Federal Court of Australia

NCNZ v Minister for Immigration and Citizenship [2026] FCA 870

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s further amended originating application dated 16 June 2026 is dismissed.

2.    The Applicant is to pay the First Respondent’s costs in an amount to be assessed, if not agreed.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    This is an application to review a decision of the Second Respondent (the Tribunal), which affirmed a decision by a delegate of the First Respondent (the Minister) made under s 501CA of the Migration Act 1958 (Cth) not to revoke the cancellation of the Appellant’s protection visa.

2    The Applicant contends that the Tribunal made two errors:

    First, the Tribunal considered ties to Australia and best interests of minor children on the basis that the Applicant would not be removed from Australia, irrespective of the Tribunal’s decision, whereas (it is said) the Applicant remains vulnerable to removal to a third country. The Tribunal’s reasoning is said to involve either an incorrect understanding of the law (ground 1), or a failure to consider evidence and representations of the Applicant (ground 2).

    Second, it is said that the Tribunal failed to compare the risk to the community of the Applicant being released into the community on his original visa (if the visa cancellation was revoked), or being released into the community on a bridging visa (if the visa cancellation was not revoked). The Applicant contends that Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73 requires this comparison to be done (ground 3).

3    For the following reasons, the Applicant’s grounds of review are rejected. The application is therefore dismissed with costs.

background

4    Arrival in Australia (Oct 2011): The Applicant is an Iranian citizen of Kurdish ethnicity. He arrived in Australia on 23 October 2011 as an unauthorised maritime arrival.

5    Applicant granted protection visa (Jun 2012): On 19 June 2012, the Applicant was granted a protection visa.

6    Applicant sentenced to 10 years’ imprisonment (Apr 2023): On 21 April 2023, the Applicant was sentenced by the County Court for an offence of sexual assault and an offence of rape, both committed in 2018. The Applicant was sentenced to a total effective sentence of 10 years’ imprisonment.

7    Applicant’s visa mandatorily cancelled (Jul 2024): On 18 July 2024, the Applicant’s visa was cancelled under s 501(3A) of the Act, by reason of his 2023 conviction and sentence.

8    Delegate decides not to revoke cancellation (Sep 2025): On 30 July 2024, the Applicant requested revocation of the cancellation of his visa. On 1 September 2025, a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa.

9    Tribunal affirms delegate’s decision (Nov 2025): On 9 September 2025, the Applicant applied to the Tribunal for merits review of the delegate’s decision. The Tribunal conducted a hearing by videoconference on 20-21 November 2025 (Tribunal reasons for decision (ART) [5]). On 26 November 2025, the Tribunal affirmed the delegate’s decision. In doing so, the Tribunal applied Ministerial Direction No 110, issued under s 499(2A) of the Act (ART [14]).

10    Application for judicial review (Dec 2025): On 10 December 2025, the Applicant applied for judicial review of the Tribunal’s decision. The Applicant was given leave to rely on a further amended originating application dated 16 June 2026.

11    The Applicant’s grounds of review, and the Tribunal’s conclusions relevant to those grounds, are as follows:

    The Tribunal found, when considering the Applicant’s ties to the community under cl 8.3 of Direction No 110, that the Applicant will not be removed from Australia as a consequence of the Tribunal’s decision (ART [73]). The Tribunal also found, when considering the best interests of minor children under cl 8.4, that the Applicant would have the opportunity to pursue a closer relationship with his daughter and his nephews and nieces, irrespective of the Tribunal’s decision because the Applicant cannot be removed from Australia (ART [79]). The Applicant contends that he is vulnerable to being removed to a third country, and therefore this reasoning either involved an incorrect understanding of the law (ground 1), or a failure to consider and assess the Applicant’s evidence and submissions (ground 2).

    When considering the protection of the community, the Tribunal found that the Applicant constituted a real recidivism risk that could not be safely disregarded. As the very serious nature of the Applicant’s crimes was coupled with a real risk of reoffending, which may cause devastating harm, the Tribunal found that this primary consideration weighed “very substantially” against revocation (ART [62]). The Applicant contends that the Tribunal was required by DVRL to compare the risk of the Applicant re-offending if his visa were reinstated, against the risk of him re-offending if the visa remained cancelled and he were released into the community on a bridging visa, but failed to do so (ground 3).

analysis

Grounds 1-2: Tribunal’s consideration of ties to Australia, and best interests of minor children

12    It is convenient to consider Grounds 1 and 2 together, because these are alternative characterisations of the error that is said to follow from the Tribunal finding that the Applicant would not be removed from Australia.

