Federal Court. Was the reasoning by which the Tribunal reached its conclusion that the risk of reoffending was “not negligible” irrational or unreasonable, "in that it was based on the nature of the second offence committed by the visa applicant and his state of mind at the time that he committed that offence, without any connection to the visa applicant’s present state of mind or his current attitudes towards sexual offending"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: If a conclusion reached by a decision-maker is patently irrational or illogical, can the legal reasonableness of the decision "be assessed by reference to the reasons given by the decision-maker, irrespective of whether or not the conclusion or outcome might have been reasonable if it were reached on a different basis or under different circumstances"?
Question 2: In assessing legal unreasonableness, can it be said that, "where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was"?
Question 3: Can it be said that, "although the Minister or the Tribunal is entitled to conclude that even a low risk of reoffending is unacceptable if the gravity of the harm is sufficiently serious, this does not mean that findings with respect to the risk of an applicant reoffending are beyond judicial review, including on the ground that they are without any logical or probative basis"?
Question 4: Should a finding that there is a risk that a non-citizen might reoffend be understood as a finding that the non-citizen posed a risk of reoffending that was greater, in a more than immaterial way, than the risk of the ordinary person residing in Australia committing the offence in question, otherwise, there would be no rational basis on which to make a finding that such a risk was unacceptable?
Question 5: Is the need for a probative basis for a finding of a risk of reoffending heightened in circumstances where there is a wealth of evidence supporting a contrary finding?
Question 6: Was the reasoning by which the Tribunal reached its conclusion that the risk of reoffending was “not negligible” irrational or unreasonable, "in that it was based on the nature of the second offence committed by the visa applicant and his state of mind at the time that he committed that offence, without any connection to the visa applicant’s present state of mind or his current attitudes towards sexual offending"?
Question 7: If the answer to Question 6 is 'yes', may the seriousness of past criminal conduct nevertheless "itself remain relevant and be given weight in the context of other considerations, such as the expectations of the Australian community (para 8.4), and in the exercise of the discretion under s 501(1) whether to refuse to grant the visa"?
The FCA answered those questions as follows: