FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Minister for Immigration and Citizenship pay DVRL’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1    I am grateful to Lenehan J whose reasons I have read in draft.  I agree with those reasons and with the orders which his Honour has proposed.

Associate:

Dated:    27 May 2026

REASONS FOR JUDGMENT

STELLIOS J:

2    I agree with the reasons of Lenehan J and with his Honour’s orders.

Associate:

Dated:    27 May 2026

REASONS FOR JUDGMENT

LENEHAN J:

1.    INTRODUCTION

3    This is an appeal from a decision made by a judge of this Court (the primary judge) allowing an application for judicial review of a decision made on 6 December 2024 by the second respondent, the Administrative Review Tribunal (the Tribunal). By that decision, the Tribunal affirmed a decision of a delegate of the appellant, the Minister for Immigration and Citizenship (the Minister), under s 501(1) of the Migration Act 1958 (Cth) (the Act) to refuse the grant of a protection visa to the first respondent, DVRL, on character grounds.

4    For the reasons set out below, I consider that the appeal should be dismissed. The Minister ought to pay DVRL’s costs.

2.    BACKGROUND

5    DVRL, the visa applicant, was born in either 1955 or 1961. He is a citizen of Indonesia from the West Papuan province of Irian Jaya. DVRL’s father was an advocate for West Papuan secession, and these views were adopted by DVRL, who joined the Free Papua Movement as a child. DVRL arrived in Australia by canoe in June 1985.

6    DVRL was subsequently granted refugee status and issued a Domestic Protection (Temporary) Entry Permit. He was later issued a protection visa in January 1996. He returned to Irian Jaya in September 1996 to visit his father whom he believed to be in prison and, on his arrival, was detained and assaulted by the Indonesian military because of his political views. DVRL escaped and returned to Australia in July 1997, from which he has not since departed.

7    In 2001, DVRL was sentenced to seven years’ imprisonment after pleading guilty in the Supreme Court of Queensland to manslaughter of his de facto partner. The Court found that “[i]t was a spontaneous act” and that DVRL was “drunk at the time”. DVRL’s protection visa was subsequently cancelled by the Minister under s 501(1) of the Act in March 2003. Upon his release in June 2007, DVRL was detained in immigration detention.

8    DVRL lodged a protection visa application in December 2008 after the Minister lifted the statutory bar.

9    While in immigration detention, DVRL was subsequently convicted of common assault and fined $500 in February 2011, and again of common assault without further penalty in June 2012.  He was convicted of destroying or damaging Commonwealth property and threatening to cause harm to a Commonwealth official in August 2015.  For threatening to cause harm, he was sentenced to 12 months’ imprisonment, suspended on the condition that he “be of good behaviour for 2 years”.

10    In November 2023, the High Court relevantly held that unlawful non-citizens cannot be held in immigration detention for the purpose of their removal from Australia where there is no real prospect of their removal becoming practicable in the reasonably foreseeable future: NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137.

11    On 19 September 2024 – following various proceedings in the former Administrative Appeals Tribunal, this Court and the High Court – a delegate of the Minister (the Delegate) refused to grant a protection visa to DVRL under s 501(1) of the Act. That was nearly 16 years after he applied for the visa.

12    In this regard, the Delegate noted that: “the protection finding made for [DVRL] means that if his removal to Indonesia is not required or authorised, he could only be removed to a third country” and that “[a]s there is presently no real prospect of this, he would not be subject to indefinite detention pending his removal and would instead be released from detention”. On the same day, DVRL was released from immigration detention and unilaterally granted a newly created bridging visa for persons including (but not limited to) those within the so-called “NZYQ cohort” (the first bridging visa): see YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 419 ALR 457 at [37]-[38] as to the difficulties with the term “NZYQ cohort” in that context. By that time, DVRL had been subject to immigration detention for a period totalling 17 years. Upon his release, DVRL’s first bridging visa was subject to various conditions, including that he had to abide by a specified curfew (the curfew condition) and wear and maintain an electronic monitoring device (the electronic monitoring condition).

13    On 27 September 2024, DVRL applied for review of the Delegate’s decision with the Tribunal.

14    On 6 November 2024, the High Court held that the imposition of those curfew and electronic monitoring conditions under the relevant scheme was invalid in YBFZ. In this regard, the Court invalidated (the first of) the Commonwealth’s legislative attempts to require the Minister administering the Act to impose curfew and electronic monitoring conditions when unilaterally granting a Bridging R (Class WR) Subclass 070 visa (a BVR or bridging visa) unless the Minister was satisfied that it was not reasonably necessary to impose those conditions for the protection of any part of the Australian community. The Court declared that the relevant clauses – the former 070.612A(1)(a) and 070.612A(1)(d)) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) – were invalid for infringing Chapter III of the Constitution.

15    On 7 November 2024, DVRL was issued a new bridging visa that was not subject to those conditions (the second bridging visa).

16    However, also on 7 November 2024, the Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth) commenced, meaning a bridging visa granted after 7 November 2024 must again be subject to curfew and electronic monitoring conditions, where the Minister is satisfied that the visa holder poses a substantial risk of seriously harming the Australian community, and the imposition of those conditions is reasonably necessary, appropriate and adapted to preventing that harm (cl 070.612A, Sch 2, the Regulations).

17    On 14 November 2024, DVRL was issued a further bridging visa that was again subject to curfew and electronic monitoring conditions (the third bridging visa).

18    On 6 December 2024, the Tribunal affirmed the Delegate’s decision, concluding that DVRL’s “application for a [protection] visa should be refused”: DVRL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] ARTA 191 (the Tribunal’s reasons or Tribunal’s decision or TD). I note it was common ground on appeal that the Tribunal was bound by “Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA” (the Direction or Direction 110). I will return to that instrument in some detail later.

19    By a further amended originating application filed with this Court on 30 July 2025 (the originating application), DVRL sought to challenge the Tribunal’s decision, relying on the following grounds of review.

(1)    The Tribunal fell into jurisdictional error “in that it failed to consider, or properly consider, mandatory relevant considerations, or alternatively failed to consider and assess a clearly articulated argument or failed to properly conduct a review, further and alternatively failed to make factual findings necessary to provide an intelligible justification for its decision, and failed to consider the direct legal consequences of the decision” (ground 1 below).

(2)    The Tribunal fell into jurisdictional error “in that it failed to consider materials or arguments put forward by the applicant, or reached conclusions as to the evidence that lacked an intelligible basis and were legally unreasonable” (ground 2 below).

(3)    The Tribunal fell into jurisdictional error “in that it applied the wrong legal test and asked itself the wrong question”; the Tribunal repeatedly referred to “revoking” the cancellation decision where “[t]he correct question was whether to refuse the application under s 501(1) of the Act” (emphasis added) (ground 3 below).

20    On 1 August 2025, the primary judge allowed the originating application, ordering that the Tribunal’s decision to affirm the Delegate’s decision not to grant DVRL a protection visa be set aside and, further, that the application to the Tribunal for review of the Delegate’s decision be remitted to the Tribunal to be determined according to law: DVRL v Minister for Immigration and Citizenship [2025] FCA 876 (the primary judgment or PJ).

21    In short, the primary judge made the following findings.

(1)    With respect to ground 1 below, his Honour concluded that this ground was made out on the basis that the task required by Direction 110, and in particular para 8.1(2)(b), was to assess risk to the Australian community “in all the circumstances” (see PJ [48]). His Honour further concluded that, in the particular circumstances of this case, that task necessarily entailed “at least an attempt to evaluate the risk if the protection visa was granted as compared to the prevailing risk arising from [DVRL] being in the community on a [bridging visa]” (emphasis added) (see PJ [48]). His Honour held that the fact DVRL’s evidence was “speculative” to an extent did not absolve the Tribunal from taking that “final step in its assessment”, and that the Tribunal’s failure to complete the task required by Direction 110 constituted jurisdictional error (see PJ [48]). In this regard, his Honour concluded that “it cannot be said that there was no realistic possibility of a different outcome” (see PJ [48]).

(2)    With respect to ground 2 below, his Honour concluded that this ground could not succeed because there was no “failure on the part of the Tribunal to consider materials or arguments put forward by [DVRL], or that any conclusions were reached that lacked an intelligible basis or were legally unreasonable in a way that went beyond the [jurisdictional] error identified already in ground 1” (see PJ [60]).

(3)    With respect to ground 3 below, his Honour concluded that this ground could not succeed because, overall, there was no reason to doubt that the Tribunal correctly understood both the issues before it and the correct legal test to be applied (see PJ [69]). In this regard, his Honour concluded that the various deficiencies (identified) in the TD are best characterised “as no more than infelicities” which did not ultimately affect the Tribunal’s “evaluation or determination of anything” (see PJ [68]).

22    The Minister’s notice of appeal, filed on 4 September 2025, raises two grounds of appeal.

(1)    The primary judge erred in finding that the Tribunal was required to, but did not, take the “final step in its assessment” of the protection of the Australian community and the risk of harm to the Australian community by evaluating “the risk if the protection visa was granted as compared to the prevailing risk arising from [DVRL] being in the community on a [bridging visa]” (see PJ [48]) (ground 1 on appeal).

(2)    The primary judge erred in finding that the Tribunal needed as a matter of logical and rational reasoning to, but did not, evaluate “the risk if the protection visa was granted as compared to the prevailing risk arising from [DVRL] being in the community on a [bridging visa]” (see PJ [48]) based on a distinction between the “ordinary case” and the “NZYQ cohort” (see PJ [36]) (ground 2 on appeal).

23    DVRL’s notice of contention, filed with this Court on 22 September 2025, raises two grounds.

(1)    The Tribunal made a jurisdictional error in that its decision was legally unreasonable because, among other things, “the Tribunal did not consider, or did not explain, why the refusal to grant [DVRL] a protection visa would protect the Australian community from the possibility of his further criminal behaviour” and that “from the Tribunal's reasons, it is impossible to discern why the Tribunal thought that refusing [DVRL’s] visa would have any impact on the protection of the community when, as the Tribunal accepted, the decision of the High Court in [NZYQ] meant that [DVRL] would remain at large even if he was refused a protection visa” (ground 1 of NoC).

(2)    The primary judge ought to have upheld ground 3 below (ground 2 of NoC).

24    Finally, for completeness, it should be noted that, following the High Court’s decision in YBFZ, the High Court delivered judgment in EGH19 v Commonwealth of Australia [2026] HCA 7 on 18 March 2026 (after the hearing of this appeal). The scheme considered in EGH19 differed from the scheme considered in YBFZ in that it required the Minister to impose curfew and electronic monitoring conditions if satisfied, on the balance of probabilities, that the eligible non-citizen posed a substantial risk of committing a “serious offence” (as defined in cl 070.111 of the Regulations) and that those conditions were reasonably necessary and reasonably appropriate and adapted to address that risk. Despite those differences, the High Court held that the (second of these) schemes was invalid: insofar as cl 070.612A(1) of the Regulations authorised the imposition of conditions 8620 and 8621 (being the curfew and electronic monitoring conditions), it exceeded the power conferred by s 504 of the Act, when that power is construed subject to Chapter III of the Constitution.

