Federal Court of Australia DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237 Review of: Application for judicial review of Administrative Appeals Tribunal decision delivered on 17 September 2021 by R Cameron File number(s): VID 616 of 2021 Judgment of: ROFE J Date of judgment: 18 October 2022 Catchwords: MIGRATION - decision of the Administrative Appeals Tribunal affirming decision of delegate of the Minister not to revoke mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) – whether decision of Tribunal affected by jurisdictional error – whether Tribunal had regard to an irrelevant consideration – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 454 Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 84 Date of hearing: 5 September 2022 Counsel for the Applicant: Nicholas Poynder Solicitor for the Applicant: Dobson Mitchell & Allport Counsel for the First Respondent: Zoe Maud Solicitor for the First Respondent: Australian Government Solicitor ORDERS VID 616 of 2021 BETWEEN: DTR21 Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: ROFE J DATE OF ORDER: 18 OCTOBER 2022 THE COURT ORDERS THAT: 1. The first respondent's name be amended to "Minister for Immigration, Citizenship and Multicultural Affairs". 2. The application be dismissed. 3. The applicant pay the first respondent's costs of the application, to be assessed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011... REASONS FOR JUDGMENT ROFE J: Introduction 1 The applicant is a citizen of Sierra Leone. He arrived in Australia aged 19, on a Subclass 200 Refugee visa in 2005. 2 On 8 November 2017, the applicant was convicted in the Tasmanian Supreme Court of one count of rape against his partner's 18 year old daughter. On 15 November 2018, the applicant was sentenced to a period of five years' imprisonment. The sentence of imprisonment triggered the cancellation of the applicant's visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act). 3 The applicant seeks judicial review of the Tribunal's decision to affirm the decision of a delegate of the First Respondent (the Minister) to refuse to revoke the cancellation of the applicant's visa per s 501CA(4) of the Act. For the reasons that follow, the application is dismissed. Legislation 4 This application relates to the exercise of discretion under s 501CA of the Act, and in particular the application of Ministerial Direction No. 90 (Direction 90). 5 Section 501 of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test: s 501(1). 6 Section 501(3A) provides that the Minister must cancel a person's visa if the Minister is satisfied that the person does not pass the character test because the person has a "substantial criminal record". A person has a "substantial criminal record" if they have been sentenced to a term of imprisonment of 12 months or more. 7 Section 501CA provides that if the Minister has cancelled the person's visa under s 501(3A), the Minister must notify the person and invite the person to make representations to the Minister about the revocation of the visa cancellation: s 501CA(3). 8 If that person makes representations, the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test (as defined by s 501) or that there is "another reason" why the why the original decision should be revoked: s 501CA(4)(b). 9 The Act provides that the Minister may give written directions to a person or body having functions or powers under the Act: s 499. That person or body must comply with those directions. 10 Direction 90 was made on 8 March 2021, for the purpose of guiding decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Specifically, Part 2 of Direction 90 directs decision-makers on exercising their discretion to refuse a visa under s 501CA(4). 11 Clause 5 of Direction 90 sets out principles which are said to provide the framework within which decision makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles include at cl 5.2(5): Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing consideration may be insufficient to justify not … revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. 12 Clause 6 of Direction 90 provides that, informed by the principles in cl 5.2, a decision-maker must take into account all of the relevant considerations identified in cll 8 and 9. The considerations in cl 8 are "primary considerations", while those in cl 9 are "other considerations". Clause 7 states that primary considerations are generally to be given greater weight than the other considerations, and that one or more primary considerations may outweigh other primary considerations. 13 The four "primary considerations" identified in cl 8 are: (a) protection of the Australian community (8.1); (b) family violence committed by the non-citizen (8.2); (c) best interests of minor children in Australia affected by the decision (8.3); and (d) expectations of the Australian community (8.4). 14 Further directions are provided in relation to each of the four primary considerations. Relevantly to this application, cll 8.1, 8.2 and 8.4 provide as follows: 8.1 Protection of the Australian Community … 8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct … (2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively: a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: i) information and evidence on the risk of the non-citizen re-offending; and ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). … 8.2 Family violence committed by the non-citizen … (3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant: a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; b) the cumulative effect of repeated acts of family violence; c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: i) the extent to which the person accepts responsibility for their family violence related conduct; ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); … 8.4 Expectations of the Australian Community (1) The Australian community expects non-citizens to obey Australian laws whilst in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. (2) In addition, … non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind; (a) acts of family violence; or … (3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community. 