    Ground 1 contends that the Tribunal acted on an incorrect understanding of the law, by considering cls 8.3 and 8.4 of Direction No 110 on the basis that the Applicant would not be removed from Australia.

    Ground 2 contends that the Tribunal failed to consider or engage in an evaluative assessment of the Applicant’s evidence and submissions, and/or cls 8.3(1) and 8.4(4)(d) of Direction No 110. The Applicant contends that, by failing to consider his legal vulnerability to removal to a third country when considering cls 8.3 and 8.4 of Direction No 110, the Tribunal failed to consider the effect of the Applicant’s removal on his mother or his daughter, which was raised in the Applicant’s contentions to the Tribunal. There is no dispute that these matters were raised by the Applicant.

13    Tribunal’s reasons (ties to Australia, best interests of minor children): The relevant parts of the Tribunal’s reasons for grounds 1 and 2 are as follows.

14    Strength, nature and duration of ties to Australia (cl 8.3): Starting with the Applicant’s ties to Australia, his parents, his daughter and three of his siblings live in Australia, as well as 11 nieces and nephews whose ages vary between 4 and 27 years old (ART [68]-[69]). The Tribunal accepted that the Applicant’s family members place considerable significance in his place in their lives, and want him to remain in Australia (ART [69]).

15    The Tribunal found in ART [73] that the Applicant “will not be removed from Australia as a consequence of the Tribunal’s decision”. He will be released from prison at some point between March 2027 and March 2030. (March 2027 is the Applicant’s earliest parole date, and March 2030 is the expiry of his custodial sentence: see ART 25(t).)

    If the cancellation of the Applicant’s visa is revoked, the Applicant’s permanent visa will be restored.

    In the event of non-revocation, the Applicant “may be placed after release from prison on a conditional BVR [ie Bridging R (Class WR) Subclass 070 visa] because of the protection finding in his favour”.

The Applicant’s connection to the community “is relatively narrow and strongest through a small number of family members”. This primary consideration “weigh[ed] moderately at best” in favour of revocation (ART [73]).

16    Best interests of minor children in Australia (cl 8.4): As to best interests of minor children in Australia, the Applicant relied on the best interests of his 14-year-old daughter (who lives with the Applicant’s sister), and the 8 of his nieces and nephews who were under the age of 18.

    The Tribunal found that the Applicant’s mother and now his sister have performed the primary parental role for the Applicant’s daughter, and the Applicant has been absent in a physical sense for virtually the entirety of his daughter’s life. The Applicant’s daughter will be turning 18 in four years, which would leave only a relatively brief period before she turns 18, even if the Applicant succeeds in securing release on the earliest possible parole date (in March 2027) (ART [77]).

    The Tribunal was not satisfied that the Applicant has played a parental role for any of his nieces and nephews, and there have been long absences and limited meaningful contact since 2018. That said, the Tribunal accepted that the Applicant wanted to play a more prominent uncle role if released (ART [78]).

17    The Tribunal found that, “[i]rrespective of [its] decision”, the Applicant would have the opportunity to pursue a closer relationship with his daughter and his minor nieces and nephews (ART [79]).

    A revocation decision meant that the Applicant’s permanent visa will be reinstated and he “would return to the community after his sentence of imprisonment concludes”.

    In the event of a non-revocation decision, the Applicant “cannot be removed from Australia because of the protection finding in his favour”. The Tribunal continued:

It is therefore probable that as his release from prison approaches he would fall for consideration under arrangements applying to the so-called ‘NZYQ cohort’ of persons affected by the High Court’s 2023 decision [NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; (2023) 280 CLR 137] and released at some stage on a [BVR] with certain conditions pursuant to regulation 2.25AE of the Migration Regulations 1994 (Cth).

18    The Tribunal concluded that revocation was in the best interests of the Applicant’s daughter and minor nieces and nephews, but that this consideration weighed “only moderately at best” in favour of revocation (ART [80]).

19    Legal consequences of the Tribunal’s decision (cl 9.1): The Tribunal’s reasoning on the legal consequences of its decision is also relevant. The Tribunal stated that the Applicant “continue[d] to believe that removal to Nauru is a reasonably foreseeable consequence of a non-revocation decision”, despite efforts to explain the “uncertain branches and sequels of future events”. The Tribunal “step[ped] through” the legal consequences of its decision as follows (ART [92]).