3.    THE APPEAL

25    The two grounds of the Minister’s appeal were said by the Minister to reflect the possible different characterisations of the error found by the primary judge, which in turn reflects the fact that ground 1 (as argued before the primary judge) encompassed a number of alternatives.

26    DVRL’s case below might be understood as simply alleging a failure by the Tribunal to respond to, or consider, a substantial, clearly articulated argument relying upon established facts – see eg Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [24] (Gummow and Callinan JJ), 1102 [95] (Hayne J) – or to truly grapple or engage with an applicant’s case – see eg Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 598-600 [24]-[26] (Kiefel CJ, Keane, Gordon and Steward JJ). That was certainly one of the ways in which DVRL put his argument below (and before us), but it was not his preferred approach.

27    On his preferred approach, DVRL’s case was and is concerned with the obligations imposed on the Tribunal by Direction 110 itself. That is, it is the same species of error identified in LPDT v Minister for Immigration (2024) 280 CLR 321 at [34] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) – a failure to follow the process of reasoning required by the Direction. That is the basis on which I accept DVRL’s arguments, and on which I would explain the reasoning of the primary judge and why it contains no error.

28    The Minister’s grounds of appeal do not contain a strict delineation between those matters (or the other aspects of DVRL’s case on ground 1 below, to the extent they were accepted by the primary judge). Indeed, those grounds of the appeal were argued together, which is also the basis on which I will approach them in these reasons.

29    Approaching this appeal on that footing, it is my view that the Minister’s appeal cannot succeed because the Tribunal’s reasons do not disclose compliance with the (important) requirements imposed upon it by Direction 110. Accordingly, and consistently with the conclusion of the primary judge, it is my view that the Tribunal’s decision was infected with jurisdictional error and must be set aside. In my view, the Minister’s appeal should be dismissed.

30    I have structured my reasons for reaching that conclusion as follows:

(1)    the nature of the Tribunal’s task;

(2)    the proper construction of Direction 110 and what it required of the Tribunal;

(3)    the cases presented by the parties to the Tribunal; and

(4)    the reasoning process adopted by the Tribunal and how it reveals error.

4.    NATURE OF THE TRIBUNAL’S TASK

31    The Tribunal’s task was to determine whether the Delegate’s decision to refuse to grant DVRL a protection visa was the correct and preferable decision.

32    It was common ground before the Tribunal that the discretion conferred by 501(1) of the Act to refuse to grant a visa was enlivened because DVRL did not pass the character test (see ss 501(6)(a) and 501(7)(c)). It was also common ground that, in exercising that discretion, the Tribunal was required by s 499(2A) of the Act to comply with the relevant ministerial direction issued under that provision, namely Direction 110.

33    As the High Court explained in LPDT (2024) 280 CLR 321 at [33], a ministerial direction made under s 499 of the Act may, depending on its terms, impose conditions governing the “process of reasoning” to be undertaken in the exercise of a statutory power. The Court was there considering an earlier iteration of the Direction, namely “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”. But that proposition applies more generally, including to this case.

34    Direction 110, like its predecessor, identifies specific matters as “primary considerations” and requires those considerations to be treated in a particular way in the decision-making process (for example, by providing that “primary considerations should generally be given greater weight than the other considerations”). In such a case, the condition imposed by s 499(2A) by reference to Direction 110 requires the Tribunal to take into account, as mandatory considerations, the “primary considerations” in para 8 and the “other considerations” in para 9, where those considerations are relevant to the decision. Accordingly, fulfilment of the conditions imposed by Direction 110 here required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the non-citizen and, having done so, to undertake an evaluative assessment involving the weighing of those considerations in the exercise of discretion conferred by s 501(1) of the Act: LPDT (2024) 280 CLR 321, 334 [33].

35    The debate before us focused, in part, on the content of certain of those mandatory considerations, in particular on paras 8.1 (“Protection of the Australian community”) and 8.1.2 (“The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”) of Direction 110.

36    In essence, the parties disagreed as to whether, in assessing the risk posed by DVRL to the Australian community should he commit further offences or engage in other “serious conduct” (as defined in the Direction), the Tribunal was required to undertake a (comparative) analysis of what DVRL characterised as two realistic “counterfactuals”: namely his presence in the Australian community holding a protection visa, as opposed to his presence in the community holding a bridging visa (see [PJ] 24).

37    Accordingly, this appeal raises two questions: first, whether, on its proper construction, Direction 110 required the Tribunal to undertake that analysis as an aspect of taking into account the specified considerations; and second, if so, whether the Tribunal in fact did so.

5.    DIRECTION 110

5.1    Some preliminary observations about Direction 110

38    The first question requires closer analysis of the text (and structure) of Direction 110. Before dealing with the text of the relevant paragraphs in more detail, it is useful to make several preliminary observations about its broad features and the statutory context in which it operates.

39    At a high level, Part 1 of Direction 110 (entitled “Preliminary”) sets out the overarching principles that inform decision-making, while Part 2 (entitled “Making a decision”) provides operative guidance as to how the relevant discretion is to be exercised in practice.

40    Paragraph 4(1) of Direction 110 defines “decision-maker” as “a delegate of the Minister, or a body (such as the Administrative Appeals Tribunal, or the Administrative Review Tribunal upon its establishment), making a decision under section 501 or 501CA of the Act”.

41    Paragraph 5.1 of Direction 110 makes clear that its operation must be understood in light of the overarching objective of the Act, namely, “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (see s 4(1) of the Act).

42    Paragraphs 5.1(2) and 5.1(3) expressly recognise that Direction 110 applies across three statutory powers, namely the powers to make refusal, cancellation and non-revocation decisions (being the powers referred to in the definition of “decision-maker” in para 4(1)):

(2)    Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.

(3)    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e))) and the non-citizen is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501 CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

(Emphasis added.)

43    Those statutory powers are distinct and are, accordingly, treated differently by the Direction.

(1)    They involve different statutory structures.

(2)    A refusal under s 501(1) of the Act concerns whether a visa should be granted, and a cancellation under s 501(2) concerns whether a visa (that has already been granted) should be cancelled. Each of those powers is enlivened by certain conditions, but then (see the word “may”) involve the exercise of a discretion by the decision-maker. Direction 110 is concerned with the regulation of the exercise of that discretion.

(3)    In contrast, a decision under s 501CA arises only after a cancellation has occurred under the duty imposed by s 501(3A) of the Act. Such a decision concerns whether that (mandatory) cancellation should be revoked; revocation can only occur if the person makes representations (see s 501CA(4)(a)), and the decision-maker is satisfied either (i) that the person passes the character test (s 501CA(4)(b)(i)), or (ii) that there is “another reason” to revoke the original cancellation (s 501CA(4)(b)(ii)). The High Court in LPDT (2024) 280 CLR 321 described the operation of Direction 90 on that latter provision in this way at [33]:

The condition imposed by s 499(2A) by reference to Direction 90 required the Tribunal to take into account, as mandatory considerations, the primary considerations identified in para 8 and the other considerations in para 9, where those considerations were relevant to the decision. Fulfilment of the condition required the Tribunal to identify which of those mandatory considerations were relevant to the particular circumstances of the particular applicant. Then, having identified the relevant mandatory considerations, the exercise of the discretion under s 501CA(4) required the Tribunal to engage in an evaluative assessment involving the weighing of those relevant mandatory considerations with other relevant considerations.

That description likewise broadly captures the operation of Direction 110 on that provision.

(4)    The Direction responds to those different statutory contexts in different ways.

(5)    For example, in cases involving cancellation or revocation of a mandatory cancellation under ss 501(2) or 501CA of the Act, the Direction provides that decision-makers “must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community” (emphasis added) (see para 8.3(2) of the Direction).

(6)    In contrast, in cases concerning refusal under s 501(1), the Direction expressly directs attention to the following matters when assessing the risk that may be posed by the non-citizen to the Australian community: the duration and purpose of the non-citizen’s intended stay; the type of visa being sought; and, whether there are strong or compassionate reasons for granting a short stay visa (see para 8.1.2(2)(c) of the Direction).

44    The terms of Direction 110 can be seen to reflect the fact that it applies across those distinct statutory regimes. It is designedly open-textured, so as to be capable of accommodating those different decisional contexts.

45    As to its open-textured nature:

(1)    Direction 110 identifies considerations relevant to decision-making under ss 501(1), 501(2) and 501CA without suggesting that those considerations are to be applied automatically or identically, or given the same emphasis, irrespective of the statutory contexts and the specific circumstances of the individual case.

(2)    Direction 110 employs evaluative language. References to matters such as the “seriousness” of the non-citizen’s conduct (see para 8.1.1), and the “strength, nature and duration” of the non-citizen’s ties to Australia (see para 8.3), suggest that Direction 110 contemplates a series of evaluative judgments that take their colour from the particular statutory and factual circumstances.

(3)    Although Direction 110 distinguishes between primary and other considerations (and between the primary consideration in para 8.1 and the other primary considerations), it does not prescribe any arithmetical weighting or require that any consideration be outcome-determinative. In this regard, while para 7(2) directs that the primary consideration at para 8.1 (protection of the Australian community) is “generally to be given greater weight than other primary considerations” (emphasis added), Direction 110 does not state that this consideration must invariably prevail, nor that it is to be taken into account in an identical manner across refusal, cancellation and revocation decisions.

46    As to (3), in Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562, in the context of Direction 55 (a predecessor to Direction 110), Perry J observed at [39] and [83] that:

Although primary considerations are generally to be given more weight than the “other” considerations in a particular case, that general position is clearly intended to accommodate exceptions. Furthermore, where primary considerations are conflicting it is obvious that other considerations might be determinative. Again, it is not possible to say that the required evaluation is subsumed in a conclusion about whether a perceived risk of future harm is unacceptable.

…

[Her Honour went on to observe that textual features of Direction 55, amongst other things] … make it clear that those provisions are intended to provide guidance to the decision-maker as to how the balancing exercise required by Direction No 55 should be approached which the decision-maker is bound to consider, while leaving it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case. The fact that Direction No 55, aside from prescribing relevant considerations in a jurisdictional sense, provides guidance only in this sense as to the manner in which they are to be balanced is in my view a fundamental aspect of the scheme. It equips decision-makers with a width of discretion that enables them to take into account the myriad of different circumstances and different combinations of circumstances that may arise and thereby to reach a result that is fair and rational in all of the circumstances, while ensuring that account is had to those considerations that the legislator has identified as crucial to a lawful decision.

(Emphasis added in bold.)

5.2    Some exercises of power will result in the non-citizen being in the Australian community

47    That (designed) flexibility in the application of Direction 110 also accommodates differences in the consequences produced by the exercises of those powers.

48    In at least some cases – and in more cases since NZYQ was decided – the exercise of the powers conferred by ss 501(1), 501(2) and 501CA of the Act may result in a non-citizen remaining in the Australian community, notwithstanding the fact that the relevant power was exercised “unfavourably” from the perspective of the non-citizen. Direction 110 is sufficiently open-textured to accommodate such outcomes. I explain that observation further below.

49    Section 501F of the Act is relevantly in the following terms:

501F  Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas

(1)    This section applies if the Minister makes a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.

(2)    If:

(a)    the person has made another visa application that has neither been granted nor refused; and

(b)    the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to refuse that other application.