15 The "other considerations" in cl 9 which must be taken into account where relevant are: (a) international non-refoulement obligations (9.1); (b) the extent of impediments if removed from Australia (9.2); (c) the impact on victims (9.3); and (d) links to the Australian community, including the strength, nature and duration of ties to Australia, and the impact on Australian business interests (9.4). Background 16 The applicant arrived in Australia in June 2005 with his mother and three brothers. 17 In November 2017, the applicant was convicted of raping the 18 year old daughter of his partner and sentenced to three years' imprisonment. The applicant appealed against his conviction and the Director of Public Prosecutions cross-appealed against the sentence imposed by the trial judge. The Court of Criminal Appeal endorsed the trial judge's conclusion that the applicant's criminal conduct was a "serious example of the crime of rape". The applicant's appeal was dismissed and the Director's cross-appeal was allowed, the applicant being re-sentenced to five years' imprisonment, with a non-parole period of two and a half years. 18 The applicant's offending took place in March 2013. The applicant has since maintained that he did not rape the victim, saying that he feels betrayed by the victim, and claiming that the accusations against him were the result of manipulation and vindictiveness of the victim's father. 19 On 25 January 2019, the Minister notified the applicant of the cancellation of his visa. On 22 February 2019, the applicant made representations seeking revocation of the mandatory visa cancellation. 20 The mandatory cancellation of the visa may be revoked by the delegate, or by the Tribunal for the purposes of the review, if the decision-maker is satisfied that: (a) the applicant passes the character test; or (b) there is another reason why the original decision should be revoked. 21 On 28 June 2021, a delegate of the Minister made a decision to refuse to revoke the cancellation of the applicant's visa. 22 On 6 July 2021, the applicant lodged an application for review of the delegate's decision with the Tribunal. 23 On 17 September 2021, the Tribunal handed down its reasons affirming the delegate's decision refusing the revocation of the cancellation of the applicant's visa (Reasons). 24 On 22 October 2021, the applicant lodged the application to this Court for judicial review on the ground that the Tribunal had considered an irrelevant consideration. The Tribunal decision 25 Before the Tribunal, it was readily conceded by the applicant that he does not pass the character test because he has "a substantial criminal record" within the meaning of ss 501(6)(a) and 501(7)(c) of the Act. The Tribunal then considered whether it was satisfied under s 501CA(4)(b)(ii) of the Act that there was "another reason" why the mandatory cancellation should be revoked. 26 After setting out the background to the application, the evidence before the Tribunal and the legislative framework, the Tribunal turned to each of the considerations in Direction 90. Protection of the Australian community 27 The Tribunal considered the protection of the Australian community at [28]–[77] of the Reasons. Clause 8.1(2) of Direction 90 provides that in considering the protection of the Australian community, decision makers should give consideration to (1) the nature and seriousness of the non-citizen's conduct and (2) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 28 Direction 90 provides guidance as to the matters to have regard to whilst considering the nature and seriousness of the non-citizen's conduct to date in cl 8.1.1(1). These factors include sexual crimes and acts of family violence (cl 8.1.1(1)(a)(i) and (iii)). 29 In considering the nature and seriousness of the applicant's conduct, the Tribunal considered the applicant's offending to be serious, involving a grave breach of trust and subsequent severe consequences for the victim and her family. The Tribunal also noted that the applicant's offending fell within the categories of a sexual crime and an act of family violence. These were factors that weighed extremely heavily against the revocation of the decision to cancel his visa. 30 In considering the risk to the Australian community, the Tribunal considered two pieces of evidence: the "Sex Offender Treatment Summary" and the evidence of Dr Georgina O'Donnell, a forensic and clinical psychologist. 31 The Tribunal noted that the "Sex Offender Treatment Summary" undertaken by the Tasmanian Prison Service and Dr O'Donnell's expert evidence specifically addressed the applicant's risk of re-offending. The Tribunal found: 71. The Tribunal concludes that on the preponderance of the evidence and the opinions expressed before it on the topic that there is no link between denial of offending and sexual violence recidivism. Additionally, it sees no reason not to accept both the evidence of Dr O'Donnell and the opinions expressed in the Sex Offender Treatment Summary. Dr O'Donnell gave evidence that she was familiar with the Intervention Counsellor and Intervention Manager who both signed the Treatment Summary portion of that document concerning the Applicant. Apparently, both of them are experienced professionals working in the Tasmanian Prison system undertaking treatment and rehabilitation of sex offenders. 