20    The Tribunal stated that the Applicant “cannot currently be removed to Iran”, because s 198(5A) of the Act no longer required or authorised this (ART [92](a), read with [90]). The Tribunal stated that two paths emerged from its decision:

(a)    First, if the cancellation decision was set aside, the Applicant’s protection visa would be restored. He would continue serving his sentence possibly until March 2030, depending on whether he is granted parole. There was no evidence as to what the Victorian Parole Board might do. Other possibilities in this situation were that the Minister might seek judicial review of the Tribunal’s decision, seek to exercise a personal power under s 501BA, or choose at some future point to remove the Applicant’s protection finding and detain him for involuntary removal (under ss 197C(3)(c) and 197D of the Act). There was no evidence of any such intentions, and the Tribunal found that these potential exercises of power by the Minister were not an immediate or reasonably foreseeable consequence of its decision (ART [92](a)(i)).

(b)    Second, if the cancellation decision was affirmed, the Applicant would continue his prison sentence. He could seek judicial review of the Tribunal’s decision. The Tribunal then set out the following possible outcomes for the Applicant on his release from prison (ART [92](a)(ii)):

(i)    The Applicant could be taken into detention or found to fall within the “NZYQ cohort”. This would depend on the state of the law, which was potentially over four years from the Tribunal’s decision.

(ii)    If the Applicant were found to be in the NZYQ cohort, he could be considered for the grant of a BVR with certain conditions. This again depended on whether current legislation and regulations remain in place at the time of his release, “in what has been a fast-moving area of the law”. A BVR holder becomes a “removal pathway [non-]citizen” within s 5(1) of the Act, and related provisions. This could include removal to a third country if that country decided to approve the Australian Government’s request for a non-citizen to enter and remain there.

21    On third country removal, the Tribunal was aware that Australia entered into a resettlement arrangement with New Zealand in 2022, and had settled a third country reception arrangement with Nauru in September 2025. The Tribunal stated “[t]hese could become relevant at some indeterminate future time once the Applicant’s prison sentence ends and if he is placed on a BVR”. Alternatively, the decision might be to permit the Applicant to continue to reside in Australia “as is currently the case for the vast majority of non-citizens” in the NZYQ cohort. The Tribunal stated that news reports indicated that, although more than a dozen of the NZYQ cohort were re-detained after being issued Nauruan visas, only a small number have since been deported. The Tribunal stated that ultimately “any removal decision under a third country [reception] arrangement would be an exercise of non-statutory executive power rather than a consequence of a non-revocation decision by the Tribunal” (ART [93]).

22    The Tribunal observed that the Applicant was not currently a member of the NZYQ cohort. There was no evidence that, if he were to be granted a BVR in the future, he would be subject to a removal pathway direction to Nauru or another country. The Tribunal found that these future possibilities were not a direct consequence of the Tribunal’s decision, turned on the irresoluble course of future events, and did not need to be speculated upon (ART [94]). However, irrespective of how future events evolved, the Tribunal accepted that a non-revocation decision “may be distressing for the Applicant, his parents, daughter, siblings, and perhaps others”. While the Applicant would be permitted to remain in Australia, a non-revocation decision “would likely result in future visa uncertainty” (ART [95]).

23    The Tribunal found that the legal consequences of its decision carried slight weight at best in favour of revocation (ART [96]).

24    Other relevant reasoning: The Tribunal returned to these findings in its “Conclusion” section.

    The Tribunal stated that the Applicant’s connection to the community was relatively narrow and strongest through a small number of family members. Irrespective of the Tribunal’s decision, the Applicant would not be removed from Australia because of the 2012 protection finding in his favour. Once released from prison at some point between March 2027 and March 2030 he would be able to pursue his aspiration to be a better father, son, brother and uncle. That said, in the event of a non-revocation decision “this may be on a conditional BVR with the attendant uncertainty accompanying such visas” (ART [104]).

    The Tribunal stated that the legal consequences confronting the Applicant “turn on the irresoluble course of future events”. However those events turned out, the Tribunal accepted that “non-revocation may be distressing for him, his parents, daughter, siblings, and perhaps others. Although permitted to remain in Australia irrespective of the Tribunal’s decision, a non-revocation decision would result in future visa uncertainty” (ART [105]).

25    Earlier, when considering the expectations of the Australian community, the Tribunal stated that the Applicant “has a 2012 protection finding in his favour and, for the reasons expressed earlier, will remain in the community irrespective of the Tribunal’s decision” (ART [86], emphasis added).

26    Did the Tribunal commit an error of law (ground 1)? The Applicant’s first argument is that the statements in ART [73] that the Applicant “will not be removed” from Australia, and in ART [79] that he “cannot be removed” from Australia, both involve an error of law, because his removal from Australia is a legal possibility. The same error is said to arise with the statement in ART [104] that the Applicant “will not be removed from Australia because of the 2012 protection finding in his favour”.

