Federal Court of Australia

MFKF v Minister for Immigration and Citizenship [2026] FCA 1108

ORDERS

THE COURT ORDERS THAT:

1.    The review application be allowed.

2.    The decision of the second respondent dated 17 February 2026 to affirm the decision of the first respondent to refuse to grant a protection visa to the applicant be quashed, and the matter be remitted for determination according to law.

3.    There be liberty to the applicant to apply as to mandamus.

4.    The first respondent is to pay the applicant’s costs of and incidental to the review application.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    This is an application for judicial review of a decision made by the second respondent (Tribunal) on 17 February 2026 affirming a decision of a delegate of the first respondent (Minister) to refuse the applicant’s application for a Protection (Class XA) (Subclass 866) visa (Protection Visa) on character grounds pursuant to section 501(1) of the Migration Act 1958 (Cth) (Act).

2    The central issue for determination in this proceeding is the nature of the inquiry required by Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110) to address the protection of the Australian community (being a primary consideration under para 8(1) of Direction 110), following the decision of the Full Court of this Court in Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73 (Lenehan J, with whom Perry and Stellios JJ agreed).

3    By reason of the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; [2023] HCA 37, the applicant has remained in the community on a Class WR Bridging R (Removal Pending) (Subclass 070) visa (BVR) pending his removal from Australia when possible. The conditions of the BVR include an obligation for the applicant to assist with his removal from Australia and that he must not work with minors.

4    For the following reasons, given the applicant is a member of the NZYZ cohort and the reasoning of the Full Court of this Court in DVRL, I have concluded that the Tribunal erred in not undertaking a comparison of decisional outcomes in its consideration of the protection of the Australian community primary consideration in Direction 110.

B.    Background

5    The applicant is a 50-year-old male citizen of Sierra Leone. He was granted a partner visa in 2011 and, subsequently, a Resident Return (Subclass 155) visa in 2017.

6    In 2018, the applicant’s Resident Return visa was cancelled due to various sexual offences including offences involving children. His applications for review of the delegate’s decision to cancel his Resident Return visa were unsuccessful.

7    In November 2019, the applicant applied for a Protection Visa. That application was initially refused by the delegate on its merits but in February 2022, the Tribunal remitted the application for a Protection Visa back to the Department of Home Affairs with a finding that the applicant satisfied section 36(2)(a) of the Act.

8    On 28 January 2025, the application was refused by the delegate on character grounds under section 501(1) of the Act. As a result, the delegate recorded that any other visas held by the applicant were cancelled by law pursuant to s 501F(3) of the Act. The applicant was subsequently granted a BVR under reg 2.25AB of the Migration Regulations 1994 (Cth).

9    On 5 February 2025, the applicant applied to the Tribunal for review of the delegate’s decision.

10    On 15 April 2025, the Tribunal (differently constituted) affirmed the delegate’s decision.

11    On 14 August 2025, this Court set aside the Tribunal’s decision and remitted the application back to the Tribunal.

12    On 17 February 2026, after being remitted by this Court, the Tribunal again affirmed the delegate’s decision not to grant a Protection Visa to the applicant.

C.    Legal principles

13    Section 499 of the Act relevantly provides:

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a) the performance of those functions; or

(b) the exercise of those powers.

[…]

(2A) A person or body must comply with a direction under subsection (1).

14    Section 501(1) of the Act provides:

 (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

15    Relevantly for present purposes, s 501(6)(e) of the Act provides that a person does not pass the character test if:

(e) a court in Australia or a foreign country has:

(i) convicted the person of one or more sexually based offences involving a child; or

(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction[.]

16    Direction 110 is a direction given under s 499 of the Act. It was made by the then Minister for Immigration, Citizenship and Multicultural Affairs on 7 June 2024, and commenced on 21 June 2024. It gives guidance to decision-makers relevantly exercising power under s 501 of the Act. It sets out five primary considerations in s 8 and three other considerations in s 9, all of which “a decision-maker must take into account… where relevant to [a] decision” (s 6 of Direction 110). The primary considerations include the “protection of the Australian community from criminal or other serious conduct” (protection of the community consideration). Paragraph 7(2) provides that the protection of the community consideration “is generally to be given greater weight than the other primary considerations”.

