Victorian Institute of Teaching v Rachelle

MCEVOY J: 1 By an amended notice of appeal dated 31 January 2024, the applicant, the Victorian Institute of Teaching, appeals pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal made on 25 August 2023. The Tribunal set aside a decision of the Institute to cancel the teaching registration of the respondent, Ms Rachelle, pursuant to s 32(2) of the Trans-Tasman Mutual Recognition Act 1997 (Cth) (TTMR Act). 2 The Institute contends that in reaching a conclusion that Ms Rachelle was a fit and proper person to hold registration as a teacher in Victoria, the Tribunal erred in law. It appeals from the Tribunal's decision to reinstate Ms Rachelle's registration on three grounds, each of which raise a question of law as to how that decision was made. 3 For the reasons that follow I have concluded that the Institute's appeal should be allowed, and the matter of whether Ms Rachelle's cancelled teaching registration ought be reinstated be remitted to the Tribunal, differently constituted, to be determined according to law.

BACKGROUND 4 Ms Rachelle was a teacher in Victoria from February 2011 when she was first granted registration by the Institute, until May 2013 when she relocated to New Zealand. In or around August 2015 Ms Rachelle made an application for her Australian registration to be recognised in New Zealand pursuant to the mutual recognition scheme contained in s 14 of the Trans-Tasman Mutual Recognition Act 1997 (NZ). That application was granted by the Institute's equivalent authority in New Zealand, the Teaching Council of New Zealand, on or around 13 August 2015. 5 In August 2016 Ms Rachelle was convicted of one charge of driving with excess blood alcohol by the New Zealand District Court. Ms Rachelle was also convicted of an additional and separate charge of driving with excess blood alcohol by the same court in October 2017 (first group of charges). 6 On 5 June 2019, the New Zealand Teachers' Disciplinary Tribunal convened a hearing regarding Ms Rachelle's registration as a teacher, having become aware of her two convictions of driving with excess blood alcohol during a mandatory police check. Ms Rachelle had failed to disclose these convictions to the Teaching Council of New Zealand herself. On 17 July 2019 that tribunal determined to cancel Ms Rachelle's registration. Ms Rachelle appealed that decision to the New Zealand District Court, which dismissed her appeal on 11 November 2020. She then sought leave to appeal to the Court of Appeal of New Zealand, which was refused on 12 August 2021. 7 On 26 August 2019, Ms Rachelle made an application to the Institute to have her Victorian registration renewed. However, she did not disclose her two criminal convictions, nor the fact that her registration had been recently cancelled in New Zealand, despite these being questions on the application form. Ms Rachelle was not employed as a teacher in New Zealand at this time, nor at any other time during which she lived in New Zealand and was appropriately registered. 8 Ms Rachelle returned to Australia on 25 April 2021. On 26 April 2021 she was charged with three counts of making threats to kill and one count of using a service to menace (second group of charges). On 22 November 2021 Ms Rachelle was charged with six further offences, including several counts of contravening a family violence intervention order, one count of persistent contravention of a family violence order and using a carriage service to harass (third group of charges). The conduct underlying these ten charges comprising the second and third groups of charges were the subject of allegations made by Ms Rachelle's sister. The Institute was subsequently made aware of these charges by Victoria Police. Ms Rachelle was later found guilty without conviction of persistent contravention of a family violence intervention order, and the remainder of the charges were withdrawn. 9 After becoming aware of the remaining criminal charges in Australia and the cancellation of the New Zealand registration by reason of criminal convictions, the Institute cancelled Ms Rachelle's registration to teach in Victoria pursuant to s 32(1) of the TTMR Act. Section 32(1) of the TTMR Act provides that if a person's registration in an occupation in New Zealand is cancelled for reasons including as a result of or in anticipation of criminal proceedings, then the person's registration in that occupation in Australia is affected in the same way. 10 Section 32(1) of the TTMR Act is subject to s 32(2), which provides that a registration cancelled under s 32(1) may be reinstated by the relevant Australian authority if it thinks it appropriate to do so in the circumstances. By application dated 21 April 2022, Ms Rachelle applied to the Institute to have her registration reinstated pursuant to s 32(2) of the TTMR Act. This application was refused by the Institute on 28 July 2022 (Institute Decision). 11 In the time between becoming aware that Ms Rachelle's New Zealand registration had been cancelled and making the Institute Decision, the Institute sent a series of letters to Ms Rachelle which included requests for her to provide character references from independent persons and other members of the teaching profession who were aware of her conduct and could comment on her character. Ms Rachelle did not provide the Institute with any such statements nor any independent evidence of her character. 12 Ms Rachelle sought review of the Institute Decision to refuse reinstatement in the Tribunal.