(3)    If:

(a)    the person holds another visa; and

(b)    that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;

the Minister is taken to have decided to cancel that other visa.

(Emphasis added).

50    In what I will describe as the “usual case”, a decision to refuse or cancel a visa will result in the refusal of any other extant visa application, and the cancellation of any other visa. The same is true of a refusal to revoke a mandatory cancellation under s 501CA(4). In such a case the initial refusal under s 501(3A) continues to operate together with the consequential effects provided for by s 501F (compare with the position that applies following revocation under s 501F(4), read with s 501CA(5)). However, the emphasised words in s 501F reveal that there are exceptions to that usual case, and that exceptions exist even apart from NZYQ.

51    One such exception arises where the other visa or visa application is, or concerns, a protection visa. Another exception applies to visas of a kind prescribed by the Regulations. Although the Regulations do not presently appear to have specified any such class of visa, the statutory scheme proceeds on the footing that they may do so.

52    Accordingly, and even apart from NZYQ, the Direction operates in a statutory environment in which a person may remain in the Australian community following visa refusal or cancellation (for periods which may be longer and shorter in duration). The Direction is to be understood in that context: see in that regard, Mizen v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 310 FCR 421, 432 [64] (the Court) and see also s 46(1)(b) of the Acts Interpretation Act 1901 (Cth).

53    The primary judge was undoubtedly correct to observe that the Direction does not expressly address that situation: “Direction 110 has plainly not been framed in a way that contemplates the NZYQ cohort” (see PJ [35]). But I would not attribute undue significance to that fact. As I have said, the text of the Direction is designedly open-textured, so as to accommodate those (and other) ways in which the statutory scheme may operate in particular cases. That was the point, with respect, correctly made by Perry J in Lesianawai.

54    And, once it is accepted that the Direction proceeds on the basis that a person may remain in the Australian community regardless of whether a visa is refused (or cancelled), it necessarily follows that the evaluative assessment of risk may require attention to more than one scenario. In those circumstances, the decision-maker’s task becomes one of assessing the non-citizen’s risk profile by reference to the statutory outcomes that are realistically available. I will return to that further below.

5.3    The highest priority of the Australian Government

55    The Direction makes clear that the safety of the Australian community is the highest priority of the Australian Government and that decision-makers, including the Tribunal, must approach the exercise of powers under ss 501 (and 501CA of the Act) with that principle firmly in mind.

56    First, in Part 1 (see para 5.2), the Direction provides that: “The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA”. One of those “principles” appears in para 5.2(2), which provides that: “The safety of the Australian Community is the highest priority of the Australian Government”.

57    Second, in Part 2, when decision-makers turn to the “primary consideration” at para 8.1 (which, according to para 7(2), ought “generally to be given greater weight than other primary considerations”), decision-makers are reminded that: “When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government” (see para 8.1(1)). The following sentence – “To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens” – makes plain the content of those “safety” concerns (see para 8.1(1)).

58    As the Minister observed, that statement is immediately followed by these words (see para 8.1(1)):

In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

59    In particular cases, as the Minister submitted, that may direct the decision-maker’s attention to statutory possibilities such as revisiting a protection finding or removing the non-citizen to a third country. However, as I explain below, the Tribunal did not consider either of those possibilities to be realistic in DVRL’s case, at least in the reasonably foreseeable future. That assessment brought into sharp relief how the concern identified by the Australian Government as its “highest priority” (namely, the safety of the Australian community) was to be addressed in circumstances where, on any view, DVRL would remain in the Australian community.

5.4    The specific circumstances of the individual case

60    It is also important to observe that Direction 110 expressly states that the discretion conferred by ss 501 (and 501CA of the Act) must be exercised by reference to the specific circumstances of the individual case. Indeed (see again the point made in Lesianawai), that requirement is a further aspect of the way in which the Direction’s drafting is designed to accommodate its application across a number of different statutory and factual contexts.

61    First, in Part 1, the Direction provides that: “Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion” (emphasis added) (see para 5.1(2) and see similarly para 5.1(3)).

62    Second, Direction 110 repeatedly emphasises that decision-making under ss 501 and 501CA of the Act is inherently individualised. Neither the primary considerations nor the other considerations apply automatically or uniformly. Rather, the relevance of a consideration and the weight to be attributed to it depend on the facts and circumstances of the particular case.

(1)    Paragraph 5.2 makes clear that the “factors … that must be considered … are identified in Part 2” and are only required to be considered “to the extent relevant in the particular case”: see also LPDT (2024) 280 CLR 321, 334 [33].

(2)    That case-specific focus is reinforced in para 5.2(7) which provides (as a principle) that decision-makers must take into account considerations “relevant to the individual case”.

(3)    Paragraph 6 similarly directs that the considerations identified in paras 8 and 9 must be taken into account “where relevant to the decision”.

(4)    Paragraph 9(1) reiterates that approach in relation to “other considerations” which “must also be taken into account, where relevant” (emphasis added).

63    Third, and of more particular relevance for present purposes, para 8.1.2 of Direction 110 embeds such an approach within the particular aspects of the Direction in issue here.

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).

c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

64    As the text makes clear, the decision-maker must have regard to: the nature of the harm should the non-citizen re-offend (see para 8.1.2(2)(a)); information and evidence concerning the non-citizen’s risk of re-offending (see para 8.1.2(2)(b)(i)); evidence of rehabilitation achieved by the time of the decision (see para 8.1.2(2)(b)(ii)); and whether the risk of harm may be affected by the type of visa being applied for (see para 8.1.2(2)(c)) (emphasis added). Read as a whole, para 8.1.2(2) confirms that risk is to be evaluated cumulatively and prospectively, grounded in evidence dealing with the particular circumstances.

65    Paragraph 8.1.2(2)(b) also specifically requires that the material referred to in (i) and (ii) be “tak[en] into account” in assessing the non-citizen’s likelihood of future (criminal or other serious) conduct.

5.5    Assessment of risk

66    As I have said, para 8.1.2 was one of the critical provisions to which much argument was directed in the appeal. It is an aspect of a primary consideration – “protection of the Australian community from criminal or other serious conduct”, a consideration which has a number of distinct components.

67    One component (see paras 8.1(2)(a) and 8.1.1) is directed to the past, namely the “nature and seriousness of the non-citizen's conduct to date” (emphasis added). As explained in Mizen (2025) 310 FCR 421 at [34] and [71] (Banks-Smith, Feutrill and Vandongen JJ), the corresponding exercise under the equivalent provisions of Direction 99 focussed on the non-citizen’s “past conduct” (emphasis in original) and was “backwards” looking. That backwards-looking inquiry encompasses a range of matters for consideration. Some are in part or in whole evaluative: see eg paras 8.1.1(a), (b), (d) and (f). Others are more objective in character: see eg paras 8.1.1(c), (e), (g), (h) and (i).

68    By contrast, the aspect of the primary consideration in issue here (“risk to the Australian community, should the non-citizen commit further offences or engage' in other serious conduct”) looks to the future and is largely evaluative in nature. In Mizen, at [71]-[72], the corresponding exercise under Direction 99 was described as both “forward-looking” and “predictive”. Similar observations apply to para 8.1.2(2) of Direction 110, which I have extracted at paragraph 63 above.

69    That predictive exercise has a policy overlay, requiring attention to the views of the Australian Government: see, in a different context, FYBR v Minister for Home Affairs (2019) 272 FCR 454, 471-472 [66]-[67] (Charlesworth J), 476 [91] (Stewart J). In that regard, decision-makers are told at para 8.1.2(1) of Direction 110 that:

In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some 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 may be unacceptable.

70    An assessment of “risk” therefore involves a predictive (and necessarily policy-informed) judgment, directed to the future. It requires a “cumulative” assessment (see eg Mizen (2025) 310 FCR 421 at [36] and [72]) of the following elements:

(1)    the likelihood of particular events occurring in the future (namely, the non-citizen engaging in further criminal or other serious conduct);

(2)    the nature of the consequences (namely, the harm to individuals or the Australian community) should those events occur; and

(3)    in a case such as the present, where refusal is being considered, whether the “risk of harm” may be affected by the matters identified in para 8.1.2(2)(c).

71    It is also necessary to note that the text of the Direction is agnostic as to the ultimate visa outcome. As DVRL submitted at the hearing, textually, the “risk” to the Australian community referred to in paras 8.1(2) and 8.1.2(2) is not “limited to” the scenario in which the non-citizen is granted a permanent visa. Rather, consistent with the principle that the “safety of the Australian community is the highest priority of the Australian Government”, those paras are properly construed as requiring the decision-maker to have regard to any “risk that may be posed by the non-citizen to the Australian community” – regardless of whether that flows from a “positive” or a “negative” outcome from the perspective of the non-citizen. That is the risk that must be “assess[ed]” (under para 8.1.2(2)) and considered (under para 8.1(2)).

72    It is inherently unlikely that the Minister, in making the Direction, intended decision-makers to simply ignore one half of the range of realistically possible outcomes, particularly given the great priority accorded to community safety and the ambulatory design. Of course, as the primary judge observed at [26], ordinarily that will not involve any particular complexity:

The applicant submits, and the Minister does not apparently disagree, that, in most cases, the assessment of whether a non-citizen’s risk of harm to the Australian community – particularly with respect to the likelihood they will do harm – is relatively straightforward. That is because the consequence of the refusal, cancellation, or non-revocation of cancellation of a visa will be that the non-citizen will not be able to remain in or enter the Australian community. The unsuccessful visa applicant (or former visa holder) who is already in Australia will ordinarily be in immigration detention until removal takes place. The assessment thus only requires a decision-maker to consider the likelihood and nature of harm if the visa is granted or reinstated, as the consequence of continued refusal or cancellation will be the person’s removal from the community and the associated removal of the risk of harm.

(Emphasis added.)

73    The reason that is so flows, in part, from the operation of s 501F of the Act. As noted above, that provision will ordinarily (though not always) mean that a refusal or cancellation decision will result in the deemed cancellation of any other visa and the deemed refusal of any extant visa application. In that event, the person will hold no visa and will be an unlawful non-citizen, liable to immigration detention under s 189 until one of the events specified in s 196 occurs. In those circumstances, and being in that sense removed from the broader community, the risk associated with that decisional outcome may ordinarily be put to one side: compare with eg CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192 at [58] (Owens J) and JMNR v Minister for Immigration and Citizenship [2026] FCA 50 at [124] (Colvin J).

74    The position is quite different where (either because of the exceptions in s 501F or because of the constitutional constraints discerned in NZYQ) a person cannot be “segregated” from the broader community in that way. In such a case, each of the available decisional outcomes involves some degree of risk to the Australian community. It is in those circumstances that Direction 110 requires that such risk be “assess[ed]”. Its terms and designedly open-textured nature accommodate those comparatively unusual scenarios.

75    I should add, to address one possible textual point that was not advanced by the Minister in argument, that para 8.1.2(2)(c) does expressly require consideration of whether the “risk of harm” may be affected by matters including “the type of visa being applied for” (emphasis added), but does not refer to the possibility that that risk may be affected by the type of visa a person continues to hold if refused a visa.