17    Paragraph 8.1.2(2) of Direction 110 provides that in assessing the risk that a non-citizen poses to the Australian community, a decision maker must cumulatively have regard to:

a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

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 reoffending; 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

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.

18    As the Full Court of this Court stated in DVRL at [64] – [65] (Lenehan J, with whom Perry and Stellios JJ agreed):

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.

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.

(Emphasis in original.)

19    When considering the protection of the Australian community, the Tribunal is required to consider (a) the nature and seriousness of the non-citizen’s conduct to date (para 8.1.1 of Direction 110); and (b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction 110).

20    It can readily be accepted, as submitted by the applicant, that the inquiry required by para 8.1.2 of Direction 110 is prospective. The forward-looking or predictive nature of this exercise can be understood by the need to make an assessment of “the likelihood” of further criminal or other serious conduct (sub-para (2)(b)), and importantly “whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay” (sub-para (2)(c)).

D.    Decision of the Tribunal

21    The Tribunal addressed the protection of the community consideration at [48] to [96] of its Reasons for Decision (DR).

22    The Tribunal considered the evidence relied upon by the applicant concerning his engagement in multiple treatment programmes, his diagnosis and treatment for mental health conditions and his expressions of remorse, shame and insight at his offending.

23    That evidence included evidence from a therapist, Graeme Randall. The Tribunal observed at DR [80] that Mr Randall had stated in his written report dated 11 January 2026, that “if the Applicant was to be provided with a permanent visa, this would provide a level of security that may reduce the risk of criminal or sexual offending, reducing the risk to the community”. In his oral evidence before the Tribunal, Mr Randall stated that “removal of stress would act as a significant protective factor” and the applicant’s “risk of reoffending is at present low but could increase if the Applicant was in the situation where he is fearful for his life or under extreme stress and if there are no supports are [sic] available” (at DR [81]).

24    The evidence also included evidence from a consultant psychologist, Tim Watson-Munro. In his written report dated 4 December 2025, Mr Watson-Munro stated that the applicant had “made strong progress in terms of rehabilitation and has expressed ongoing remorse” and that in his view “the risk of the Applicant reoffending can be considered as low” (at DR [82]). In his oral evidence before the Tribunal, Mr Watson-Munro referred to the applicant’s “anxiety over being removed from Australia and the impact of separation from his partner and child” and “confirmed that the risk of offending was low and remote if the Applicant maintains treatment, remains drug and alcohol free, and maintains employment and other protective factors, but the risk factor would increase if the Applicant was to relapse, in particular into drug use” (at DR [83]).

25    After considering the evidence relied upon by the applicant, the Tribunal concluded at DR [95]-[96]:

The Tribunal finds that the risk of reoffending is low (as long as treatment is continued). That is consistent with the professional opinions expressed by various health professionals. However, the Tribunal is of the view that sexual offending against others, and in particular, any form of sexual offending against children, constitutes such conduct that, if it were to be repeated, it is so serious that any risk that it may be repeated is unacceptable.

Thus, despite the Tribunal’s finding that there is a low risk of reoffending, the Tribunal finds that protection of the community weighs strongly in favour of exercising discretion to refuse to grant the visa.

26    The Tribunal acknowledged in the course of addressing the legal consequences of the decision consideration in para 9.1.1(2) of Direction 110 that the applicant was the subject of a protection finding and therefore the applicant could not be removed to his home country (at DR [137]). The Tribunal then relevantly observed at DR [139]-[140]:

Evidence before the Tribunal indicates that the Applicant has been granted a Bridging R visa (BVR). If the Applicant is not granted a substantive visa, he is likely to remain a holder of BVR unless there is a removal pathway available. This is set out in the Migration Amendment Act 2024 (Cth) and the Migration Amendment (Removal and Other Measures) Act (Cth) 2024 which provide that a BVR may cease to be in effect once a mandatory notice is given to a visa holder by the Minister that section 76AAA applies to the visa holder. The Applicant would be required to cooperate with efforts to ensure his prompt and lawful removal and may face a mandatory sentence of imprisonment if he does not cooperate with the Minister’s direction or if there is otherwise a breach of visa conditions. The Applicant states that he would not cooperate with his removal, which would lead to prolonged immigration detention. In the absence of any evidence concerning steps being taken to remove the applicant, the Tribunal cannot speculate as to what will take place.