THE TRIBUNAL'S DECISION 13 In its decision made on 25 August 2023, the Tribunal determined and made orders to the effect that the Institute Decision be set aside and substituted with a decision to reinstate Ms Rachelle's cancelled registration pursuant to s 32(2) of the TTMR Act. 14 The Institute summarised the evidence before the Tribunal as including: (1) evidence of Ms Rachelle's admissions as to the underlying conduct the subject of the second group of charges, in addition to evidence of the charges themselves; (2) a statement made by Ms Rachelle's sister detailing her allegations regarding the conduct of Ms Rachelle toward her; and (3) a voice message audio recording in which, in the Institute's submission, Ms Rachelle can be heard using abusive language toward her sister, and in which she makes a threat to kill her sister. 15 Relevantly to this appeal, the Tribunal concluded as follows: (1) the question for determination was whether it was appropriate to reinstate Ms Rachelle's registration, which required a determination of whether her character, reputation and conduct were such that she should be allowed to teach in a school; (2) a determination of whether a cancelled registration ought be reinstated in Victoria under s 32(2) of the TTMR Act is to be informed by the Education and Training Reform Act 2006 (Vic) (ETR Act) which is the legislation under which the Institute performs its regulatory function; (3) the critical determination with respect to Ms Rachelle's registration by reference to the ETR Act was whether she was fit to teach within the meaning of s 2.6.9(2); (4) Ms Rachelle was fit to teach within the meaning of s 2.6.9(2) of the ETR Act because: (a) in circumstances where the first group of charges occurred in New Zealand while Ms Rachelle was not teaching and was in fact unaware she held a registration to teach, six years had passed since the most recent of the underlying conduct, and there was no evidence of any further driving offences in New Zealand or Australia since then, the first group of charges had little relevance to Ms Rachelle's ability to teach and ought be given little weight;;;;;;; (b) although her failure to disclose both the first group of charges and the cancellation of her New Zealand registration to the Institute raised questions about her honesty and demonstrated an unwillingness to comply with disclosure requirements of the registration scheme, it did not rise to the level of demonstrating she was not fit to teach; (c) despite accepting evidence that she did threaten to kill her sister, the second group of charges, which are referred to in the reasons of the Tribunal (Reasons) as the "Hollyoak charges", should be given very little weight regarding Ms Rachelle's fitness to teach because there was no "probative evidence" available to the Tribunal to suggest that the conduct was serious, and the charges were ultimately dismissed; (d) there was no probative evidence before the Tribunal of the conduct alleged to have occurred in the third group of charges, which are referred to in the Reasons as the "Finelli charges", and in any event these charges were largely withdrawn; (e) her conviction for persistently contravening a family violence intervention order, while a factor that weighed against her, ought also be given little weight because the fact that she was fined without conviction suggests the conduct was not serious; (f) her conduct as alleged in the first, second and third groups of charges ought to be given very little weight because the evidence did not suggest Ms Rachelle would reoffend in the same way, the offending had no connection to her teaching, and it did not cause harm to or have an impact on any students or other teachers; (g) in the absence of other evidence of her teaching ability or performance in the classroom itself, Ms Rachelle's own evidence that she was a capable and processional teacher, with approximately six years' experience "in the field" and who had a positive influence on her students, could be accepted; (h) there was therefore probative evidence of her fitness to teach, and Ms Rachelle's character, reputation and conduct were such that she should be allowed to teach, when weighed against the countervailing factors arising from her past criminal conduct and failures to disclose that conduct to the relevant authorities.