76    I would not draw some negative implication from the omission of any express reference to those matters. As is apparent from the adjacent reference to “the duration … of the non-citizen’s intended stay”, that aspect of the Direction has in mind the kinds of distinctions drawn in ss 29 and 30 of the Act (eg between permanent and temporary visas and whether the visa confers a right of re-entry), which will determine how long or how often the Australian community is “exposed” to any relevant risk (see also the reference to the possibility of granting a “short stay visa”). It has in mind the usual case in which refusal will mean that the person will not be able to remain in or enter the Australian community and that an unfavourable exercise of discretion will result in no such exposure at all. I would not conclude from that (readily explicable) textual feature that the ambulatory language of the Direction is to be read in a narrow way that potentially imperils the safety of the Australian community by exposing it to unassessed risk, where both outcomes of the decision pose such a risk.

77    It was suggested in the Minister’s written submissions that this conclusion may be in tension with Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [71] (Rangiah J, North J agreeing). To the extent that submission is maintained, it is wrong. Moana concerned a decision made personally by the Minister, who was not bound by any direction made under s 499 of the Act: see again para 4(1) of the Direction which defines a decision-maker as “a delegate of the Minister, or a body (such as the Administrative Appeals Tribunal, or the Administrative Review Tribunal upon its establishment), making a decision under section 501 or 501CA of the Act”. It was in that context that Rangiah J observed at [71] that:

It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.

78    It was that reasoning that led his Honour to conclude that “the Minister is not bound to conduct an evaluation of the likelihood of the visa holder engaging in future conduct that may cause harm when exercising the discretion under s 501(2)” (see Moana, 383 [74]).

79    The present case is different. Direction 110 does require the evaluation of risk by the Tribunal in a particular way (where that matter is relevant): see again para 8.1.2(2)(b). While that evaluative framework is sufficiently flexible to accommodate differing factual and statutory contexts, its purpose is clear. In particular, the decision-maker is required to turn their mind to each of the matters specified in para 8.1.2(2) in assessing the relevant risk. That requirement starkly reveals the difficulty in the Tribunal’s reasoning in the present case.

80    As I explain below, the Tribunal expressly refused to undertake the analysis required by the Direction, notwithstanding the fact that the case advanced by DVRL made such an analysis centrally relevant. As such, the Tribunal failed to comply with the Direction and thus the statutory command imposed by s 499(2A).

81    My analysis on those matters may differ somewhat from that of the primary judge who observed at paragraph [35] that:

Where a visa applicant or former visa holder will remain in the Australian community regardless of the visa decision, and depending on the circumstances, including the case that was advanced by a visa applicant (or by a former visa holder), there may be a need for an evaluation of competing risks and mitigations of the risks which flow from their presence in the community were they to be granted a particular visa, compared to the risk which flows from their presence were they not. However, I decline to elevate this to the status of a separately identified and specific obligation imposed upon the Tribunal by Direction 110 to conduct a comparison of competing risks in the manner of the counterfactuals posited by the applicant. Such an argument would be difficult to maintain, given Direction 110 has plainly not been framed in a way that contemplates the NZYQ cohort. Rather, in applying Direction 110 [8.1(2)(b)] to this case, the Tribunal had an obligation here to make an assessment of the risk posed if the applicant remained on a BVR and if he was granted a protection visa, because of the evidence the applicant adduced and the arguments he made: see Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [64]-[66] (Bromwich and Wheelahan JJ, Logan J dissenting).

(Emphasis added in bold.)

82    For the reasons already given, it is my view that Direction 110 does impose a “specific obligation” to assess the risks associated with each available outcome.

83    It is true that the assessment of risk associated with refusal (relevantly in the present context) will ordinarily be straightforward. In the usual case, refusal will result in the person’s removal from the broader community, with the consequence that any risk to the Australian community will be negligible (and, correspondingly, that a greater risk will arise if the person is granted a permanent visa).

84    And, as I have said, the Direction requires regard to be had to the primary considerations only to the extent that they are relevant to the decision: see again eg paras 5.2 and 6. As such, in the usual case, risk will ordinarily lie only on one side of the decisional balance and so the (negligible) risks associated with refusal will be of little or no moment (save that they might be said to put the risks of a grant of a visa into sharper relief).

85    None of that alters the nature of the obligation imposed by the Direction in cases such as the present where there is a level of risk on either decisional outcome. It may be that the primary judge ultimately came to a broadly similar view at paragraph [48]:

The task required by Direction 110 [8.1(2)(b)] was to assess risk to the Australian community in all the circumstances. In the particular circumstances of this case, that did require at least an attempt to evaluate the risk if the protection visa was granted as compared to the prevailing risk arising from the applicant being in the community on a BVR. That the evidence relied upon by the applicant as to how the protection visa would affect the risk he posed to the community was “speculative” to an extent did not discharge the Tribunal from taking this final step in its assessment. The task of risk assessment required by Direction [8.1(2)(b)] was thus not completed by reference to the case that the applicant advanced in relation to it.

86    To the extent that our reasoning diverges, it seems that his Honour may have regarded the obligation as arising only where the non-citizen advances a positive case that the risk varies between the decisional outcomes. That, however, is not what the Direction says.

87    The Tribunal is obliged to do its best to undertake the assessment of risk to the Australian community as required by the Direction. In doing so, it may be obliged to consider substantial issues raised by the material before it, even where those issues are not the subject of submissions by the parties: see Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47, 65 [66] (Bromwich and Wheelahan JJ); see also PJ [35].

88    Where a person relevantly affected by NZYQ does not advance a positive case that the risk to the community would be reduced if a visa were granted – and where it appears from the material before the Tribunal that they will be in the Australian community for some time regardless of the decision – it may well be the case that the Tribunal is simply unable to reach a state of satisfaction that either decisional outcome makes much difference in terms of risk: see eg Plaintiff M64/2015 v Minister of Immigration and Border Protection (2015) 258 CLR 173, 196-197 [64] (Gageler J). But that conclusion may in itself be significant: it may tend to suggest that those matters bearing upon risk are of lesser weight, or even “neutral”, for the purposes of weighing the various evaluative factors required by the Direction. In any event, there is no doubt that DVRL advanced a case that granting him a protection visa would reduce the risk to the Australian community, so any differences between my views and those of the primary judge are most likely immaterial here.

5.6    Reflections on Mizen v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 310 FCR 421

89    Before leaving this topic, I should briefly mention the Full Court’s decision in Mizen (2025) 310 FCR 421, which examined the proper construction of the concept of “risk” in para 8.1.2(2)(b) of Direction 99 (the predecessor to Direction 110).

90    In Mizen, the Full Court observed at paragraphs [73]-[76] that:

The purpose of Direction 99 is to guide the making of a decision under s 501(1), s 501(2) and s 501CA(4), which decision will necessarily be made in circumstances in which a non-citizen will not have, but is seeking a visa, or where a non-citizen is seeking to resist the cancellation of a previously granted visa. Accordingly, it is abundantly clear that the considerations in para 8.1.2(2) require decision-makers to evaluate the future risk to the Australian community should a non-citizen commit further offences or engage in other serious conduct in the event they are granted a visa, or if their previously granted visa is not cancelled. In other words, those considerations require an assessment to be made about the risk to the Australian community that may flow from the grant of a visa.

It would make little sense if para 8.1.2(2)(b) of Direction 99 required decision-makers to have regard to the risk to the Australian community were a visa not to be granted.

Accordingly, in relation to the consideration in para 8.1.2(2)(b) with which this appeal is concerned, on the proper construction of that paragraph, decision-makers are required to have regard to the likelihood of a “non-citizen engaging in further criminal or other serious conduct” if they were to be granted a visa, or if their previously granted visa were not to be cancelled.

At this point, it is important to recall that the term “visa” is used in the Act to describe the permission that is granted to a non-citizen to: either or both (a) travel to and enter Australia; and (b) remain in Australia: s 5 and s 29 of the Act. According to Note 2 in para 4 of Direction 99, which appears under the heading “Interpretation”, the term “visa” has the same meaning as it has in the Act. Therefore, an alternative, and equally correct, way in which to describe the task that a decision-maker is required to undertake when having regard to the consideration in para 8.1.2(2)(b), is that the decision-maker is to have regard to the likelihood of a non-citizen engaging in further criminal or other serious conduct if the non-citizen were to be granted permission to travel to and enter Australia or to remain in Australia.

(Emphasis in original.)

91    At an impressionistic level, Mizen might be thought to tell against the contention that Direction 110 required the Tribunal to undertake the comparative or counterfactual analysis advanced in this case. However, as the primary judge explained at paragraphs [31]-[32]:

The reasoning in [74] of Mizen is essentially one of logical reasoning of the kind that was of universal application before NZYQ was decided, and remains applicable outside the NZYQ cohort. The Full Court placed significant emphasis on the fact that the Migration Act generally and Direction 99 specifically are concerned with granting permission to non-citizens to enter or remain in the Australian community. It was noted at [69], for example, that [8.1(1)] of Direction 99 provides that decision-makers are to have regard to the fact that entering or remaining in Australian is a “privilege” conferred on non-citizens, “in the expectation that they … will not cause or threaten harm to individuals or the Australian community” (Direction 110 is relevantly identical). At [76] it was also noted that the term “visa” in the Act describes the “permission” granted to non-citizens to enter or remain in Australia…

The Full Court’s conclusions as to the proper construction of [8.1.2(2)] must be read in that context. It was entirely apposite in that case, where the non-citizen would not be permitted to remain in the community if his visa application was not ultimately successful. It is of little assistance however, in considering the application of [8.1.2(2)] to non-citizens in the NZYQ cohort, who are in the distinctive position in that they will remain in the community regardless of whether the visa is granted.

92    As I have said, even before NZYQ, the Act contemplated at least some circumstances in which a person whose visa was refused would nonetheless remain in the community (and this bears upon the proper construction of Direction 110). Subject to that qualification, I otherwise agree with his Honour’s explanation of why Mizen does not govern the outcome in the present matter. The Minister (quite fairly and properly) did not suggest otherwise. As his Honour went on to observe at paragraph [34]:

[T]he applicant, as a member of the [NZYQ] cohort, would remain in the community whether his protection visa was granted or refused. That in turn means that Mizen reasoning, which holds that the Tribunal is not required to compare the risk which may flow from the grant of the visa to the risk posed from the non-citizen if they are not granted permission to enter or remain in Australia, does not apply to the present applicant, or to those in a like position.

93    The Minister did take issue with aspects of the primary judge’s reasoning, submitting that his Honour may have misunderstood that DVRL would not necessarily “remain in Australia”. I return to that issue at [159]-[171] below. But the Minister did not contend that Mizen stood in the path of any proposition advanced by DVRL, such that we would need to conclude that it was plainly wrong to accept those arguments.

6.    THE CASE BEFORE THE TRIBUNAL

94    How, then, did the Tribunal approach those matters? To answer that, it is necessary to say something further about the manner in which the parties conducted the case before the Tribunal.

6.1    Common ground: NZYQ applied

95    There was considerable common ground between the parties before the Tribunal as to the effect of the High Court’s decision in NZYQ and, in particular, how that decision shaped the factual and legal context in which the Tribunal was required to assess risk.

96    First, although DVRL’s SOFIC of 30 October 2024 (A SOFIC) did not expressly refer to NZYQ, DVRL consistently advanced his case on the express footing that refusal of a protection visa would not alter the fundamental fact that he would remain living in the Australian community. That premise is stated repeatedly and in unqualified terms.