The Tribunal accepts that if the Applicant’s visa is refused, he will not, practically, have the possibility of seeking other Australian visas in the future. The Tribunal also accepts that if the visa is not granted, the Applicant will face the uncertainty of his visa status, given the possibility of removal and the Tribunal accepts that this in itself may cause hardship to the Applicant and others.

27    The Tribunal found that the legal consequences of the decision consideration weighed “somewhat in favour of the visa grant” (at DR [141]).

28    The Tribunal ultimately placed significant weight on the protection of the community consideration in deciding to affirm the decision of the delegate not to grant the Protection Visa. The Tribunal acknowledged that it had formed the view that there was a low risk of the applicant reoffending, particularly having regard to the evidence of health professionals, and it accepted “the evidence that there is no possible lower classification of risk” (at DR [156]).

29    The Tribunal reasoned, however, that given the applicant’s past offending had involved sexual violence against children and predatory sexual behaviour any “risk of reoffending is unacceptable” and the protection of the community consideration “weighs heavily in favour of the discretion to refuse” (at DR [156]). The Tribunal then stated at DR [160] that given the circumstances of this case it had given “the greatest weight to the protection of the community and the expectations of the community” and that “these considerations outweigh others that weigh in favour of the Applicant”.

E.    Grounds of Review

E.1.    Overview

30    The applicant advances two interrelated grounds of review. First, the applicant contends that the Tribunal failed to undertake the counterfactual analysis set down by the Full Court of this Court in DVRL in considering the mandatory protection of the community consideration. Second, the applicant contends that by reason of the Tribunal’s failure to undertake that counterfactual analysis and the reality that the applicant will remain in the community regardless of the outcome, the finding made by the Tribunal that the protection of the community consideration weighed in favour of refusal of the Protection Visa was illogical, irrational and/or unreasonable.

31    The Minister contends that (a) there was no evidence before the Tribunal that there would be any significant difference in the risk of the applicant reoffending if he remained on a BVR rather than being granted a Protection Visa, (b) DVRL is thus distinguishable from this case, and (c) the statements in DVRL to the effect that if the comparison results in equal risks to the community, the protection of the community must become a neutral factor is only obiter dicta and plainly logically wrong because the BVR retains the possibility of the removal of the applicant and imposes strict conditions to protect the community, particularly children, while he remains in Australia. The Minister also submits that the statements in DVRL concerning neutrality were contrary to the reasoning in XKTK v Minister for Immigration, Citizenship and Multicultural Affairs (2025) 311 FCR 539; [2025] FCAFC 115 applying Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 425 ALR 79, and that the reasoning in DVRL was wrong but accepts that I am bound by the DVRL decision, as a judge at first instance, if the reasoning is ratio decidendi and is not capable of being distinguished, as submitted by the Minister.

E.2.    The reasoning in DVRL is to be applied

32    The reasons for judgment in DVRL were written by Lenehan J, with whom both Perry and Stellios JJ agreed without any further elaboration or qualification. It is therefore convenient hereafter in these reasons to refer to the reasoning of Lenehan J, as the reasoning of the Full Court, rather than as the reasoning of “Lenehan J, with whom Perry and Stellios JJ agreed”.

