Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant, Mr Aitchison, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) affirming the decision of the Minister’s delegate to cancel his visa under section 501CA of the Migration Act 1958 (Cth). The cancellation was based on Mr Aitchison’s substantial criminal record under section 501(3A) of the Act. The central issue before the court was whether the Tribunal had made a jurisdictional error by using statistics concerning recidivism in its assessment of the likelihood of Mr Aitchison engaging in further criminal or other serious conduct.

The court found that the Tribunal had misconstrued the evidence provided by Ms Carla Ferrari, a forensic psychologist, regarding the risk of recidivism. The Tribunal had incorrectly inferred that Ms Ferrari had opined that Mr Aitchison's risk of recidivism was between 13% and 30%. However, Ms Ferrari had explicitly stated that she did not work with percentages and had been referring to statistical studies to illustrate that the risk of recidivism decreases significantly with age. The Tribunal’s misunderstanding of Ms Ferrari’s evidence led to an erroneous interpretation of the statistical risk range, which was in fact applicable to a broader cohort rather than Mr Aitchison as an individual.

Consequently, the court concluded that the Tribunal’s reliance on these statistics constituted a jurisdictional error. Despite this finding, the court dismissed the application for judicial review, holding that Mr Aitchison had not demonstrated a basis for upholding the ground of error. The court also ordered Mr Aitchison to pay the Minister’s costs of and incidental to the application.