72. The Tribunal concludes, taking this evidence into account, that the Applicant is a low risk of reoffending or as it was put engaging in sexual violence recidivism. (Emphasis added.) 32 At [75] the Tribunal referred to the effect that the applicant's offending had on the victim, adopting the Court of Criminal Appeal's outline: …Since November 2013 the victim has been suffering from depression and anxiety for which she has been taking medication. She has attended counselling. On three occasions she has been hospitalised for attempted suicide and has experienced suicidal thoughts. Amongst other things she suffers nightmares in which she sees the Applicant's face, has gained significant weight, feels worthless and is disgusted in herself. It should be noted that since the Applicant's offending the victim and her sister have been living in Queensland. The family unit which appeared to be a strong one prior to the offending concerned, has become fractured. 33 After describing the profound and ongoing effect of the rape on the victim, at [76] the Tribunal stated: The account given in the previous paragraph of the impact on the victim of the Applicant's offending is in stark contrast to the observations recorded in the Sex Offender Treatment Summary and even the reports of Dr O'Donnell where the Applicant continues to deny his offending. It will be recalled that in the Sex Offender Treatment Summary the Applicant was recorded as feeling betrayed by the victim. These expressions of denial by the Applicant in the way he has, have the hallmarks of "victim blaming" and indicate, at least to some extent, that the Applicant has failed to gain an insight, or perhaps a proper insight, into his offending. This is of concern to the Tribunal in the context of the harm that would be caused if his offending were to be repeated as low as that risk might well be. 34 At [77] the Tribunal concluded that this consideration weighed "extremely heavily" against revocation of the cancellation decision. Despite acknowledging the rehabilitation program undertaken by the applicant and accepting the evidence that the applicant is a low risk of reoffending, the Tribunal considered the harm that would be caused if the applicant were to reoffend, as unlikely as that may be, would be unacceptable. Family violence committed by the applicant 35 The Tribunal considered family violence committed by the applicant at [78]–[85] of the Reasons, and considered that, overall, this primary consideration also weighed extremely heavily against the applicant. 36 At [82] the Tribunal observed that cl 8.2(3)(c) of Direction 90 must also be considered. After setting out the paragraph (which is set out above), the Tribunal stated at [83]: It has already been recounted in these reasons that the Applicant has consistently denied his offending. The Tribunal has also recorded elsewhere in these reasons that the Applicant stated he felt angry, upset and betrayed by the victim. He went further and asserted that he had been set up by the victim at the whim of her father. These sentiments have the hallmarks of "victim blaming" and as noted earlier indicate a lack of insight into the Applicant's offending. These sentiments do not point towards someone who is accepting responsibility for their family violence related conduct. 37 The applicant conceded before the Tribunal that this primary consideration weighed against him simply by reason of his having been found to have committed a serious sexual offence against a member of his immediate family. 38 The Tribunal acknowledged that the factors in cl 8.2(3) of Direction 90 would collectively weigh in the applicant's favour as this was the applicant's first family violence offence. There was no evidence of frequency or any trend of increasing seriousness of his offending, no cumulative effect of any repeated acts of family violence and no formal warning has ever been given to the applicant. The applicant's rehabilitation was enhanced by his completion of the Sex Offender Treatment Program. 39 Despite this, the Tribunal noted that cl 8.2(3)(c) of Direction 90 must also be considered: (3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant: … (c) rehabilitation achieved at the time of decision since the person's last known act of family violence, including: i. the extent to which the person accepts responsibility for their family violence related conduct; ii. the extent to which the non-citizen understands the impact of their behaviour on the abuse and witnesses of that abuse (particularly children); iii. efforts to address factors which contributed to their conduct. 40 The Tribunal referred to the applicant's consistent denial of his offending, and his feelings towards the victim of anger, upset and betrayal, and noted that it demonstrated the applicant's lack of insight into his offending and impact on the victim. At [83] the Tribunal observed that these sentiments have the hallmarks of "victim blaming" and indicate a lack of insight into the applicant's offending. For these reasons, the Tribunal considered that overall this primary consideration must also weigh extremely heavily against the applicant. Bests interests of minor children in Australia affected by this decision 41 The Tribunal considered the bests interests of minor children at [86]–[91] of the Reasons, and considered that it was in the best interests of the applicant's seven nephews and nieces that he not be removed from Australia. However, as other persons played a parental role for these children, the Tribunal only assigned marginal weight in favour of revocation. Expectations of the Australian community 42 The Tribunal considered the expectations of the Australian community at [92]–[98] of the Reasons. 43 At [97], the Tribunal stated that it considered that: …the expectations of the Australian community are such that the applicant, who was convicted of a very serious crime involving family violence, and as noted earlier has shown a lack of insight into the nature and consequences of his conduct should expect that the mandatory cancellation would not be revoked. 44 In light of cl 8.4 of Direction 90, which sets out the relevant expectations of the Australian community, the Tribunal found that this consideration also weighed extremely heavily against the applicant. 45 The Tribunal found the expectations of the Australian community were such that, having been convicted of a very serious crime involving family violence and having shown "a lack of insight into the nature and consequences of his conduct", the applicant should expect that the mandatory cancellation of his visa would not be revoked. Other considerations 46 The Tribunal also considered that each of the other considerations, save for the impact on the victim if the applicant was permitted to remain in Australia which was afforded no weight, weighed in favour of the revocation of the mandatory cancellation. Conclusion 47 At [132] the Tribunal concluded that the primary considerations of protection of the Australian community, family violence committed by the non-citizen and expectations of the Australian community weighed extremely heavily against revocation of the mandatory cancellation of the visa. Only one primary consideration: best interests of minor children, in this case, the applicant's nieces and nephews, was found to weigh in favour of the applicant, albeit marginally. 48 At [133], in a passage relied upon by the applicant, the Tribunal said: The Applicant's offending was serious, it was an act of rape against a family member. A crime the commission of which he continues to deny. Whilst the Tribunal acknowledges that the material before it indicates that the Applicant is at a low risk of reoffending, his continuing denial of such offending for which he was convicted, demonstrates a lack of insight into such offending. Guided by paragraph 5.2(5) of Direction 90 the Tribunal finds that in these circumstances the nature of the Applicant's conduct, or the harm that would be caused if such conduct were to be repeated is so serious that even strong countervailing considerations are insufficient to justify not revoking the mandatory cancellation. This is particularly in the context of him having committed an act of family violence within the meaning contained in Direction 90. Similarly, guided by paragraph 8.1.2 of Direction 90, such conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable. 49 After outlining the one primary consideration and other considerations in favour of revocation, the Tribunal ultimately concluded at [140] that the primary considerations weighing against the revocation of the mandatory cancellation must prevail: Therefore, the weight that the Tribunal attaches to the considerations in favour of the Applicant when balanced against the primary considerations of protection of the Australian community, family violence committed by the non-citizen and expectations of the Australian community, and the findings concerning the weight to be attached to them referred to above as required by Direction 90, (which is that primary considerations should generally be given greater weight than the other considerations) is such that the findings on these primary considerations attract more weight and therefore must prevail. Ground of Review 50 The sole ground of this application is that the Tribunal had regard to an irrelevant consideration. The applicant contends that having accepted the expert evidence that there was no link between denial of guilt and risk of recidivism, the applicant's continuing denial of his offending was not relevant to any issue before the Tribunal. 51 It is not in dispute between the parties that the Tribunal accepted at [71] of the Reasons that on the preponderance of the evidence and the opinions expressed before it on the topic, that there is no link between denial of offending and sexual violence recidivism. 52 The applicant asserts that despite the Tribunal's acceptance at [71], the Tribunal fell into error in considering the applicant's consistent denial of guilt in the context of the following three primary considerations: (a) Protection of the Australian community: at [76] and [133] of the Reasons. (b) Family violence committed: at [82] to [84] of the Reasons. (c) Expectations of the Australian community: at [97] of the Reasons. 53 Each of paragraphs [76], [82], [83], [97] and [133] of the Reasons are set out above. 54 The applicant submits that the condemnatory remarks made by the Tribunal at [76], [83], and [133] suggest that it was diverted by intense feelings of anger at the moral culpability of the applicant for refusing to accept that he had committed the offence. Accordingly, the applicant submits, there is a realistic possibility that had the Tribunal not placed weight on the applicant's denial of guilt, the Tribunal may have reached a different result. 55 The respondent submits that the Tribunal's acceptance of the evidence that there was no link between denial of offending and sexual violence recidivism, did not render the fact of the applicant's continuing denial of his offending an irrelevant consideration under Direction 90. 