27    Tribunal’s reasons must be read fairly and as a whole: There is no dispute at the level of principle that the Tribunal’s reasons must be read fairly and as a whole, and that the fact that matters are dealt with sequentially does not mean that a decision-maker has “quarantined the assessment of each topic from every other topic”: see Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 280 CLR 265 at [50] (the Court).

28    In this case, that means that the Tribunal’s conclusions on the Applicant’s ties to the community, and best interests of minor children, must be read together with the Tribunal’s findings on the legal consequences of its decision. The clear effect of the Tribunal’s statements in ART [92] (set out in [19] above) is that the Tribunal considered that removal to a third country, such as New Zealand or Nauru, was not a reasonably foreseeable consequence of its decision. The Tribunal considered that removal to a third country would involve a (discretionary) exercise of non-statutory executive power, and that it was not a consequence of the Tribunal’s decision (ART [93]).

29    Read in that light, there is no error in the statement in ART [73] that the Applicant “will not be removed from Australia as a consequence of the Tribunal’s decision” (emphasis added). And when the Tribunal’s reasons are read as a whole, this qualification (that removal from Australia is not a consequence of the Tribunal’s decision) is necessarily implicit in the statement in ART [79], and the like statement in ART [104]. There is no error of law, and ground 1 must be rejected.

30    Did the Tribunal fail to consider the possibility of third country removal (ground 2)? The Applicant’s second argument is that the Tribunal’s failure to consider the possibility that the Applicant could be removed to a third country, when considering ties to the Australian community and best interests of minor children in Australia, meant that the Tribunal did not consider the Applicant’s contentions on the impact of his removal on his daughter and mother, in particular.

31    Tribunal may limit its consideration to reasonably foreseeable consequences: The Applicant submits that the extent of consideration required by cls 8.3 and 8.4 of Direction No 110 is not bounded by cl 9.1 (which refers to the legal consequences of a decision), and he observes that cl 8.3 requires decision-makers to consider “any” impact. The Applicant submits that these considerations in Direction No 110 are “open-textured” and evaluative, having regard to the specific circumstances of each case, relying on DVRL at [45]-[46].

32    The open-textured and evaluative nature of cls 8.3 and 8.4 of Direction No 110 can be accepted. However, it is consistent with general principle that decision-makers only have to consider the reasonably foreseeable consequences of their decision, to ensure that the decision is made on the basis of probative material and not guesswork: see CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [59]-[60] (Mortimer J); AKH16 v Minister for Immigration and Border Protection [2019] FCAFC 47; (2019) 269 FCR 168 at [49] (Middleton and Mortimer JJ). In DXJL v Minister for Immigration and Citizenship [2025] FCA 1303 at [72] and [78], I held that the Tribunal was not required to determine a non-citizen’s home country (when that was in dispute), if the Tribunal had found that the non-citizen’s removal was not practicable for the reasonably foreseeable future. I would interpret the reference to “any impact” in cl 8.3 as meaning “the impacts, if any” of removal, rather than requiring consideration of impacts that extend beyond what is reasonably foreseeable. Consistently with that interpretation, cl 8.4(4)(d) refers to “the likely effect that any separation” of the non-citizen would have on the child; that is, the likely effects of a separation, if any. And cl 6 provides that a decision-maker must take into account the considerations identified by cls 8 and 9, “where relevant to the decision”.

33    No requirement to speculate on the future exercise of discretionary, non-statutory powers: Further, the Tribunal correctly stated that removal to a third country would turn on whether the Minister would choose to exercise discretionary, non-statutory powers in respect of the Applicant. The Tribunal observed that the “vast majority” of people who had been granted a BVR remained living in the community (ART [93]-[94]). In these circumstances, there was no requirement for the Tribunal to speculate on whether the Applicant might be removed to a third country, or to consider the ties to the community and best interests of minor children on that alternative hypothesis.

    The Full Court decisions in BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199 at [15]-[17] (the Court) and RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32]-[33] (the Court) establish that a decision-maker does not have to speculate on whether a non-citizen who is entitled to apply for a protection visa will be successful in that application.

    On the specific topic of protection visas, there may be some tension between BFMV and RRFM, on the one hand, and DQM18 v Minister for Home Affairs [2020] FCAFC 110; (2020) 278 FCR 334 at [107]-[108] (Mortimer and Bromberg JJ), on the other: see SPFH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 97 at [120] (Murphy J). However, the approach in BFMV and RRFM is entirely appropriate when, as here, the relevant power that would lead to the Applicant’s removal to a third country is entirely at the discretion of the Minister, on grounds that do not appear in the Act, and will require the approval of the third country. That is quite unlike the situation where it can be said that the prospect of a non-citizen being granted a protection visa is “vanishingly small”: see SPFH at [120].