THE APPEAL 16 The Institute now appeals from the decision of the Tribunal, advancing the following questions of law: (1) In determining that it was appropriate to reinstate Ms Rachelle's registration, did the Tribunal fail to have regard to a relevant consideration, being the consideration specified in s 2.6.3(1A) of the ETR Act? (2) Did the Tribunal fail to have regard to critical material that was before it, by failing to consider the audio recording of phone messages in which it is alleged Ms Rachelle made threats to kill her sister? (3) Did the Tribunal make findings of fact, critical to its ultimate decision, that were illogical, irrational, unreasonable or otherwise not based in evidence by finding that: (a) Ms Rachelle was a "capable and professional teacher who had a positive influence on her students" based entirely on Ms Rachelle's assertions to that effect; and/or (b) Ms Rachelle had been a teacher for six years, in circumstances where her evidence established that she had only practised as a registered teacher for, at most, two years, in total, from 2011-2012; and/or (c) Ms Rachelle's self-assessment of being a "capable and professional" teacher (in 2011 and 2012) comprised probative evidence of her current fitness to teach, and that her current character and reputation are such that she should be allowed to teach? 17 The Institute submits that each of these questions should be answered in the affirmative. On this basis the Institute seeks to have the decision of the Tribunal set aside and the matter remitted to a differently constituted Tribunal to be determined according to law. 18 It should also be recorded that by an interlocutory application dated 12 March 2024, supported by an affidavit of the same date affirmed by the Institute's solicitor, the Institute sought leave to file additional evidence which was not before the Tribunal in the form of a transcript of the audio recording referred to above, in which Ms Rachelle threatened to kill her sister. I allowed this application on the basis that the transcript was not strictly new evidence in circumstances where the recording itself had been in evidence before the Tribunal and it was convenient for the Court to have before it a transcript of that recording. 19 Ms Rachelle, who appeared in person on the appeal, does not articulate a position in any direct manner in relation to the questions of law raised by the Institute, other than to submit that the court should find that the Reasons were correct. Ms Rachelle filed two affidavits, one dated 15 January 2024 and the other dated 27 March 2024, which together attached a number of documents constituting her evidence in the appeal. These documents are as follows: (1) Exhibit 1, which is an extract of a letter from the Institute to Ms Rachelle dated 28 July 2022 in which the Institute notified her of the Institute Decision; (2) Exhibit 2, which is a chain of emails dated between August and September 2023 in which Ms Rachelle requests a sum of compensation from the Institute for lost income following the decision of the Tribunal and then the Institute notifies Ms Rachelle that it had not identified a legal or evidentiary basis on which to provide compensation to her; (3) Exhibit 3, which is a chain of emails dated September 2023 which also relate to Ms Rachelle's claim for compensation from the Institute and includes a further articulation of her claim in which she makes a claim for "damages" of "$500,000 or more" and the Institute's response acknowledging receipt of her email; (4) Exhibit 4, which comprises: (a) a County Court of Victoria document entitled "result of appeal" which states that four charges against Ms Rachelle, being those making up the second group of charges, are dismissed; (b) a letter dated 21 December 2021 relating to Ms Rachelle's sister; and (c) a number of orders of the Magistrates' Court of Victoria reflecting the outcomes of Ms Rachelle's appeal from those convictions making up the third group of charges; (5) Exhibit 5, which is a medical certificate dated 13 December 2021 expressing Ms Rachelle's treating medical practitioner's opinion that she "does not have any mental health issues"; (6) Exhibit 6, which is an extract of paragraphs [36] to [41] of the Reasons; (7) Exhibit 7, which comprises: (a) a letter from the Institute to Ms Rachelle dated 22 December 2023 to the effect that it was still considering Ms Rachelle's application for renewal of her registration but due to some delay on its part her registration would be extended until 31 March 2024, or until a decision was made; and (b) a tax invoice showing that Ms Rachelle paid her annual registration fee to the Institute on 14 December 2023; and (8) Exhibit 8, which is an email from Senator Sarah Henderson to Ms Rachelle dated 30 January 2024 which appears to be a response to a complaint raised by Ms Rachelle regarding the cancellation of her registration and in which Senator Henderson states that she "is sorry to hear what [Ms Rachelle] has endured" and requests "a brief summary of the core issues". 20 During the hearing Ms Rachelle indicated that she also relied on an additional document, referred to as Exhibit 9, which is an article published in the Herald Sun newspaper in Melbourne on 30 August 2023 which summarises the Tribunal's decision regarding her registration and its conclusion that she is fit to teach. 