97    By way of example:

(1)    Paragraph [100] stated that, “regardless of whether his protection visa is refused, he will remain in the community as a lawful non-citizen”.

(2)    Paragraph [103] stated that, “the applicant will remain in Australia regardless of whether his visa [is] refused”.

(3)    Paragraph [108] framed the weight to be given to community expectations by reference to the fact that “the applicant will remain in the community regardless of the decision”.

(4)    Paragraph [111] stated that the legal consequence of refusal is that the applicant “will remain in the community as the holder of a [bridging visa]”.

(5)    Paragraph [136] stated that, because “the applicant will remain in Australia regardless of [the refusal]”, the relevant consideration (namely, extents of impediment if removed) attracts “neutral weight”.

98    Second, the Minister’s SOFIC of 12 November 2024 (M SOFIC) explicitly referred to the High Court’s ruling in NZYQ, explaining DVRL’s circumstances by reference to it. At paragraph [47], the Minister said this:

The respondent submits that the applicant is currently entitled to significant support through the Department’s Status Resolution Support Services (SRSS) program. In January 2024, the Department introduced enhanced SRSS for individuals affected by the High Court ruling in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023]. This support is needs based and tailored to an individuals’ circumstance … The Government is currently funding the applicant’s access to rehabilitation supports, including therapeutic programs. If the applicant was granted a Protection visa, these services would cease.

99    Third, the Minister’s SOFIC accepted that refusal of a protection visa does not, in DVRL’s case, lead to removal or segregation from the Australian community via immigration detention. That is necessarily implicit in what appears at [47], and in the discussion of the expectations of the Australian community at [64], of the legal consequences of the decision at [67]-[72], and of the extent of impediments if removed at [73].

100    Fourth, in his Reply of 15 November 2024 (A SOFIC (Reply)), DVRL similarly proceeded on the premise that, following the High Court’s ruling in NZYQ, he will continue to reside in the Australian community irrespective of the Tribunal’s decision. For example, paragraphs [3] and [17] of A SOFIC (Reply) stated:

This case is somewhat unusual. The applicant has been residing in the community since 19 September 2024 on a Bridging Visa R (BVR). Based on the present information, regardless of the Tribunal's determination, the applicant will continue to reside in the Australian community.

…

In considering the protection of the Australian community, the Applicant contends that this should not be considered in the abstract. The evidence establishes that regardless of the Tribunal’s decision, the Applicant will remain in the Australian community. Therefore, in order for the Tribunal to make the correct and preferable decision, the Tribunal needs to determine whether refusing the Applicant’s protection visa and keeping him on his current BVR better meets the protection of the Australian community.

(Emphasis added.)

101    Thus, the material before the Tribunal proceeded on the following propositions.

(1)    Following the High Court’s ruling in NZYQ, unlawful non-citizens cannot be held in immigration detention where there is no real prospect of their removal becoming practicable in the reasonably foreseeable future.

(2)    Where there is no real prospect of their removal becoming practicable in the reasonably foreseeable future, the non-citizen must be released into the Australian community.

(3)    DVRL fell squarely within the group of people relevantly affected by the High Court’s ruling in NZYQ because he was subject to protection findings, could not be removed to Indonesia, and faced no reasonably foreseeable third-country removal.

(4)    Accordingly, refusal of a protection visa would not result in removal or immigration detention, but in his continued residence in the Australian community on a bridging visa.

(5)    Against that common background, both DVRL and the Minister advanced submissions squarely directed to matters the Tribunal was required to evaluate under Direction 110, including the risk posed to the Australian community (and, in turn, the comparative services and supports available to DVRL depending on whether he remained in the Australian community on a bridging visa or a protection visa) and the legal consequences of the Tribunal’s decision.

102    It was in those “somewhat unusual” circumstances (see again A SOFIC (Reply) [3]) that the submissions and evidentiary materials regarding risk to the Australian community fell to be considered by the Tribunal.

6.2    What was the information and evidence on the risk of DVRL re-offending?

103    I will now turn, more specifically, to the competing cases that were advanced on the question of “the risk that may be posed by the non-citizen to the Australian community”. It was that material which provided the “information and evidence on the risk of the non-citizen re-offending” which the Tribunal was required to take into account: see para 8.1.2(2)(b).

6.2.1    DVRL’s case before the Tribunal

104    Before the Tribunal, DVRL contended that granting him a protection visa would better serve and protect the Australian community (cf refusing to grant him a protection visa and thereby having him remain in the community on a bridging visa) because, chiefly, a protection visa afforded certain benefits which would ultimately reduce his risk of re-offending (see eg A SOFIC [92]-[94]), while “the conditions and nature of the [bridging visa] actually increase [his] risk features” (see eg A SOFIC (Reply) [18], [28]-[30]).

105    That involved two distinct ideas: the protective benefits of a protection visa and the detrimental effects of the bridging visa.

106    Notably, he specifically referred to the following “benefits” which flow from a protection visa, under the heading “Protection of the Australian community” (and subheading “Granting a protection visa will reduce the risk of re-offending”) in his SOFIC.

(1)    At paragraph [94] of A SOFIC, DVRL noted that permanent residency will “address [his] criminogenic needs including reduced financial stress and improved financial stability, access to housing, increased opportunities for integration with the community and improved access to medical treatment”.

(2)    At paragraph [95] of A SOFIC, DVRL developed that submission by reference to the evidence, relying on a psychological report prepared by Mr Champion (dated 16 April 2014), which was before the Tribunal. Mr Champion there stated:

In relation to what factors which might assist his reintegration, the first would be to find him stable accommodation (perhaps supported accommodation in the first instance) and ongoing medical support to assist him (if he accepts the assistance) to maintain a reasonable level of health. He would benefit from ongoing monitoring in terms of substance use, with AOD program involvement in the event of significant relapse. He would benefit from involvement with one of the Churches. He could also be assisted by monitoring by mental health professionals (if he would co-operate with this) to monitor his mental health and any deterioration in his cognitive functioning (dementia or other health related effects). He would benefit from involvement in some form of useful occupation or activity, which might include involvement with art production or sale.

107    On the other side of the coin, at paragraph [96] of A SOFIC, DVRL contrasted the advantages of permanent residency with the disadvantages of remaining a bridging visa holder, detailing the difficulties he was experiencing (and would continue to experience were a protection visa not to be granted to him): “significant financial distress, a high risk of homelessness, social isolation and limited access to health benefits”.

108    Further information was put before the Tribunal as to those issues in connection with his contentions on other considerations. In particular, under the heading “Legal consequences of the decision”, DVRL made the following submissions.

(1)    At paragraphs [112]-[113] of A SOFIC, DVRL explained to the Tribunal that he was subject to 22 conditions including a curfew between 10pm and 6am, the wearing of an electronic monitoring device, daily reporting and restrictions on employment. Although the curfew and electronic monitoring conditions ceased on 6 November 2024, following delivery of the High Court’s decision in YBFZ, those conditions were reinstated on 14 November 2024.

(2)    At paragraphs [114]-[118] of A SOFIC, DVRL submitted that these conditions, which were “broadly expressed” and occasionally “unclear”, could lead to unintentional breaches, thereby subjecting him to the risk of being imprisoned “for doing things that people who are not on [bridging visas] can do with impunity”. Further, should his bridging visa cease (under cl 070.511 of Schedule 2 of the Regulations, which provides that a bridging visa ceases when the Minister gives the visa holder notification of a breach of condition), he would become disentitled “to the limited benefits he receives in connection with the [bridging visa]”.

(3)    At paragraphs [119]-[120] of A SOFIC, DVRL contended that those conditions – conditions to which he would not be subject were he to be granted a protection visa – contributed “to a sense of insecurity of status and sense of ‘sense of perpetual surveillance’ … [which, in turn, ultimately contribute] to further deterioration of [his] wellbeing”, especially “[c]onsidering the detrimental impact that 17 years of indefinite immigration detention has had on [his] mental health”.

(4)    As regards the issue of support, at paragraphs [121]-[135] of A SOFIC, DVRL submitted that a bridging visa also significantly limited his “entitlement to the services and supports that he would be entitled to as a permanent resident”.

109    DVRL developed that last submission by reference to various government policies, as well as an expert report by Mx Sid Pettit, a senior case worker / social worker, dated 15 November 2024. That report was also before the Tribunal. Mx Pettit also gave oral evidence.

(1)    Although he was entitled to work, DVRL submitted that it was unlikely he would be able to find employment on account of inter alia his “long period out of the community as well as the stigma and practical impediments of his visa status and conditions” (see A SOFIC [122]). That was supported by the observations of Mx Pettit who said this at paragraph [13] of their report:

“noting [the applicant’s] age, health conditions, lack of employment history and qualifications, and the Occupational Therapy Report by Alice Fung Luong on 29 February 2024, it is unlikely [he] will be able to secure employment to meet his basic needs such as housing, groceries, and medical treatment”.

(2)    DVRL was receiving a payment of $680 per fortnight through the Status Resolution Support Services (SRSS) scheme – a scheme that “provides short-term support to people while they are engaging with the Department to resolve their immigration status” (see A SOFIC [123]). As the recipient of SRSS, “he is not entitled to other income support such as Special Benefit or Rent Assistance” (see A SOFIC [125]).

(3)    However, were he to be granted a permanent visa, he would be eligible for JobSeeker payments of up to $849.50 (up to $169.50 more) or Aged Pension payments up to $1,144.40 (up to $464.40 more) per fortnight (see A SOFIC [132]).

(4)    His medical expenses were around $265 per week, leaving him around $75 per week to buy food and other essential items (see A SOFIC [128]). He had already gone without critical medication “[i]n the short time since he has been released from detention” because of his inability to afford it on the SRSS (see A SOFIC [129]). Although he had access to Medicare while on a bridging visa, he was not eligible for a Health Care Card or a Pensioner Concession. In contrast, as a permanent visa holder, he would be eligible for a Health Care Card or a Pensioner Concession Card, cards which would reduce the cost of his medication co-payments under the Pharmaceutical Benefits Scheme from $31.20 to $7.70 per prescription (see A SOFIC [126]-[127], [133]).

(5)    While DVRL lived in temporary accommodation provided under the SRSS scheme, he was uncertain how long he would be able to live there. He also noted that “when [his] accommodation arrangements under SRSS end, [he] will be homeless without any access to social housing and no ability to pay rent” (see A SOFIC [130]). That was specifically identified as a matter that “would significantly increase the risk of the applicant reoffending” (see A SOFIC [130]). By contrast, a permanent visa would ensure more stability in that respect, as he would become eligible for social housing through the NSW Government (see A SOFIC [134]).

(6)    With respect to the SRSS scheme, those services and supports for which the applicant was eligible would eventually cease, noting that DVRL was released from immigration detention on 19 September 2024 and SRSS supports are only available for a maximum of 12 months. As Mx Pettitt concluded, “Without access to a [permanent visa] once SRSS supports ends in September 2025, [DVRL] will be at immediate risk of being unable to access affordable housing, healthcare, and financial support”.