34    Here, the Tribunal found that the removal of the Applicant to a third country was not reasonably foreseeable (even if it was a legal possibility), and approached ties to the community and best interests of minor children on the basis that the Applicant would not be removed. That approach is consistent with DVRL at [54], where the Full Court held that the Tribunal was required to consider risk to the community by reference to the statutory outcomes that are “realistically available”. Further, in ZKDP v Minister for Immigration and Citizenship [2026] FCA 502 at [17], Owens J held that the Tribunal was not required to speculate about the “contingent possibilities” of its decision (in that case, the possibility that ZKDP would be released into the community on a bridging visa, in circumstances where it was uncertain whether he was a member of the NZYQ cohort). Owens J stated further that removal to Nauru was not a legal consequence of the Tribunal’s decision, and was “too remote and speculative a possibility otherwise to require consideration as part of the consideration of whether the cancellation of [ZKDP]’s visa should be revoked”: ZKDP at [21] (emphasis added). The Applicant submits that ZKDP is distinguishable because it was uncertain whether ZKDP was a member of the NZYQ cohort, but that is only a difference of degree: removal to a third country is also a contingent possibility in this case, because it depends on the future exercise of discretionary non-statutory powers by the Minister. The Tribunal was not required to speculate on whether the Minister would take steps to have the Applicant removed to a third country, if the Applicant were granted a BVR on his release from prison (which would occur quite some time after the Tribunal’s decision). The Applicant’s removal would also require the approval of the third country.

35    For these reasons, the Tribunal did not fail to consider the representations put by the Applicant on the impact of third country removal when considering the Applicant’s ties to Australia, and the best interests of minor children. The Tribunal’s analysis of these matters was premised on its finding elsewhere that removal to a third country was not a consequence of its decision, but would depend on the future exercise of discretionary powers. Ground 2 is also rejected.

Ground 3:    Whether the Tribunal was required to compare the risk of reoffending if the visa were reinstated vs if the visa remained cancelled

36    Ground 3 contends that the Tribunal failed to assess and compare, as required by para 8.1.2 of Direction No 110, both the risk to the Australian community associated with revoking the cancellation of the Applicant’s visa and the risk associated with refusing to revoke that cancellation (in which case the most probable outcome would be that the Applicant would be released into the community on a BVR). This argument relies on the Full Court decision in DVRL. The Minister formally submits that DVRL is wrongly decided, but accepts that it is binding on me.

37    DVRL (Full Court): In DVRL, the Tribunal refused to grant DVRL a protection visa under s 501(1) of the Act. The Tribunal accepted that the immediate and operative consequence of a refusal decision was that DVRL would remain living in the Australian community on a bridging visa (see DVRL at [162]). Lenehan J (with Perry and Stellios JJ agreeing) held that the Tribunal had “refused to do the very thing that [Direction No 110] required”, by failing to ask whether the level of risk of reoffending if DVRL remained on a bridging visa was higher than the risk posed if the protection visa was granted (DVRL at [172]). The relevant parts of Lenehan J’s reasons are as follows:

    The “risk” to the community referred to in cl 8.1 and 8.1.2 is not limited to the situation where the non-citizen is granted a permanent visa, but requires the decision-maker to have regard to any risk to the community, including the risk that follows from a “negative” outcome for the non-citizen (DVRL at [71]; see also [82]).

    If a person cannot be segregated from the community because of the constitutional constraints in NZYQ, Direction No 110 requires that the decision-maker assess the risk of each of the available decisional outcomes (DVRL at [74]). In particular, the decision-maker is required to turn their mind to each of the matters specified in cl 8.1.2(2) in assessing that risk (DVRL at [79]).

    There may be situations where the Tribunal is “unable to reach a state of satisfaction that either decisional outcome makes much of a difference in terms of risk” (DVRL at [88]). But that conclusion:

… may itself be significant: it may tend to suggest that those matters bearing on risk are of lesser weight, or even “neutral”, for the purposes of weighing the various evaluative factors required by [Direction No 110].

38    Tribunal’s reasons (risk to the Australian community): In this case, the Tribunal considered risk to the community under cl 8.1.2 of Direction No 110 in ART [43]-[62]. The Tribunal addressed the possibility of the Applicant being released on parole as follows.