21 Ms Rachelle submits that the Tribunal's findings and reasoning regarding the first group of charges (that is, that they are irrelevant to her current teaching ability) were correct. She also submits that the audio recording and her conduct towards her sister should not be relied upon as evidence to support a cancellation of her teaching registration because her conduct in relevant respects was as a result of personal and family circumstances at a time when she was particularly devastated and upset. She says that her conduct has no impact on her ability to teach. Ms Rachelle disputes the Institute's submissions to the extent that they suggest she is not a good teacher. She submits that she is well equipped to teach, that she is a passionate teacher with a love for her students, and that she would never harm them in any way. 22 While not directly relevant to the Institute's appeal, Ms Rachelle: (1) claims that she is owed damages for victimisation, bullying, harassment and defamation by the Institute, which she says is supported by both Exhibits 1 and 9; (2) claims that she is owed compensation from the Institute for the lack of income and employment opportunities she has suffered as a result of her registration having been cancelled, and submits that an email in which the Institute acknowledges receipt of her request (in Exhibits 2 and 3) constitutes an acknowledgement that the compensation is in fact owed to her; (3) submits that by appealing the Tribunal's decision, the Institute has engaged in an abuse of process and an obstruction of justice; (4) submits that that the recording the subject of the Institute's second ground of appeal was obtained in breach of the Privacy Act 1988 (Cth), although she does not say which section or sections in particular she alleges have been breached by the Institute; (5) submits that the Institute has engaged in conduct in contravention of the Fair Work Act 2009 (Cth) by offering to extend her registration before cancelling it, relying on Exhibit 7 of her evidence in support of this this claim; and (6) submits that Exhibit 8, the email from Senator Henderson, demonstrates that Ms Rachelle has the unwavering support of the Senator Henderson in her claims against the Institute. 23 Despite the opportunity afforded to her on a number of occasions, both during and prior to the hearing, Ms Rachelle has not engaged with the grounds on which the Institute has brought this appeal. She has instead continued to press applications which are not before the court and claims which are not relevant to this appeal. Prior to the hearing of the appeal the court offered to refer Ms Rachelle to the Victorian Bar for pro bono assistance. Ms Rachelle refused that offer, however, on the stated basis that to accept legal assistance in this matter would suppress her own voice. 24 Against this background I turn to consider the Institute's grounds of appeal.

Ground One 25 The Institute's first ground of appeal is expressed as follows: As to question 1: a. In making the decision under review, the Applicant was performing the function conferred on it by s 2.6.3(1)(e) of the ETR Act (i.e. the function of considering whether to "grant [the Respondent] registration or permission to teach in Victorian schools"). b. Section 2.6.3(1A) of the ETR Act requires the Applicant, when performing any regulatory function under s 2.6.3(1) to "consider the wellbeing and safety of children, including by taking into account community expectations". c. In reviewing the decision under review, the Tribunal was required to stand in the shoes of the Applicant, and to have regard to the same matters the Applicant was required to consider in making the decision under review. d. Thus, the Tribunal was required to consider, in making the Decision, "the wellbeing and safety of children, including by taking into account community expectations." e. Notwithstanding this requirement, the Tribunal made the Decision without having regard to the wellbeing and safety of children, whether by taking into account community expectations or otherwise. 26 By this ground the Institute submits that in reinstating Ms Rachelle's registration, the Tribunal erred in law by failing to have regard to mandatory relevant considerations, being those which are found in s 2.6.3(1A) of the ETR Act. 27 Section 2.6.3(1A) of the ETR Act provides: When performing any regulatory function under subsection (1), the Institute must consider the wellbeing and safety of children, including by taking into account community expectations (wellbeing and safety consideration). 28 Obviously enough, and as the Tribunal acknowledged in its Reasons, the ETR Act is the legislative instrument which sets out the functions of the Institute. These functions include, relevantly, granting registration or permission to teach in Victorian schools: ETR Act s 2.6.3(1)(e). When determining whether Ms Rachelle's registration ought be cancelled under s 32(1) of the TTMR Act, the Institute was also exercising the regulatory function conferred upon it by s 2.6.3(1)(e) of the ETR Act. That is to say that when determining pursuant to s 23(1) of the TTMR Act to cancel Ms Rachelle's registration, the Institute was required to have regard to those matters prescribed by the ETR Act, including the wellbeing and safety consideration to be found in s 2.6.3(1A). 29 As the Institute submits, it is uncontroversial that when exercising its power of review under s 43(1) of the AAT Act, the Tribunal stands in the shoes of the original decision maker for the purposes of that review. It must consider the relevant question itself as though it were performing the original function of the relevant administrator in accordance with the law as it applied: Esber v Commonwealth (1992) 174 CLR 430 at 440 (Mason CJ, Deane, Toohey and Gaudron JJ) citing Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 419 (Bowen CJ and Deane J). It follows then, as the Institute submits, that the Tribunal was required to consider those matters the ETR Act prescribes to be considered when a registration is being cancelled or granted under the ETR Act. Those matters include the wellbeing and safety consideration. 