(7)    Altogether, being granted a protection visa was argued to have the following benefits: reducing the costs of his medication; increasing the level of income support he received (which, under a bridging visa, left him with $75 per week to buy food and other essential items); increasing his chances of securing accessible and affordable accommodation; and (as Mx Pettit concluded), promoting “access to long term sustainable and ongoing eligibility to low cost/free community service supports”.

110    Ultimately, DVRL submitted that the protection of the Australian community and the legal consequences of the decision weighed heavily against exercising the discretion to refuse to grant a protection visa and that, on this basis, the Delegate’s decision should be set aside and substituted with a decision not to refuse to grant a protection visa under s 501(1) of the Act.

6.2.2    The Minister’s case before the Tribunal

111    In his SOFIC dated 12 November 2024, the Minister at [47]-[49] dealt with DVRL’s case on risk. Notably, the Minister did not contend that the Tribunal was unable to have regard to whether the “protection of the Australian community is better served by the applicant being granted a protection visa”. The Minister rather dealt with that case head on and on its merits.

112    In that regard, the Minister made the following submissions: that the applicant, as the holder of a bridging visa, has available to him various social services provided by the SRSS scheme; that the SRSS scheme “will assist the applicant reintegrate into the Australian community … in functionally equivalent ways to if he held a protection visa” (emphasis added); and that the conditions that could be imposed on a bridging visa, including curfew and electronic monitoring conditions, operate in effect to protect the Australian community from the applicant’s risk of re-offending.

113    The qualification “functionally equivalent” was not further explained.

114    Importantly, however, the Minister accepted that at least some benefits associated with the grant of a protection visa would not be available on a bridging visa, acknowledging that “refusal of the applicant’s protection visa will have some impact on the support that the applicant can access” (emphasis added), albeit noting that “many mainstream support services are already being accessed” (see M SOFIC [71]). Of course, DVRL’s case was not that there were no support services available on a bridging visa; his case was that those available on a protection visa were comparatively superior and more secure.

115    In any event, it was common ground between the parties that there were material differences in terms of the support available to DVRL depending on whether a protection visa was granted or refused. Otherwise, it was the Minister’s submission that: “In combination with the visa conditions attached to the applicant’s [bridging visa] … the enhanced SRSS program provides reintegration support to the applicant while allowing for appropriate mitigation of risk to the community in the form of the conditions” (see M SOFIC [48]).

6.2.3    DVRL’s submissions in reply before the Tribunal

116    Under the heading “Protection of the Australian Community” in his Reply, DVRL made the following submissions.

(1)    At paragraphs [19]-[25] of A SOFIC (Reply), DVRL contended that there is no “practical” benefit to the curfew condition. He submitted that, whilst the condition may appear “at first blush” to serve the protection of the Australian community, the condition is ultimately “ill-fitting for the risk profile that [he] presents with”. He submitted that “his offending has been of a spontaneous and responsive nature that arose in interpersonal settings”, and that “[w]hile … the existence of a curfew might deter those who partake in organised criminal activity or anti-social gatherings, [he] does not fall into such categories”, noting the absence of evidence before the Tribunal that he has ever committed an offence between the hours of 10pm and 6am.

(2)    At paragraphs [26]-[30] of A SOFIC (Reply), DVRL contended that the electronic monitoring condition “will do nothing to reduce [his] risk of re-offending” (and therefore “do nothing to further protect the Australian community”) because he “does not present as someone whose criminal history has particular geographic connection”. He further contended that the electronic monitoring condition may in fact increase his risk of re-offending as a result of the labelling effect (whereby “an individual internalises stigmas and classifications assigned to them by society … mak[ing] them more likely to behave in such a manner”).

(3)    At paragraphs [36]-[39], DVRL responded to the Minister’s contention that the supports available through the SRSS scheme are “functionally equivalent” to those available were the applicant to be granted a permanent visa. DVRL submitted that: the SRSS payments “are at the complete discretion of the Minister of the day”; that, as a consequence, he has “no certainty about their continuity”; that “changes to the SRSS … has occurred on several occasions before”; and that “[t]he evidence about the SRSS tendered by the [Minister] makes clear that the SRSS, even with recent amendments, cannot be relied upon for long-term stability”. DVRL further submitted that: “The evidence before the Tribunal establishes that after 12 months, [he] will lose all government payments, any government-provided accommodation and any health care medication subsidies he can currently access”.

6.3    Effect of s 501F of the Act on the bridging visa

117    It will be apparent from what I have said so far that the parties apparently proceeded on the assumption that, if the Delegate’s decision was affirmed, DVRL’s third bridging visa would remain in force. Unsurprisingly, the Tribunal proceeded on that same assumption: see particularly TD at [162]-[169]. That common understanding of the Tribunal and the parties appears to have been premised on the notion that a decision to affirm the Delegate’s decision could not be said to involve the making of a decision within the description of s 501F(1) of the Act. Had that not been so, the Tribunal’s decision would result in the deemed cancellation of that visa (s 501F(3)), BVRs not having been specified in the Regulations for the purposes of that subsection.

118    Although the reasons for its adoption are unexplained, the common understanding coheres with the established view that a decision of the Tribunal affirming a decision leaves the original decision intact, and that that is the only decision which takes effect under the enactment:  see eg Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 315 [100] (Hayne and Heydon JJ). Whether there is any room for argument on that issue is not something I need consider further, there being no submission or relevant ground in the notice of appeal or notice of contention addressed to such issues before us.

7.    TRIBUNAL’S REASONS

7.1    Nature of the issue before the Tribunal

119    Part of the reason for setting out the parties’ respective contentions, and the materials upon which they were based, is to make what is perhaps an obvious point: on any view, the issue confronting the Tribunal as to the “risk that may be posed by the non-citizen to the Australian community” was a (comparatively) complex one.

120    That complexity arose because the Tribunal’s task required an evaluative (and necessarily policy-informed) assessment of matters that were not readily commensurable. For example:

(1)    whether any risk arising from the different, or lesser, supports available under the bridging visa regime – the extent and nature of those differences themselves giving rise to further complexity – was mitigated by the conditions attached to that visa – particularly in circumstances where DVRL asserted that such conditions would not meaningfully ameliorate his risk of re-offending and might, in fact, exacerbate it (see eg JMNR [2026] FCA 50 at [104]-[105] (Colvin J)); and

(2)    what comparative reduction in risk, if any, would result from the enhanced support arrangements (and greater sense of security) associated with a permanent visa.

121    Those difficult questions were committed to the Tribunal by force of the Direction and s 499 of the Act. The Tribunal was required to address them and to assess whether either of the two decisional outcomes gave rise to any real difference in terms of “risk”. If no such difference existed, then (logically) this consideration could not weigh either for or against refusal. If the Tribunal was satisfied that the evidence went further and that refusal presented a greater risk (as DVRL contended), this consideration would weigh against that outcome.

122    The Tribunal did not undertake the task required of it under s 499 of the Act and Direction 110. As the primary judge put it at [41]:

The Tribunal … adopted an approach that was appropriate for ordinary cases in which the binary outcome was the visa applicant being, or not being, in the community, as a result of the visa decision.

123    As I have noted above, under that “binary” scenario, the “risk” associated with one outcome is treated as negligible and may be put to one side. That simply could not be done in this case.

7.2    The Tribunal accepted aspects of DVRL’s case

124    Before dealing with the Tribunal’s critical reasoning, it is important to observe, as DVRL noted in his oral submissions, that the Tribunal very clearly accepted aspects of DVRL’s arguments as to the differences between the position under a bridging visa and a protection visa.

125    At paragraph [169] (dealing with the legal consequences of the decision), the Tribunal said:

The Applicant will not be eligible for services that require him to be an Australian citizen as outlined under the protection of the community above.

126    DVRL contended the reference to what had been “outlined … above” could only be a reference to [122] of the Tribunal’s reasons:

A Social Worker from Legal Aid, Mx Pettitt provided a report and gave oral evidence. Mx Pettitt states that the services available through SRSS and Settlement Services international (SSI) will continue no later than September 2025. Mx Pettitt considers that when the services cease the Applicant will be at increased risk of recidivism as he will find it more difficult to access affordable housing, healthcare and financial support. Mx Pettitt considers that to mitigate the risk of recidivism the Applicant needs long term access to low cost or free community support which is best met by a permanent visa.

127    DVRL also observed that the reference at [169] to an “Australian citizen” was presumably intended to refer also to the holders of permanent visas (which is what is dealt with at [122]). The Minister did not dispute that reading, which is a common-sense way of understanding the reasons as a whole (there being no other real discussion of such services in the Tribunal’s reasons dealing with protection of the community). As such, read in context, the Tribunal was apparently accepting at [169] that there were indeed differences in benefits or support that would apply depending upon whether DVRL was granted or refused a protection visa. I have summarised in more detail Mx Pettit’s evidence as to those matters at paragraph [109] above.

128    It is perhaps unsurprising that the Tribunal appears to have (at least in part) accepted that evidence, given that (as I have also noted above) it appears to have been common ground before the parties before the Tribunal that there were at least some differences between the benefits and supports available under each visa. The nature and significance of those differences were, of course, matters for the Tribunal to assess.

129    Tellingly, in the very next paragraph following the Tribunal’s recitation of Mx Pettit’s evidence, the Tribunal said this at [123]:

There is currently intensive support for the Applicant in the community, and this is acknowledged to mitigate the risk of recidivism. It is implicitly acknowledged that the Applicant is a risk to the community without support services.

130    Reading those passages together, the Tribunal thus accepted two significant planks of DVRL’s case:

(1)    the two decisional outcomes were associated with meaningful differences in the level of supports or services available to DVRL; and

(2)    that the availability of such supports was directly relevant to risk of recidivism.

131    Pausing there, it follows that, on any view, the Tribunal did not reject the factual foundation of DVRL’s case on risk in its entirety. I will return to the Minister’s submission to the contrary.

132    It is true, though not dispositive, that the Tribunal also said at [124]:

While there are factors that will reduce the Applicant’s risk of reoffending I do not consider these to address to a significant degree the risk to the community given his longstanding patterns of behaviour.

133    It was suggested by the Minister that this reasoning should be understood as “a finding of greater generality”, reflecting the position that:

…the significant degree of risk doesn't really depend, or at least doesn't critically depend, upon the type of services available. It's the long-standing pattern of behaviour.

134    Properly understood, however, the Tribunal was doing no more than stating that none of the available services would address, to a significant degree, the risk it had found to be associated with DVRL’s behaviour, and that this risk would therefore persist. That observation did not answer the further issue that necessarily arose, namely that the risk would persist under either of the decisional outcomes the Tribunal was required to consider. In those circumstances, the Tribunal was required to assess the risk associated with each outcome, as Direction 110 demanded. That required it to grapple with the aspects of DVRL’s case it had accepted, namely that the two decisional outcomes were associated with meaningful differences in the level of supports and services available to DVRL, and that those matters were relevant to “risk”.

7.3    Critical reasoning of the Tribunal and the error

135    The Tribunal appears to have adopted a different approach. It appears to have proceeded on the footing that it was not required to undertake any comparative assessment of the risk posed by the non-citizen to the Australian community, on the basis that such an assessment lay outside the scope of the matters required to be considered under the Direction (or was perhaps inconsistent with the Direction).