    The Tribunal did not accept the Applicant’s contention that restoring his permanent visa was a precondition to applying for parole, and that non-revocation would result in him serving his full sentence. The Tribunal understood the “path of logic” advanced by the Applicant to be that “supervised release on parole under a permanent visa is preferable in a recidivism sense to unsupervised release on a temporary visa such as a BVR”. The Tribunal stated there was no expert corroboration of this claim (ART [48]).

    Later, the Tribunal stated that the Applicant’s submission that his supervised release on parole on a permanent visa is preferable in a recidivism sense to unsupervised release on a temporary visa was “speculative and unsupported by expert evidence”. That included “because of uncertainty about when [the Applicant] might be released, which could be more than four years after the Tribunal’s decision” (ART [58]).

39    In considering legal consequences of its decision, the Tribunal stated that conditions attached to a BVR “can be quite restrictive, have a compliance burden, and possible prosecution if breached”, and that the holder of a BVR becomes a “pathway removal [non-]citizen” who could be removed to a third country if that country decided to approve the Australian Government’s request for the non-citizen to enter and remain (ART [92](a)(ii)).

40    As noted, the Tribunal found that the very serious nature of the Applicant’s crimes was coupled with a real risk of reoffending, which may cause devastating harm. That meant the protection of the community consideration weighed “very substantially” against revocation (ART [62]).

41    Did the Tribunal commit the DVRL error? This case is factually different from DVRL in three important ways:

    First, the Tribunal here did turn its mind to whether there would be a difference in the level of risk between the Applicant being released on parole (on his permanent visa), and being released on a BVR (see ART [48] and [58], summarised above).

    Second, in DVRL the Tribunal was presented with sophisticated arguments and evidence on the comparative difference in risk of DVRL being released on a permanent visa and being released on a BVR, but the Tribunal refused to engage in any comparative exercise (see DVRL at [104]-[110], [135]-[136]). Here, by contrast, there was an undeveloped assertion that the risk of re-offending would be lower if the Applicant’s visa were reinstated, because that would allow him to be released on parole rather than released unsupervised. The Tribunal did not accept that assertion (ART [48] and [58]).

    Third, and crucially, the Applicant here was not going to be released into the community immediately after the Tribunal’s decision, but rather was going to spend an extended period in prison before his release (between 16 months and more than four years from the date of the Tribunal’s decision). That is very different from DVRL, where the immediate and operative consequence of the Tribunal’s decision was that DVRL would remain in the community on a bridging visa, as he had been since September 2024 (see DVRL at [162], read with [12]-[17]).

42    Tribunal here did turn its mind to whether any difference in the levels of risk: The third matter set out above explains why the Tribunal could not make a finding as to the level of risk of reoffending if the Applicant were released into the community on a BVR. Although the Tribunal found that it was probable that the Applicant would ultimately be released from prison on a BVR (ART [79]), the level of risk of re-offending in that situation would be affected by what conditions were attached to the Applicant’s BVR. That in turn would depend on what legislation or regulations were in place at that time, in what the Tribunal described as “a fast-moving area of the law” (ART [92](a)(ii), read with [58]). By contrast, in DVRL, the BVR conditions to which DVRL would be subject were a known quantity.

43    Accordingly, the Tribunal here did not commit the particular error identified in DVRL, where the Tribunal did not engage in any comparative analysis of the level of risk at all. This case is also different from cases such as FKCV v Minister for Immigration and Citizenship [2026] FCA 864, where the Tribunal’s reasoning on protection of the community did not demonstrate any awareness that the applicant in that case might be released into the community on a BVR, and its reasoning on legal consequences did not demonstrate any awareness of the basis on which the applicant might live in the community if a BVR were granted: FKCV at [43]-[44] (Jackson J).

44    Is ART [62] consistent with DVRL at [88]? The Applicant contends, however, that even if the Tribunal began a consideration of the issue of comparative risk, it could not rationally have reached the finding in ART [62] consistently with the reasoning in DVRL, particularly at [88].

    Implicit in ART [48] and [58] is that the Tribunal could not make a finding as to the level of risk of the Applicant re-offending if he were released on a BVR, compared with him being released on parole, because of the uncertainty as to when he would be released from prison (and resulting uncertainty as to the conditions of any BVR). But the Tribunal found in ART [62] that the Applicant constituted a “real recidivism risk”, and that protection of the community “weigh[ed] very substantially” against revocation.

    In DVRL at [88], Lenehan J stated that, if a decision-maker was unable to be satisfied that there was much of a difference in terms of risk between the decisional outcomes (here, the Applicant being released from prison on a permanent visa or released on a BVR), that “may” be significant because it “may tend to suggest that those matters bearing on risk are of lesser weight, or even ‘neutral’”.