30 Turning then to the question of whether the Tribunal failed to have regard to the wellbeing and safety consideration, the Institute submits that such a failure can be inferred from the face of the Reasons. In other words, reference to the Reasons makes it plain that these matters were not considered. I accept that as a matter of fact the Reasons considering Ms Rachelle's fitness to teach make no mention of or otherwise reference s 2.6.3(1A) of the ETR Act, the wellbeing and safety of children, or community expectations with regard to the conduct of teachers. 31 The Institute correctly accepts that the mere failure to make mention of a particular matter does not automatically lead to an inference that it was not considered at all, that the Reasons ought not be overzealously scrutinised in the search for error, and that an alternative inference might be available that the Tribunal took into account the matters in s 2.6.3(1A) of the ETR Act but did not consider those matters material and thus did not mention them: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). 32 However, the Institute submits that given the matters specified by s 2.6.3(1A) of the ETR Act were mandatory relevant considerations, it would not have been open to the Tribunal to consider them irrelevant or immaterial: Minister for Immigration and Multicultural Affairs v Yusif (2001) 206 CLR 323 at 330 (Gleeson CJ), 346 (McHugh, Gummow and Hayne JJ). Rather, the inference should be drawn that these matters were not considered by the Tribunal and (or) were not given proper, genuine and realistic consideration as they ought to have been. The Institute submits that in the circumstances, absent any mention of s 2.6.3(1A) or its terms in the Reasons, the court should draw the inference that the Tribunal failed to consider the matters specified by s 2.6.3(1A) of the ETR Act. 33 I accept that the inference should be drawn from the lack of reference to the wellbeing and safety consideration in the Reasons, and reading the Reasons as a whole, that the Tribunal failed to take this consideration into account when making its decision. This error was material. The Tribunal's decision could well have been different had it taken s 2.6.3(1A) into account in assessing Ms Rachelle's fitness to teach. This failure has the effect of vitiating the Tribunal's decision and ground one must succeed. 34 By reason of my conclusion in this regard the matter will need to be remitted to the Tribunal to be considered afresh. Although it is not strictly necessary in these circumstances for me to consider grounds two and three, as I consider these grounds to have substance I record my conclusions in relation to them below.

Ground Two 35 The Institute's second ground of appeal is expressed as follows: As to question 2: a. The Tribunal was required to make the correct or preferable decision based on the material before it. b. Part of the material before the Tribunal was an audio recording of voice-mail messages left by the Respondent on her sister's telephone. The audio recording is a recording of the Respondent making (what were alleged by the Applicant to be) threats by the Respondent to kill her sister. c. The audio recording was critical evidence in respect of the Tribunal's consideration of what it described as "the Hollyoak charges", which are dealt with in the Tribunal's reasons at [17], [27], and [41]. d. The Respondent submitted, before the Tribunal, that the Tribunal could find that the Respondent made threats to kill her sister, notwithstanding criminal charges in respect of this alleged conduct were dismissed. e. In rejecting the Respondent's submission, the Tribunal found, at [41] (emphasis added): The only evidence that remains is from Ms Rachelle who said that she threatened her sister because she slept with her partner and ruined her life. However, there is no probative evidence which would enable me to make findings of fact that the conduct was serious. The Judge took the view that the case concerned heated, colourful words between family members and did not amount to a threat to kill. Because these charges were dismissed and absent any other probative evidence, I give them no weight. f. In reaching this conclusion, the inference should be drawn that the Tribunal failed to have regard to the audio recording. This inference should be drawn because the Tribunal made no reference to the audio recording in its reasons and: i. given the high level of relevance of the recording to the Applicant's contention that the Respondent had made threats to kill her sister, the Tribunal could not have reached the conclusions emphasised in sub-paragraph (e) above if it had considered the recording; ii. alternatively, if the Tribunal listened to the recording, but nonetheless reached the conclusions emphasised in sub-paragraph (e) above, it would necessarily have made some reference to why and how it reached those conclusions despite the existence and contents of the recording. 