56 The respondent submits that the applicant's continuing denial of offending was a relevant consideration for the first primary consideration, pursuant to cl 8.1.2(b)(ii) which, amongst others, directs the decision maker's attention to evidence of rehabilitation achieved by the time of the decision, and the other primary considerations. 57 The respondent submits that the applicant's continuing denial of offending was also relevant to the second primary consideration under cl 8.2(3)(c) of Direction 90, which in the context of evaluating the seriousness of the family violence engaged in by the applicant, required the Tribunal to consider "rehabilitation achieved at the time of decision since the person's last known act of family violence", including "the extent to which the person accepts responsibility for their family violence related conduct" (cl 8.2(3)(c)(i)) and the "extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse (particularly children)" (cl 8.2(3)(c)(ii)). 58 The respondent submits that the applicant's continuing denial of offending was also relevant to the third primary consideration under cl 8.4(1) and (2) of Direction 90; the expectations of the Australian community. Consideration 59 For the reasons that follow, the applicant's ground is not made out and the application is dismissed. 60 To establish that the Tribunal had regard to an irrelevant consideration, the applicant must establish that the consideration in question is extraneous when viewed in light of the provisions, subject-matter, scope or purpose of the relevant statutory scheme: Neat Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277 at [20] (Gleeson CJ); Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 40 (Mason J). 61 The irrelevant considerations ground is not centrally concerned with the process of making particular findings of fact upon which a decision-maker acts; it is concerned with whether a decision-maker has properly applied the law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [74] (McHugh, Gummow and Hayne JJ). 62 The applicant's ground of appeal is premised on the applicant's continuing denial of offending being irrelevant to any of the primary considerations in Direction 90. 63 I consider that the matters for consideration articulated in cll 8.1.2(2)(b), 8.2(3)(c) and 8.4(2)(a) of Direction 90 each allow the Tribunal to consider the applicant's consistent refusal to accept that he committed the offence, and specifically directs the Tribunal to do so in the manner it did in the context of family violence at [76], [83], [97] and [133]. 64 It is convenient at the outset to set out the applicant's denial. The applicant was convicted by a jury in the Tasmanian Supreme Court of raping the victim. The conviction was not overturned on appeal. The applicant pleaded not guilty before that Court and maintained his innocence before the Tribunal. Not only did the applicant deny that he raped the victim, he maintained the view that the victim's father had manipulated the victim into making an accusation against him, as part of the victim's father's ongoing vendetta against him and the victim's mother. The applicant denied any ill-intent or perversion towards the applicant. 65 The applicant's submissions focussed on his denial of offending, and the expert evidence that denial was not indicative of recidivism. Having accepted the expert evidence of Dr O'Donnell, the applicant submits that Tribunal could not consider the applicant's denial as relevant to his risk of re-offending. As such, any consideration by the Tribunal of the applicant's denial in the context of the primary considerations was an irrelevant consideration. 66 The applicant's submissions focus on the criminal offence and overlook that the rape was also an act of family violence. The applicant's consistent denial of the offence, and the assertion that he had been set up is relevant to considerations of family violence. As the Tribunal observed at [83], the applicant's sentiments had the hallmarks of "victim blaming" and indicated a lack of insight into the offending, and an absence of responsibility for the applicant's family related conduct. The Tribunal's comments were made in the family violence context, and were unrelated to any issue of re-offending. 67 Direction 90 makes clear that the Australian Government considers family violence to be a serious issue to be taken into account in any consideration of whether to revoke a mandatory cancellation pursuant to s 501CA. This reflects the attitude of the Australian community towards family violence. 68 The principles articulated in cl 5.2 of Direction 90 which provide the framework within which decision makers are to approach their task of deciding whether to revoke a mandatory cancellation include, at (5) an express reference to family violence, noting that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. 69 Not only is family violence committed by the non-citizen a stand-alone primary consideration (cl 8.2), each of the other three primary considerations expressly refers to family violence as a relevant factor to be considered (see cll 8.1.1(1)(a)(iii), 8.3(4)(g) and 8.4(2)(a)). 70 The Tribunal recognised that Australian society has no tolerance for family violence at [96] and also that the provisions of Direction 90 reflect the expectation of the Australian community that a person's visa will be cancelled when they have engaged in acts of family violence. The Tribunal noted that the "Australian community has repeatedly for many years sent a loud and clear message that family violence is intolerable". 