45    The statement in DVRL at [88] is of course obiter dicta, and expressed provisionally (“may” tend to suggest). Lenehan J emphasised elsewhere that Direction No 110 requires that the s 501CA discretion be exercised “by reference to the specific circumstances of the individual case” (DVRL at [60], see also [62]). So a decision will not be illogical or irrational simply because the Tribunal reaches a different conclusion of fact from the general course outlined in DVRL at [88]. It is necessary to consider the particular circumstances of each case.

46    In this case, as already noted, there will be an extended period of time between the Tribunal’s decision and the Applicant’s release into the community. The Tribunal could not be confident as to what form the conditions to the BVR would take by the time of the Applicant’s release from prison. It is true, as the Applicant contends, that ART [79] shows that the Tribunal was sufficiently sure that the Applicant would be released into the community on a BVR. But the relevant uncertainty, affecting the comparative risk of reoffending, relates to the conditions to which the Applicant’s BVR might be subject. The Minister points out that, a little over a year before the Tribunal’s decision, the High Court held in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40; (2024) 99 ALJR 1 that mandatory curfew and electronic monitoring BVR conditions were constitutionally invalid. By the time of the Tribunal’s decision, the replacement BVR conditions were themselves being challenged (and were later held invalid by the High Court in EGH19 v The Commonwealth [2026] HCA 7; (2026) 100 ALJR 400). Therefore, as the Minister submits, uncertainty as to the applicable BVR conditions at the time of the Applicant’s release was a real issue at the time of the Tribunal’s decision.

47    Lenehan J states in DVRL at [88] that risk may be given a neutral weight if the decision-maker is unable to be satisfied that there was much of a difference between the decisional outcomes in terms of risk. However, his Honour is not meaning to suggest that a decision-maker must treat the risk of re-offending as a neutral factor unless the decision-maker is positively persuaded that there is a meaningful difference in the level of risk of re-offending between a revocation decision and a non-revocation decision. That is because the power to revoke a cancellation decision under s 501CA(4)(b)(ii) is only engaged if the decision-maker is “satisfied … that there is another reason” to do so; that is, the decision-maker must feel an actual persuasion towards revoking the cancellation: see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [64] (Gageler J), cited in DVRL at [88]. The significance of that last point is that the Tribunal here was not persuaded that releasing the Applicant on a permanent visa (on parole) would reduce the risk of reoffending, as compared to the risk if he were released on a BVR, given that the Applicant’s release from prison could be some years after the Tribunal’s decision (see ART [48], [58]).

48    Can community protection be given significant weight even if risk is a neutral factor? The Minister contends that DVRL at [88] only indicates that the particular issue of risk might be neutral if a decision-maker is not satisfied that there is a meaningful difference between the level of risk between a non-citizen being released into the community on a permanent visa, and being released on a BVR. The Minister contends that, in that situation, a decision-maker might still be able to give the protection of the community consideration significant weight in favour of revocation, even if the level of risk to the community between revoking the cancellation of a non-citizen’s visa and non-revocation, by itself, is a neutral factor.

49    XKTK (Full Court): The Minister’s argument relies on XKTK v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 115; (2025) 311 FCR 539. In XKTK, the Minister cancelled XKTK’s visa under s 501BA of the Act, even though XKTK could not lawfully be detained because there was no real prospect of removing him in the reasonably foreseeable future. XKTK argued that the Minister’s decision to give substantial or heavy weight to the protection of the community and community expectations was legally unreasonable, because the Minister had not explained how cancelling XKTK’s visa would promote community protection or expectations in circumstances where XKTK would remain in the community (albeit on a BVR). The Full Court rejected that argument.

    Wheelahan J held that detention or actual removal from Australia was not the only way of protecting the Australian community. In that case, cancelling XKTK’s permanent visa meant that he remained in the community on a visa (a BVR) that made him liable for removal, even if removal was not reasonably practicable at the time of the Minister’s decision (XKTK at [51]).

    To similar effect, Stewart and Needham JJ held that there was no illogicality in attributing significant weight to protecting the community when deciding to cancel a non-citizen’s visa, in circumstances where the non-citizen will remain in Australia but on a visa that is designed to facilitate their removal when practicable (XKTK at [113]).

50    In DVRL at [176], Lenehan J stated that XKTK (and Minister for Immigration and Multicultural Affairs v SSVJ [2026] FCAFC 45, which also concerned s 501BA) were distinguishable, because in DVRL the Tribunal was bound to apply Direction No 110 and had not done so, and arguments of this kind were not advanced in XKTK and SSVJ. However, the reasoning in XKTK was treated as relevant to a decision made by the Tribunal under s 501CA in ZTBL v Minister for Immigration and Citizenship [2026] FCAFC 48 at [89] (the Court), again in obiter dicta, in a decision handed down after argument in DVRL.