36 By this ground the Institute submits that the Tribunal failed to conduct the review required of it by law because it failed to have regard to all critical material that was before it. In particular, the Institute submits that the Tribunal failed to have regard to the audio-recording on which Ms Rachelle is recorded abusing and making threats against her sister, including threats to kill, and failed to have regard to the statement of Ms Rachelle's sister deposing to the threats to kill and their effect on her. To support this ground the Institute advances the following propositions: (1) first, that the Tribunal was required to make the correct or preferable decision based on the material before it; (2) secondly, that the recording of Ms Rachelle's alleged threats to her sister was material that was before the Tribunal; (3) thirdly, that the recording was material which the Tribunal was required to take into account in making its decision; and (4) fourthly, that the Tribunal failed to take the recording into account. 37 The first proposition is uncontroversial. The Tribunal was required to conduct a review according to law: Drake at 589. The Tribunal acknowledged (at [41] of its Reasons) that it was required to make the correct or preferable decision based on the material before it. 38 As to the second proposition, the audio recording was in evidence before the Tribunal. It was referred to by the Institute, and relied on by it, although it was not played at the hearing. 39 As to the third proposition, the Institute relies on the centrality of the audio-recording to the second group of charges, referred to in the Reasons as the Hollyoak charges. 40 The second group of charges is described at [17] of the Reasons. The Tribunal noted that on 26 April 2021 Ms Rachelle was charged with three counts of making threats to kill and one count of using a carriage service to menace. Ms Rachelle initially pleaded guilty to those charges, was convicted, and fined $1,000. She subsequently appealed from that conviction, rescinded her plea of guilty, and all charges were dismissed. The Tribunal quotes the County Court Judge who dismissed the charges as having taken the view that the "case concerned heated, colourful words between family members, but this fell short of proving the charges." 41 As recorded at [27] of the Reasons, Ms Rachelle made admissions in respect of the conduct underlying the second group of charges while being cross examined. 42 Further, as recorded at [41] of the Reasons, the Institute submitted that the Tribunal could find that the conduct alleged in the second group of charges occurred because of the evidence in support before the Tribunal and because of the different standard of proof between disciplinary and criminal proceedings. Critically, the evidence before the Tribunal included Ms Rachelle's admissions, the statement of Ms Rachelle's sister detailing those threats, and the audio-recording containing the threats to kill. 43 The Tribunal rejected the Institute's submission that it should find that the conduct underlying the second group of charges occurred, reaching the following conclusion in its Reasons at [41]: The only evidence that remains is from Ms Rachelle who said that she threatened her sister because she slept with her partner and ruined her life. However, there is no probative evidence which would enable me to make findings of fact that the conduct was serious. The Judge took the view that the case concerned heated, colourful words between family members and did not amount to a threat to kill. Because these charges were dismissed and absent any other probative evidence, I give them no weight. (emphasis added) 44 As to the fourth proposition, the Institute relies upon the fact that the Tribunal made no mention of the audio-recording in its Reasons. The Institute submits that the court should draw the inference that the Tribunal failed to consider the audio-recording from the Tribunal's failure to mention it in its Reasons. The Institute accepts that the inference it contends for will not automatically be drawn from the mere absence of any reference to the audio-recording in the Reasons, and that given the content of the Tribunal's obligation to give reasons (see s 43(2B) of the AAT Act) an alternative inference may be drawn that the Tribunal did not consider the evidence to be material: see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 605-606 [31] (French CJ and Kiefel J). 45 Nonetheless, the Institute submits that the court should draw the inference that the material has not been considered, rather than that it was considered and determined by the Tribunal to be immaterial: see, by analogy, Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [34] (Katzmann, Griffiths and Wigney JJ); Minister for Immigration and Border Assistance v MZYTS (2013) 230 FCR 431 at [52] (Kenny, Griffiths and Mortimer JJ). 46 The Institute submits that the recording comprises voicemail messages left by Ms Rachelle on her sister's voicemail which capture Ms Rachelle abusing and making threats to her sister, including threats to kill her. The Institute submits that given the high level of relevance, and high probative value of the recording to support the Institute's contention that Ms Rachelle made threats to kill, the Tribunal could not have reached the conclusions emphasised at [43] above if it had considered the recording, or the statement of Ms Rachelle's sister. 47 Alternatively, the Institute submits, if the Tribunal had listened to the recording or considered Ms Rachelle's sister's statement but had nonetheless reached the conclusions emphasised at [43], it would necessarily have made some reference to why and how it reached those conclusions despite that evidence. 48 For the reasons advanced by the Institute I accept that the Tribunal's failure to have regard to this evidence was a legal error and a material one. The Tribunal's decision may well have been different had it not made this error. 49 It follows from my conclusion in this regard that I would also hold that ground two succeeds.