136    That appears from what is said at paragraph [55], where the Tribunal says this:

The proposition that a permanent visa will better protect the community is speculative. If I were to accept that a permanent visa is necessary to meet the Applicant’s criminogenic needs, I am first required to accept that the Applicant is likely to reoffend. This risk of reoffending is what I am required to assess in considering cl.8.1.2(b) of the Direction. I am not required to assess what the Applicant needs to prevent him reoffending.

(Emphasis in original.)

137    The Minister sought to have us read the first sentence of paragraph [55] as the Tribunal expressing a view about the probative force of the material adduced by DVRL, relying on what was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 277 (Brennan CJ, Toohey, McHugh and Gummow JJ). It was, the Minister argued, a conclusion that DVRL’s evidence and submissions did not rise “above the level of abstract or conceptual”.

138    That submission is untenable in light of the point I have already made, being that the Tribunal had clearly accepted significant aspects of DVRL’s case on “risk”. In those circumstances it could not be said that the Tribunal had concluded there was no meaningful difference between the two decisional outcomes on the facts (because it had not rejected the factual foundation of DVRL’s case). What the Tribunal is rather to be understood as saying is that the evaluative process was difficult (and not something it proposed to undertake) because, amongst other things, it involved a degree of “speculation” as to the future. Of course it did. As I have said, that is the nature of the matters the Direction requires to be considered. None of that is a reason for refusing to follow the process of reasoning required by the Direction.

139    The remainder of that paragraph confirms that the Tribunal erroneously assumed that it was not required to enter into any such analysis. Various ingenious readings of that passage were advanced by the Minister. But fundamentally, as DVRL submitted:

[W]hen the Tribunal says "I'm not required to assess what the [applicant] needs to prevent him from offending", what it is saying is that it's ruling out consideration of whether the protection visa would assist the applicant from re-offending. That's just what [paragraph] 55 means …

140    DVRL’s submission is right.

141    Wu Shan Liang (1996) 185 CLR 259 is not a licence for the Court to disregard clear and unambiguous language used by an administrative decision-maker. Underlying the bedrock proposition that reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error is a concern that a reviewing court may otherwise turn “a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”: Wu Shan Liang, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), referring to Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J). That rationale is subverted – and the Court is drawn into the merits – if it starts down the path of speculating on ways in which the Tribunal’s reasoning could be reconstructed into validity: see by analogy LPDT (2024) 280 CLR 321, 335 [36] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). For that reason, as has been said in this Court a number of times, Wu Shan Liang does not mean that the reasons should be strained in order to reach an interpretation that would uphold the decision-maker’s decision: see eg Dass v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 63 at [46] (Burley J) and CRG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 179 ALD 330 (Wheelahan J) at [52] and the authorities there referred to. That is what the Minister would have us do.

142    The primary judge made a similar point at [44] before observing that “[t]he most obvious and logical meaning attributable to [TD] [55] is to be preferred”, namely that “[t]he Tribunal was denying a need to carry out the broader risk assessment I consider was necessary in this case…”. I agree with his Honour’s conclusion.

143    That meaning, clearly conveyed by the last sentence of TD [55], is reinforced by the second sentence of that paragraph, where the Tribunal (albeit somewhat cryptically) stated: “If I were to accept that a permanent visa is necessary to meet the Applicant’s criminogenic needs, I am first required to accept that [DVRL] is likely to reoffend”. Some attention was paid to that (perplexing) sentence in argument. It is undoubtedly correct, as the Tribunal immediately went on to observe in the next sentence that “[t]his risk of reoffending is what I am required to assess in considering cl.8.1.2(b) of the Direction”. But the point is that the Tribunal was required by the Direction to assess that risk by reference to each of the two decisional outcomes realistically available to DVRL, both of which exposed the Australian community to DVRL. Read together with the last sentence of TD [55], that is plainly what the Tribunal was refusing to do.

144    The primary judge expressed a similar view about the last sentence of TD [55] at PJ [43]:

The first and more benevolent interpretation [of the last sentence of paragraph [55]] is that the question for the Tribunal is not what would be best for the applicant. That would be uncontroversial, but it is an improbable reading as the applicant’s focus was on the assessment of any risk (which he separately submitted was low), rather than there being a denial of there being any risk at all. However, that seems to be a rather pointless thing for the Tribunal to be saying. The alternative and better reading of [that sentence] is that the Tribunal was saying it was not required to consider the impact that the visa would have on factors that would reduce the risk of the applicant’s reoffending.

145    That reading is further reinforced by what appears in paragraph [56], in which the Tribunal appears to give further reasons for not considering those matters:

This submission also requires me to accept that the conditions placed on the Applicant on a BVR will not protect the community. It further requires me to accept it is necessary for the protection of the community to remove the ability of the Australian government to decide that the Applicant is no longer the subject to a protection finding in section 197D of the Act.

146    That reasoning reflects an additional misunderstanding of the task confronting the Tribunal: true it is that DVRL cast doubt on the efficacy of the conditions imposed by the bridging visa in addressing risk (see paragraphs [104]-[110]) above. However, as DVRL submitted before us, the more fundamental submission advanced to the Tribunal was that the “protection visa would provide more protection for the community than a [bridging visa] because of the levels of support that [DVRL] would have”. Overlooking those matters, the Tribunal in paragraph [56] was giving further reasons why it was not willing to undertake that analysis, being the analysis required by Direction 110. And none of those reasons provided any basis for not doing what the Tribunal was directed to do, at least none grounded in the text of the Direction.

147    Perhaps implicitly accepting the difficulties posed by those aspects of the reasons, the Minister sought to place great emphasis on paragraph [58], which was in the following terms:

Many of the submissions made about the effect of being on a BVR are not supported by the evidence about the Applicant’s current situation:

•    The psychology report relied on by the Applicant in support of the submission that a permanent visa will provide protection to the community, lists support services as one factor in predicting how he is likely to behave in the community. Support services are factors that the psychologist considers will assist in his reintegration, rather than addressing risk the Applicant poses to the community. There is a significantly longer list of factors in the psychology report that affect risk which have no relationship to his visa status or his reintegration into the community. These include his culture and experience of violence, the age at which he commenced violent offending, his likely relationship status, the loss of structure from being released from immigration detention, his substance use, his willingness to access services, and his involvement in the Church.

•    The Applicant has a Medicare card and a Healthcare card, and he has access to medical treatment and reduced cost medication.

•    He is currently receiving a Centrelink payment of special benefit, and while the grant of this payment is discretionary, the Applicant has not provided any information to show this payment was granted for a particular period or will end. His payments will otherwise continue unless he fails to comply with the provisions of the Social Security Act 1991 (Cth) or the Social Security (Administration) Act 1999 (Cth). He has financial security.

•    The curfew condition requires the Applicant to remain at a notified address between 10pm and 6am. The grant of the Applicant’s current BVR is accompanied by information that he can notify the Department of his location by 12 noon the same day he wants to stay in another location. This condition will not prevent him staying with friends or family or going on holidays. The issue of staying in an environment where he is at high risk of reoffending does not support his rehabilitation or that the risk to the community has decreased.

•    The Applicant have evidence [sic] that he plans to progress his artwork and perhaps to provide art lessons. He said he rarely leaves his residence, and complying with a curfew does not cause him difficulty.

•    The Applicant currently has accommodation arranged for him by support services and says he would like to live with his friend in regional NSW. He has a life skills educator assisting him for 9 hours a week and who can assist him in learning how to access the rental market should he wish to access alternate accommodation. While he is not eligible for public housing, his accommodation needs are met.

(Citations omitted.)

148    Having regard to that reasoning, the Minister argued that the Tribunal was not required to have regard to the comparative risks of each of the decisional outcomes in play before the Tribunal, because the Tribunal “made factual findings which made the comparison unnecessary … including because the Tribunal rejected the fundamental factual premise upon which it was put that he was [at] greater risk of offending were he to remain on a [bridging visa]”. It was said that that amounted to a “detailed response as to why many of the applicant’s submissions about the hardship that he would face by continuing to live on a [bridging visa] are not supported by the evidence”.

149    That submission cannot be accepted for the reasons I have already identified (see [124]-[134] above): again, the Tribunal very plainly accepted significant aspects of DVRL’s case. In those circumstances, it could not be said that the Tribunal had concluded, on the facts, that there was no meaningful difference between the two decisional outcomes in play. On the Tribunal’s own findings, those issued remained live, yet they were nowhere addressed in its reasons.

150    That conclusion also explains the careful wording of the chapeau to paragraph [58], to which DVRL drew attention: “Many of the submissions [but, tellingly, not all of the submissions] made about the effect of being on a BVR are not supported by the evidence…”. There, the Tribunal was expressly signalling that it was not addressing those matters comprehensively; the Tribunal did not understand that it was required to do so, by reason of what it had said in paragraphs [55] and [56].

151    That understanding coheres with the fact that there were a number of other aspects of DVRL’s case before the Tribunal – identified by DVRL during the hearing – which were not addressed at all in paragraph [58] of the Tribunal’s reasons.

152    First, the Tribunal failed at [58] to engage with DVRL’s submission that he would have increased opportunities for integration with the community were he to be granted a permanent visa (and be in the community without the curfew and electronic monitoring conditions). In this regard, DVRL relied on A SOFIC [94] which stated:

Permanent residency will address the applicant’s criminogenic needs including reduced financial stress and improved financial stability, access to housing, increased opportunities for integration with the community and improved access to medical treatment.

(Emphasis added.)

153    Second, while the Tribunal did consider the fact that DVRL could be “locked up" if he breached his bridging visa conditions, the Tribunal did not separately consider that DVRL could have his bridging visa cancelled and remain in the community as an unlawful non-citizen, but not have access to any of the benefits (a scenario which “would obviously increase his risks” of re-offending). With respect to that shortcoming in paragraph [58], DVRL referred to paragraphs [115]-[116] of A SOFIC which stated:

Clause 070.511 of sch 2 of the Migration Regulations 1994 (Cth) provides that a BVR ceases when the Minister gives the visa holder notification of a breach of a condition.

Such a notice would render the applicant an unlawful non-citizen in the community and disentitle him to the limited benefits he receives in connection with the BVR.

154    Third, the Tribunal did not address DVRL’s argument that, although at the time of the Tribunal hearing, he was entitled, as a holder of a bridging visa, to certain supports and services, those supports and services would not last. In that respect, DVRL relied on A SOFIC and Mx Pettitt’s report (see [104]-[110] above). A SOFIC (Reply) similarly makes that point at [39]:

[E]ven with the enhanced” SRSS, the support is only available for a maximum of 12 months. The evidence before the Tribunal establishes that after 12 months, the Applicant will lose all government payments, any government-provided accommodation and any health care medication subsidies he can currently access. Once this occurs, it is unarguable that the Applicant’s criminogenic factors will be exacerbated through homelessness, a lack of medical care and financial instability – a situation which will undoubtedly have a regressive impact on the protection of the Australian community.

155    The Minister accepted that those matters appeared not to be addressed in paragraph [58]. He relied upon what was said by McHugh J (apparently) in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [65] to the effect that the Tribunal is not required to engage in a line-by-line refutation of the evidence that is adduced. That is of course true. But read fairly and in context, it is plain that the Tribunal in its reasons did not address the whole of DVRL’s factual case on the issue of comparative risk at some more fundamental level or in findings of greater generality, so as to render further consideration of that issue unnecessary.