51    Reconciling DVRL and ZTBL: It is common ground that neither DVRL at [88] nor ZTBL at [89] determines the issue before me, because both Full Court statements were obiter dicta. There is perhaps some tension between these statements.

    DVRL held that a decision-maker must compare the level of risk of a person being released into the community on a permanent visa or BVR, and stated that a finding that there is not much difference in the comparative level of risk may mean that the matters bearing on risk are neutral; whereas

    ZTBL stated that it is not necessarily illogical or irrational to give community protection significant weight when deciding not to revoke the cancellation of a non-citizen’s visa, even though the non-citizen will nonetheless remain in Australia on a BVR, because the non-citizen will remain liable to be removed from Australia, even if their removal is not reasonably practicable at the time of the decision.

52    The reasoning in ZTBL is supported by Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at [27], where Gageler CJ, Edelman and Jagot JJ held that there was no inconsistency between giving community expectations significant weight against revoking cancellation, on the one hand, and recognising that (despite the visa remaining cancelled) the non-citizen would remain in the Australian community for so long as there was no real prospect of removal of him from Australia becoming practicable in the reasonably foreseeable future, on the other. Their Honours observed that a BVR includes mandatory conditions regulating a non-citizen’s conduct, and ceases by operation of s 76AAA of the Act once removal of the non-citizen from Australia is reasonably practicable because of a third country granting the non-citizen a right to enter and remain in that country.

53    To favour ZTBL at [89] in this respect does not detract from the major conclusion in DVRL; namely, that Direction No 110 requires a decision-maker to compare the risks to the community of a person in the NZYQ cohort being released on a permanent visa, and being released on a BVR. ZTBL indicates that the general observations in DVRL at [88] are not the only form of rational reasoning if the decision-maker finds that there is not a significant difference in the comparative level of risk in this situation.

54    Reconciling ZTBL with DXJL and ZKDP: The Applicant submits, however, that the ZTBL approach gives rise to a different tension, this time with DXJL and ZKDP. This second tension is said to arise from the facts that, under ZTBL, a decision-maker may have regard to the bare possibility of a non-citizen being removed from Australia (even if it is not reasonably foreseeable) when assessing protection of the community under cl 8.1 of Direction No 110; but, under DXJL and ZKDP, a decision-maker need not have regard to the bare possibility of a non-citizen being removed from Australia (if it is not reasonably foreseeable) when assessing other primary considerations, such as ties to the community and best interests of minor children under cls 8.3 and 8.4 of Direction No 110.

55    Any apparent tension reflects only that the illogicality and irrationality ground of review, and legal unreasonableness, leave an area of decisional freedom for administrative decision-makers.

    In some circumstances, a decision-maker may be permitted to consider consequences that go beyond what is reasonably foreseeable at the time of decision, as long as the reasoning is not illogical or irrational, or legally unreasonable. ZTBL and Plaintiff S22/2025 indicate that it is not illogical or irrational, or legally unreasonable, to find that making a non-citizen available for removal on a BVR (rather than remaining in Australia on a permanent visa) is relevant to community protection and community expectations, by itself, even if removal is not reasonably foreseeable at the time of decision. (This comparative risk calculus might be different if there was evidence before a decision-maker that, in the meantime, having the person remain in Australia on a BVR actually increased the risk of re-offending, by denying the non-citizen access to services that could reduce that risk.)

    At the same time, a decision-maker is not required to go beyond consequences that are reasonably foreseeable when applying the considerations in Direction No 110. In this case, it was permissible for the Tribunal to limit its consideration of ties to Australia and best interests of minor children to the impacts of foreseeable consequences, which in this case did not include removal to Nauru.

56    Conclusions on Ground 3: The Tribunal considered that it was probable that the Applicant would be placed on a BVR, although its precise form could not be known, and he would therefore become a “removal pathway [non-]citizen” (see ART [92](a)(ii), read with ART [79]). The Tribunal was not constrained by DVRL at [88] to treat the risk of reoffending as a neutral factor, when there was a “real risk” of reoffending, which would cause “devastating harm”. Consistently with XKTK and ZTBL, it was open to the Tribunal in this situation to give this primary consideration very substantial weight.

Conclusion

57    The Applicant’s grounds of review are rejected. The further amended originating application is therefore dismissed with costs.

Associate:

Dated:    8 July 2026