Ground 3 50 The Institute's third ground is expressed as follows: As to question 3, the Tribunal erred in three relevant respects, each critical to the Decision: a. First, the Tribunal's finding (at [46]) that it was "prepared to accept Ms Rachelle's evidence that she was a capable and professional teacher who had a positive influence on her students" was based on the Tribunal accepting a bald assertion to that effect from the Respondent. b. To rationally conclude that someone is a capable and professional teacher requires more than the person's own assertion to that effect. Nonetheless, the Tribunal made its conclusion on that basis alone. c. Secondly, the finding that the Respondent was a capable and professional teacher was based on the Tribunal accepting (at [46]) the Respondent's claim to have "6 years in the field (mostly private schools)". d. This finding was illogical, irrational, and otherwise had no basis in evidence, in circumstances where the Respondent's own evidence established that she could not have practised as a teacher for more than two years (between 2011 and 2012) in circumstances where the Respondent: i. was first registered as a teacher in Victoria in February 2011; ii. last taught in 2012, and/or left Australia for New Zealand in May 2013 and did not teach thereafter. e. Thirdly, the Tribunal's finding at [47] that "it follows [from the Tribunal having accepted the Respondent's self-assessment of being a capable and professional teacher who had a positive influence on her students] that there is probative evidence of Ms Rachelle's fitness to teach and that her character, reputation and conduct are such that she should be allowed to teach" was unreasonable, illogical, irrational, or otherwise not open on the evidence, for either or both of two reasons. f. Even if the underlying finding of fact (that in 2011 and/or 2012 the Respondent was a capable and professional teacher who had a positive influence on her students) was open, it was not open to the Tribunal to reason (as it did), that it followed, in 2023 at the date of the Decision, the Respondent remained a capable and professional teacher who was a positive influence on her students. i. Alternatively, it was not open to the Tribunal to conclude (as it did) that it followed from its acceptance that the Respondent was, in 2011-2012, a capable and professional teacher who had a positive influence on her students that the Respondent's character or reputation are such that she should be allowed to teach. 51 In advancing this ground of appeal the Institute accepts that the court must not engage in a review on the merits of a decision of the Tribunal in an appeal limited to a question of law. Whether a finding of fact is open to an administrative decision maker is, however, a question of law. 52 The Institute also accepts that the threshold for the illogicality or irrationality grounds of review is necessarily difficult to surmount, lest the distinction between merits and judicial review be lost: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] (Crennan and Bell JJ); see also Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] (Hayne, Kiefel and Bell JJ) and [108]-[113] (Gageler J). 53 The Institute submits that while the decision in SZMDS focussed on the unreasonableness of the "ultimate decision" of an administrative decision-maker, the findings on the way to an ultimate conclusion may also be assessed with a view to ascertaining whether those findings are illogical or irrational: Minister for Border Protection v SZUXN [2016] FCA 516 at [55] (Wigney J). 54 The Institute also notes that to be unreasonable, a decision need not necessarily be so unreasonable that no reasonable decision-maker would have made the decision. Rather, the conclusion that a decision is unreasonable may be drawn if the decision lacked "an evident and intelligible justification.": Li at [76] (Hayne, Kiefel and Bell JJ) and [105] (Gageler J). 55 Having regard to these statements of principle, which may all be accepted, the Institute submits that the Tribunal's findings at [46] to [47] of its Reasons in respect of Ms Rachelle's fitness were irrational, illogical and (or) unreasonable. 56 First, the Institute submits that the Tribunal's finding that it was "prepared to accept Ms Rachelle's evidence that she was a capable and professional teacher who had a positive influence on her students" was unreasonable. 