156    That is further reinforced by what appears in the very next paragraph of [59], where the Tribunal says this:

Given this evidence of the support he receives, the link between having a permanent visa and the protection of the community is tenuous as best and I do not accept the submission that the protection of the community weighs in favour of granting the visa.

157    The “evidence of the support he receives” was a reference to what was said about the support available to him on the BVR, dealt with in paragraph [58]. In other words, and further emphasising the limited compass of what was dealt with in paragraph [58], the Tribunal was saying it was sufficient to conclude that there was some support under those existing arrangements. None of that addressed (let alone contradicted) the proposition that the supports available under a protection visa would be greater or more beneficial – again, that is exactly what the Tribunal later accepted. The Tribunal was simply saying that it was not going to go further and undertake that counterfactual analysis, being the analysis required by the Direction.

158    Subject to one further creative argument put by the Minister, that is sufficient to reject the Minister’s appeal.

7.4    Possible future removal

159    I have already noted that the Minister took issue with what was said by the primary judge at PJ [34], submitting that his Honour may have misunderstood that DVRL would not necessarily “remain in Australia”. The Minister made a similar point as regards PJ [33].

160    The Minister further developed that submission as an additional reason for concluding that there was no error in the Tribunal’s reasoning. He submitted that the Tribunal was not required to undertake the analysis of the risks associated with each of the two decisional outcomes because it had made factual findings which rendered such analysis “unnecessary”, including by taking into account “the possibility that the applicant wouldn’t remain in Australia on a [bridging visa]”.

161    Put another way, the Minister submitted that the Tribunal had correctly proceeded on the basis that the applicant’s circumstances were not “binary”, such that no comparison was required “between the applicant living in the community on a [bridging visa] and the applicant living in the community on a protection visa”. Rather, according to the Minister, the Tribunal approached the case on the footing that “there [were] some other possibilities, including a possibility that the Australian Government would determine that the protection finding no longer applied to the applicant”. In support of that submission, the Minister relied in particular on paragraphs [154] and [157] of the Tribunal’s reasons (set out at [166] below), contending that the Tribunal had drawn “a subtle distinction”: while removal to a third country might be foreseeable at some indeterminate point in the future, such removal was “not a legal consequence of the decision” under review, given that the relevant legislative amendments had not yet commenced.

162    There is, however, a fundamental difficulty with accepting the Minister’s submission: as DVRL submitted before us, and notwithstanding its acknowledgment of other future “possibilities”, the Tribunal repeatedly accepted that the consequence – at least the immediate and operative consequence – of refusing the protection visa was that the applicant would remain living in the Australian community on a bridging visa. Indeed, the Minister candidly and fairly accepted as much during the hearing: “I don’t dispute, as the Tribunal accepted, that … the immediate consequence of refusal will be that the applicant will continue to live in the community on a [bridging visa]”.

163    First, the Tribunal stated in express terms at paragraph [57] that:

If his protection visa application is refused, the Applicant will remain in the community on a BVR unless there is a decision that a protection finding would no longer be made in relation to him under section 197D of the Act, or on commencement of the Removal and Other Measures Act his BVR ceases because a foreign country agrees that the Applicant can enter and remain in that country.

(Emphasis added.)

164    Consistently with that finding, the Minister himself characterised paragraph [57] as acknowledging that “this isn't a case where the Tribunal just misunderstood the legal framework”, and accepted that the Tribunal recognised that “at least in the first instance, it's likely that the applicant would remain in the community”.

165    Second, the Tribunal reiterated that position in considering the expectations of the Australian community. At paragraph [148] of the Tribunal’s decision, it expressly stated that:

As the Applicant has been convicted of an offence regarded as very serious by the community, the community expects the government that will not allow him to remain in Australia in accordance with cl 8.5(1) of the Direction. Despite this expectation, the Applicant will remain in Australia because he is the subject of a protection finding unless this finding would no longer be made or arrangements made for him to enter and reside in another country. As he cannot be removed, he will be in the community and be subject to the conditions imposed on his BVR.

(Emphasis added.)

166    Third, paragraphs [154] and [156]-[157] of the Tribunal’s reasons, read fairly, reinforce rather than undermine the proposition that the Tribunal found that the consequence of refusing the protection visa was that the applicant would remain in Australia living in the community on a bridging visa. Those passages were as follows:

A finding has been made that the Applicant meets s 36(2)(a) of the Act because he is a refugee. As a result, there is no legal obligation to remove him from Australia unless a decision is made under s 197D of the Act that a protection finding would no longer be made, or if on commencement of the Removal and Other Measures Act a foreign country who is a party to a third country reception arrangement had given him permission to enter and remain in that country and a protection finding would not be made in respect of that country.

…

I must make an assessment at the time of this decision. At this time neither amending Act has commenced, no arrangements have been made with third party count[r]ies, it is unknown if Papua New Guinea would be one of those countries, and it is unknown if the Minister would seek permission for the Applicant to enter and reside in any other country. I do not consider I can attach weight to a speculative scenario, rather than one likely to occur in the reasonably foreseeable future.

What is reasonably foreseeable is that one or both amending acts will commence and if this occurs there will be a power to enter into arrangements with third party countries. I do not consider it a current legal consequence that the Applicant will be removed from Australia, or that his BVR will cease and he will be detained as a result of an ability to remove him from Australia.

(Emphasis added.)

167    The Tribunal there acknowledged the theoretical availability of future removal powers, but expressly declined to treat removal as a current legal consequence, noting that the relevant amending legislation had not yet commenced, no third-country arrangement existed, and that any removal scenario was speculative rather than reasonably foreseeable.

168    Fourth, the Tribunal summarised the legal consequence of refusal at paragraph [169] in plain language:

In summary, the legal consequences of the decision to refuse his visa is that the Applicant is subject to a BVR and will remain in the community unless a protection finding would no longer be made or on commencement of the amending acts another country agrees he can enter and reside in that country. The Applicant will not be eligible for services that require him to be an Australian citizen as outlined under the protection of the community above. His BVR means he is subject to certain conditions including a requirement not to contact any family members of the victim of his offending which may include his adult children. He is presently subject to electronic monitoring and a curfew however he can make representations to the Minister about why his visa should not be subject to these conditions. If unsuccessful before the Minister, he can seek a further review to this Tribunal.

(Emphasis added.)

169    Finally, the Tribunal reiterated at paragraphs [172]-[173] that:

The Applicant will not be removed from Australia as there is a protection finding that prevents his removal, the amending acts have not commenced and there are no third country agreements. If his visa remains cancelled, he will remain in the community on a BVR. As he will not be removed from Australia, unless other events occur such a decision a protection finding would no longer be made under s 197D, or a foreign country gives permission to enter in reside in that country and his BVR ceases. No country has been specified for removal, and this assessment cannot be conducted if the country is not identified.

There is no known country to which the Applicant can be removed. As he will not be removed this does not apply.

(Emphasis added.)

170    Having regard to those passages of the Tribunal’s reasons, I accept DVRL’s submissions on this issue. The Tribunal clearly conducted its analysis on the basis of what it considered to be likely to occur in the reasonably foreseeable future, rather than second guessing at “speculative” possibilities. No error is revealed in the reasoning of the primary judge by any of that.

171    Indeed, even if all of that be wrong, it would remain for the Tribunal to assess risk under each of the decisional outcomes. DVRL’s case was that the circumstances that prevailed under the bridging visa carried with them a higher risk of re-offending than under a permanent visa. Even if it were convinced DVRL was to be removed in the reasonably foreseeable future (and it plainly was not of that view – see again at [156] of its reasons), the Tribunal would have had the (difficult) evaluative task of deciding whether the short-term higher risk of re-offending (if established) was outweighed by the longer-term benefits of removing DVRL from the community altogether. It did not undertake any such analysis.

8.    CONCLUSIONS REGARDING THE MINISTER’S APPEAL

172    There is no doubt that the Tribunal’s reasons are not an exemplar of clarity. But those obscurities cannot be elevated to some form of protective patina, shielding from scrutiny what is otherwise plain on a fair reading of the reasons taken as a whole. For the reasons I have given, it is clear that the Tribunal refused to do the very thing the Direction required. The primary judge correctly captured that position at [46], observing:

The Tribunal’s reasons strongly suggest that the Tribunal has considered that once it was satisfied that the applicant poses a high enough risk, the consideration of the protection of the Australian community favours not granting a protection visa. That was further made clear by the fact that there was no meaningful forward-looking assessment of the risk posed by the applicant if he remained in the community on a [bridging visa]. The Tribunal was not taking the additional step of asking whether the level of risk if the applicant remained on a [bridging visa] was higher than the risk posed if the protection visa was granted.

173    As I have said, that involved an error of the kind identified in LPDT (2024) 280 CLR 321 at [33]-[34]. The Minister did not contend that there is no realistic possibility that the decision that was made in fact could have been different if the error had not occurred (and did not challenge the reasoning of the primary judge at PJ [48]). That is an appropriate position to take, given that the Tribunal:

(1)    found that there was a “moderate likelihood” that DVRL would re-offend, and that “risk to the community is severe” (see TD [127]);

(2)    said, as regards its overall conclusion on the protection of the Australian community, at TD [128] that, “Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct … I consider that this primary consideration weighs heavily in favour of refusing to grant the visa”; and

(3)    found that those matters (amongst others) “weigh[ed] heavily in favour of not granting the visa” (see TD [182]).

174    Having regard to that path of reasoning, the threshold of materiality was clearly met, and the error was therefore jurisdictional.

9.    NOTICE OF CONTENTION

175    First, while legal unreasonableness was raised by ground 1 of DVRL’s NoC, I understood DVRL to advance that as an alternative way of understanding the error found by the primary judge. In light of my conclusions above, and the view I have taken as to the preferable way to characterise that error, it is unnecessary to address those issues.

176    It is, however, convenient to make one observation. The Minister referred to XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539, in which the Full Court held that it was not irrational for the Minister (exercising a personal discretionary power under s 501BA of the Act) to be satisfied that the protection of the community favours cancellation of a visa, without expressly explaining how or why that should be the case in circumstances where the non-citizen would continue to reside in the community, on the basis that the Minister knew that conditions attached to a BVR would reduce the risk to the Australian community: see at [114] (Stewart and Needham JJ). The same conclusion was reached in SSVJ [2026] FCAFC 45 (but see, contra, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v KFTJ [2026] FCAFC 52). Those decisions are distinguishable. In the present case, the Tribunal was required by s 499 of the Act to follow the requirements of Direction 110: see again para 4.1 of Direction 110. For the reasons I have already given, it did not do so. Further, an argument of that kind was not advanced in XKTK or SSVJ.

177    Second, what I have said renders it unnecessary for me to express any view on ground 2 of DVRL’s NoC and I do not do so.

10.    CONCLUSION

178    For the reasons set out above, the appeal should be dismissed.

179    The Minister should pay DVRL’s costs.

180    Finally, I wish to express my appreciation for the very helpful oral submissions made by both parties – the advocacy in this matter was of a very high standard and of considerable assistance to the Court.

Associate:

Dated:    27 May 2026