71 I consider that it was appropriate for the Tribunal to consider the applicant's denial of offending for purposes independent of sexual recidivism, and as the foundation for the conclusion that the applicant "had failed to gain insight, or perhaps a proper insight, into his offending", which lack of insight was relevant to the family violence considerations. In each of the paragraphs of which the applicant complains, the Tribunal was addressing the prescribed family violence considerations. 72 In light of the wording in cl 8.1.2(2)(b)(ii) directing decision makers to have regard to the evidence of rehabilitation achieved by the time of their decision, I consider that it was open to the Tribunal to have regard to the applicant's continuing denial of the offending and his feelings towards the victim in the context of considering the applicant's rehabilitation achieved by the time of the decision. The Tribunal accepted that the applicant was a low risk of reoffending. However, the Tribunal considered that the applicant's failure to gain an insight into the offence was of concern if there was any repeat offending — "as low as that risk might well be". The profound effect of the offending on the victim and her family meant that any risk that it might be repeated was "simply unacceptable". 73 The Tribunal's "condemnatory remarks" at [83] were made in the family violence context in the course of considering the stand-alone family violence primary consideration. The Tribunal's comments, together with those at [84], related to the applicant's lack of insight into the profound impact of the act of family violence for which he was convicted on the victim and her family, including the irretrievable fracture of the victim's family unit. There was no discussion of the likelihood of the applicant reoffending. 74 I consider that in paragraphs [83] and [84] of the Reasons, the Tribunal dealt directly with the evidence related to matters in cll 8.2(3)(c)(i) and (ii). To consider the seriousness of the family violence, it was appropriate for the decision-maker to have regard to the applicant's consistent denial and assertions of being set up in order to make findings about the rehabilitation achieved by the applicant at the time of the decision and the extent to which the applicant understood the impact of their behaviour. 75 At [97] the Tribunal echoed what it had said earlier about the provisions of Direction 90 reflecting the Australian community's lack of tolerance for family violence and expectation that a person who has engaged in family violence will have their visa cancelled. 76 It is clear from cl 8.4(3) of Direction 90 that, in having regard to the expectations of the Australian community as stated in paragraphs 8.4(1) and (2), it is not relevant to consider whether the non-citizen poses a measurable risk of causing physical harm, as the expectations are said to apply "regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community". In this context the Tribunal's reference to the applicant having "shown a lack of insight into the nature and consequences of his conduct" relates to the applicant's failure to appreciate the effect of the family violence on the victim and her family, not to any assessment of the likelihood of the applicant reoffending. In light of the specific reference to family violence in cl 8.4(2)(a), the Tribunal's consideration of the applicant's lack of insight into conduct which the Australian community considers to be intolerable, is relevant to the Tribunal's consideration of the expectations of the Australian community. Materiality 77 For the above reasons I do not consider the Tribunal had regard to an irrelevant consideration. If, contrary to my findings, the Tribunal, contrary to its acceptance of Dr O'Donnell's evidence, gave consideration to the applicant's likelihood of reoffending based on his denial of offending that would constitute an irrelevant consideration, I consider the materiality of that error below. 78 To establish jurisdictional error, the applicant must demonstrate that there was a realistic possibility that a different decision could have been reached had the irrelevant matter not been considered: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 454 at [2], [38] – [39] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 79 The applicant bears the onus of establishing the materiality of the error: MZAPC at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 80 The applicant submits that there was a realistic probability that had the Tribunal not placed weight on the denial of guilt, it may have reached a different result. 81 The respondent submits that even if it were the case that the Tribunal did have regard to an irrelevant consideration, there was no realistic possibility that a different decision could have been reached had the irrelevant matter not been considered. Notwithstanding the Tribunal's concern that the applicant's denial of his offending indicated that the applicant had "failed to gain an insight, or perhaps a proper insight, into his offending", the Tribunal found that the applicant was a low risk of reoffending (at [72] and [77]). The respondent submitted that such a finding was the most favourable finding available, as Dr O'Donnell accepted that it could not be said that anyone is "no risk of reoffending". 82 I agree with the respondent's submissions and consider the applicant has not established the materiality of the error, if any. 83 As such, I find that ground one is not made out and the application should be dismissed. 84 The respondent sought an order that the first respondent's name be amended to "Minister for Immigration, Citizenship and Multicultural Affairs". There was no objection to such an order. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate: Dated: 18 October 2022