57 This finding, the institute submits, in relying on Ms Rachelle's self-assessment of her capability of a teacher, made some 11 years after (on her evidence) she last taught, lacked an evident and intelligible justification. The Institute submits that to have made a positive finding that Ms Rachelle was a capable and professional teacher, the Tribunal needed to have more than her mere assertion of that fact and a recitation of some of the schools at which she had taught. It is said that to conclude rationally that someone was a capable teacher requires more than that person's own bald assertion to that effect and the absence of contrary evidence. This is particularly in circumstances where s 2.6.9(2)(f) of the ETR Act provides that an application for registration may be refused if "the applicant has not produced evidence which satisfies the Institute of his or her suitability to teach" and, as described above, where the applicant was repeatedly invited to provide the Institute with references in support of her application but did not do so. Nonetheless, the Institute submits that the Tribunal reached its conclusion on these bases alone. 58 In all the circumstances I accept that the Tribunal's finding that Ms Rachelle's evidence that she was a capable and professional teacher who had a positive influence on her students should be accepted was unreasonable. As the Institute submits, this finding lacked an evident and intelligible justification. 59 The Institute submits, secondly, that the finding that Ms Rachelle was a capable and professional teacher apparently relied on Ms Rachelle's claim to have "6 years in the field (mostly private schools)". It is the Institute's position that it was not open for the Tribunal to accept Ms Rachelle's claim to have been a teacher for six years in circumstances where it was clear that she: (1) was only registered as a teacher in Victoria in February 2011; (2) stopped teaching and left Australia for New Zealand in May 2013; (3) did not work as a teacher while in New Zealand; (4) returned to Australia on 25 April 2021 and made no claim to have worked as a teacher thereafter; and (5) had her registration cancelled by the Institute on 5 April 2022. 60 The Institute thus submits that on the evidence Ms Rachelle could only have worked as a registered teacher for approximately two years and four months (and a maximum of two and a half years) - between February 2011 and May 2013. 61 I accept the Institute's submission that the Tribunal's finding that Ms Rachelle was a capable and professional teacher was based on the claim to have had six years working as a teacher, and that on the evidence this was simply not possible. The Tribunal's finding in this regard was not open to it. 62 The Institute submits, thirdly, that the Tribunal's conclusion that Ms Rachelle's self-assessment of being a good teacher comprised "probative evidence of Ms Rachelle's fitness to teach and that her character, reputation and conduct are such that she should be allowed to teach" was illogical, irrational, or otherwise not open on the evidence. The Institute submits that this finding lacked an evident and intelligible justification. 63 That is, the Institute says that even if the underlying finding of fact (that up until 2013 Ms Rachelle was a capable and professional teacher who had a positive influence on her students) cannot be impugned, it does not rationally or logically follow (as found by the Tribunal) that: (1) in 2023, being the time at which the Tribunal made its decision, she remained a capable teacher; or (2) even if she remained a capable and professional teacher who was a positive influence on her students, her character or reputation are such that she should be allowed to teach. Put another way, the Institute says, it is possible for a person to be qualified and able to teach, notwithstanding that their character or reputation are such that they are not fit and proper to hold that position. Nonetheless, the Tribunal reasoned that it automatically followed from its positive assessment of Ms Rachelle's ability to teach that her character and reputation are such that she ought to be allowed to teach. 64 In all the circumstances, and unassisted by any substantive submission to the contrary by Ms Rachelle, I accept the Institute's submission that the Tribunal's conclusion that Ms Rachelle's self-assessment of being a good teacher comprised "probative evidence" of her fitness to teach and that "her character, reputation and conduct are such that she should be allowed to teach" was illogical, irrational or otherwise not open on the evidence. I accept that this finding also, in all the circumstances, lacked an evident and intelligible justification. 65 It follows from my conclusions in relation to ground three that it must also succeed.

CONCLUSION 66 For these reasons the Tribunal's decision should be set aside and remitted to the Tribunal, differently constituted, to be determined according to law. The Institute has not sought its costs, and no order as to costs will be made. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.