignored a factor to which it was required to have regard under para 8.3(4)a)i". Alternatively, he contends that the Tribunal misconstrued the phrase "formative years" and so failed to recognise the relevance of the period of time he had spent in Australia.
2. The meaning of the phrase "formative years" (as it appears in Direction 99) was considered by Feutrill J in CJO23. His Honour said (at [50]):

The relevant criterion assumes that a non-citizen will have a period of 'formative years'. The natural and ordinary meaning of 'formative' includes, relevantly, 'giving form or shape; forming, shaping, fashioning; moulding' or 'relating to formation or development': The Macquarie Dictionary, 4th edition. Not all non-citizens will have been formed, shaped, fashioned or moulded by events, experiences and circumstances occurring at the same states of life or over the same periods. The criterion requires the events, experiences and circumstances affecting a particular non-citizen 'as formed' to be regarded and the question to be asked is whether the non-citizen was ordinarily resident in Australia during and since the period of that non-citizen's formative years. It requires that a non-citizen's formative years be conceived as constituting a 'period': Nafeh v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 199 at [13]- [19] (Lindgren J). The expression 'formative years' when used in relation to a person is descriptive of a period of childhood, but it need not be confined to that period of a person's life. It is capable of meaning any period during the formation or development of a person's character. It may extend, for example, to a period during which a person is receiving education, training or guidance from people other than parents or those acting in the position of parents. The expression does not require that there be a cut-off at the date a person becomes an adult in the eyes of the law.

1. His Honour went on to infer that a decision-maker had failed to comply with the requirements of [8.3(4)(a)(i)] of Direction 99 in a way that amounted to a constructive failure to perform its task. His Honour said (at [54]):

Given that the Tribunal was required to have regard to and should have given, or at least should have considered giving, considerable weight to the fact the applicant was ordinarily resident in Australia during his formative years, it cannot be inferred from the absence of any reference to that factor or the weight attributed to it that the Tribunal was not persuaded that the factor was of any significance and, therefore, it was not considered material to the Tribunal's reasons. The inference I draw is that the Tribunal failed to identify and understand the manifest relevance of the facts it found on the materials before it. That is, it overlooked or ignored a factor to which it was required to have regard under para 8.3(4)a)i. of Direction 99: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. Therefore, the Tribunal failed to perform the review it was required to perform under s 500(1)(ba) of the Act. That was a jurisdictional error because absent error, the outcome could have been different: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] (Bell, Gageler and Keane JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [9]- [16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

1. I reject the applicant's submission that the Tribunal in the present case committed the same error identified in CJO23. In the course of considering the expectations of the Australian community (as another primary consideration under [8.5] of Direction 99), the Tribunal found that the applicant had lived in Australia for a number of years as a young child and settled here to complete his final year of high school. It expressly found that the applicant had "spent some, though by no means most, of his formative years in Australia". The Tribunal's characterisation of the years spent in Australia as including some of his "formative" years is in accordance with the meaning identified by Feutrill J in CJO23 and plainly accords with the facts. Elsewhere in its Reasons, the Tribunal made a further finding that the majority of the applicant's formative years had been spent in New Zealand. That, too, accords with the facts.
2. In applying [8.3] of Direction 99, the Tribunal expressly set out the factual circumstance that the applicant had lived in Australia between the ages of two and five and that he had completed his final year of high school here. It also had regard to evidence of the applicant's brother who had remained in Australia with him when their parents returned to New Zealand.
3. By reference to that and other material, the Tribunal found that "the strength, nature and duration of the Applicant's ties to Australia weigh in favour of revocation and that moderate weight should be afforded to this consideration in the Applicant's case."
4. The applicant invites the Court to infer that the Tribunal nonetheless failed to recognise and afford "considerable' weight to the fact that he had spent some of his formative years here. He submits that the inference should be drawn because the Tribunal made no reference to [8.3(4)(a)(i)] of Direction 99 and nor did it use the phrase "formative years" in that part of its analysis, and nor did it specify the weight it had afforded that discrete circumstance.
5. I decline to draw that inference.

1. The Tribunal made correct factual findings about the years spent in Australia by the applicant and his age at those relevant times. It found elsewhere in its Reasons that the applicant had spent some of his formative years here and that finding is not shown to be affected by reviewable error. The Tribunal was under no obligation to repeat that characterisation wherever it referred to the same underlying facts. It plainly had regard to the duration and nature of the applicant's ties to Australia, including by express reference to some part of his youth spent here, which it had otherwise correctly characterised as among his formative years. The Tribunal did not expressly refer to the phrase "considerable weight" in [8.3(4)(a)(i)] of Direction 99. However, in the circumstances I have described, its failure to do so cannot, without more, support a conclusion that it misunderstood, misapplied or ignored [8.3(4)(a)(i)] in a way giving rise to jurisdictional error. As the Full Court said in Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 306 FCR 153 (at [45]):

This is not a case where there was no relevant factual finding addressed to the terms of cl 8.3(4)(a)(i), such that it could be inferred that the Tribunal did not regard Mr Campbell‑Smith's residency in Australia during his formative years as material to its decision: cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5], [10] (Gleeson CJ), [68]-[69] (McHugh, Gummow and Hayne JJ). On the contrary, the first sentence of [93] of the Tribunal's reasons suggests it did regard that fact as material, even though the Tribunal did not expressly articulate the weight it gave to that fact. The Tribunal's reasons were not required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) to record every aspect of its thought processes: see, eg, Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 188; (2022) 295 FCR 210 at [36], citing Pallas v Minister for Home Affairs [2019] FCAFC 149 at [45]. While the Tribunal could have articulated more clearly the significance it attached to its acceptance of the fact that Mr Campbell-Smith had resided in Australia during a portion of his formative years, the fact that the Tribunal did not expressly state that it gave that fact 'considerable weight' does not lead to the conclusion that the Tribunal overlooked or ignored, or otherwise departed from, the guidance stated in cl 8.3(4)(a)(i) in the present case.

(emphasis in original)

1. The third ground of review concerns the Tribunal's consideration of the applicant's risk of recidivism under [8.1.2(2)(b)] of Direction 99 as an aspect of the risk he presented to the Australian community. In considering that factor the Tribunal was required to take into account "information and evidence on the risk of the non-citizen re-offending" and "evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence."
2. The Tribunal accepted that the applicant had "demonstrated a willingness and commitment to change", that prison had had a salutary affect on him and that his desire to remain in Australia for his son and family members would act as a "strong protective factor against reoffending" (Reasons at [125], [126]). It concluded that the applicant's likelihood of reoffending had been reduced by his rehabilitative efforts whilst in prison, including the insights and skills he had gained: Reasons, [126]. The Tribunal continued:

... However, the Tribunal considers that the Applicant's rehabilitation is untested in the community. This is of particular concern with respect to the stressors likely to be associated with gaining access to his son notwithstanding the lifetime FVRO in place for Ms B's protection and the fact his prior offending has 'lethality factors' which are associated with a risk of further family violence. Such risks are also a concern given Mstr S' prior exposure to family violence. Having regard to the sentencing court's assessment that the Applicant's risk of recidivism (with the benefit of some rehabilitation) was in the moderate to high range, the Tribunal considers his risk of reoffending would now be in the moderate range. However, given the concerns associated with any further offending, even if the Tribunal took the view of the Applicant's reoffending in a similar manner to be low, such a risk is unacceptable.

1. The applicant submits that the fact that his rehabilitative efforts were yet to be tested in the community could not act as a positive predictor of his future behaviour. He submits that by relying on the fact that his rehabilitation was untested as a step toward its conclusion that he faced an unacceptable risk, the Tribunal engaged in a "logical fallacy". He submits that the fact that his rehabilitative efforts remained untested "did not logically establish nor provide a probative basis to support the existence of a risk of recidivism in the manner found by the Tribunal". It was submitted that the reasoning was affected by jurisdictional error of the kind identified by Moshinsky, O'Bryan and Cheeseman JJ in CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634, (at [79]); see also Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2019) 271 FCR 595, Mortimer J (as her Honour then was) (at [95]); Logan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1068; (2020) 278 FCR 419, Colvin J (at [24]).
2. This ground may be shortly disposed of. The applicant's submissions attribute to the Tribunal a course of reasoning that it did not engage in. The Tribunal did not employ the untested rehabilitative efforts as positively giving rise to an unacceptable risk. Rather, it concluded that an unacceptable risk arose by reason of the concerning contextual facts it had identified. The Tribunal expressly stated that the applicant's rehabilitative efforts had reduced the risk of recidivism from "moderate to high" to "moderate". It remained open to the Tribunal to find that notwithstanding the rehabilitative efforts, those concerns could not be completely assuaged and to characterise the moderate risk the applicant presented as one that was unacceptable.

1. For the above reasons, each of the grounds of review is rejected. There will be an order dismissing the amended originating application with costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.