33    The Full Court observed in DVRL that where a person cannot be “segregated” from the Australian community, either because of exceptions in s 501F of the Act or the constitutional constraints discerned in NZYQ, each of the available decisional outcomes involves some degree of risk to the Australian community (at [74]). It found that in those circumstances, Direction 110 required that the risk of such decisional outcomes be assessed, namely the risk to the Australian community if the applicant remained on a BVR and the risk if the applicant were granted a Protection Visa (at [74]). The Full Court observed that the Tribunal refused to undertake the comparative analysis required by Direction 110, notwithstanding the fact that the case advanced by DVRL made such an analysis centrally relevant (at [80]). It then observed that the primary judge, had “declin[ed] 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” (at [81]). The Full Court disagreed and observed that “Direction 110 does impose a “specific obligation” to assess the risks associated with each available outcome” (at [82]).

34    The Full Court rejected the proposition that the requirement imposed by Direction 110 to evaluate the risk to the community if the protection visa were granted as compared with the prevailing risk arising from the applicant being in the community on a BVR only arose when the non-citizen advanced a positive case that the risk varied between those two outcomes (at [86]). Rather, the Full Court found at [87] that the Tribunal may be required to consider substantial issues raised on the material before it, even when those issues were not addressed by the parties in their submissions, citing the decision of the Full Court in Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55 at [66] (Bromwich and Wheelahan JJ).

35    Of particular significance for present purposes, the Full Court then stated in DVRL at [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 & 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.

(Emphasis in original.)

36    After setting out the parties’ respective contentions on the risk of the applicant reoffending, the Full Court acknowledged that the issue confronting the Tribunal was “a (comparatively) complex one” (at [119]) and then explained at [120] – [121]:

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.

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.

(Emphasis in original.)

37    As explained above, the Minister contends that the reasoning of the Full Court in DVRL that if the risk of reoffending were the same on both decisional outcomes, the protection of the community consideration must be neutral was (a) only obiter dicta, and (b) logically wrong, given the differences between the conditions imposed on the applicant by a BVR compared with a Protection Visa. Given the conclusion by the Full Court in DVRL that the decisional outcomes were not the same, I accept that, strictly speaking, the observations were obiter dicta, but they were considered obiter dicta, consistent with its dispositive reasoning, and were not “plainly wrong as a matter of logic”.

38    I do not understand the Full Court in DVRL to be suggesting that the “risk of reoffending” between decisional outcomes is to be determined independently of and without regard to the specific conditions attached to the particular visas that might be issued under those decisional outcomes. The risk to the community is a predictive and forward-looking exercise, as explained by the Full Court in DVRL. Necessarily, the risk of harm to the community must have regard to the conditions attached to the alternative visas that might be issued to persons falling within the NZYQ cohort. If as a result of that comparison, the Tribunal concludes that, having regard to the facts and circumstances of a particular case, the conditions imposed by a BVR would result in a meaningful reduction in the risk of harm to the community, when compared with the risk if an applicant was granted a Protection Visa, then in no sense would the “risk of reoffending” between the decisional outcomes be neutral.

39    Irrespective of any submissions advanced by an applicant falling in the NZYQ cohort, the task for the Tribunal presented by the protection of the community consideration is to assess the risk to the community of a grant of a Protection Visa to the applicant and then to compare that assessment with its assessment of the risk to the community if the applicant remained on a BVR.

E.3.    This case cannot relevantly be distinguished from DVRL

40    The decision in DVRL cannot relevantly be distinguished on its facts. Accepting that each case necessarily turns on its own facts, there is no reason why the statements of principle in DVRL are not equally applicable to the present case. I accept that the evidence before the Tribunal of a reduced risk of reoffending in DVRL was more focused and persuasive than in the present case. In this case, the evidence did not rise above the evidence of Mr Randall, as summarised by the Tribunal at DR [80] – [81], that the provision of a permanent visa “may” reduce the risk of criminal or sexual offending, and the focus of the evidence of Mr Watson-Munro, and two forensic psychiatrists, Dr Kerrie Eagle and Dr Andrew Ellis, was on ongoing professional treatment rather than visa stress. Nevertheless, the applicant in both DVRL and in this case were persons in the NZYQ cohort, there was no present prospect of either being removed from Australia, and the only decisional outcome available to the Tribunal were that the applicant would remain in the community.

41    Moreover, the apparent absence of any argument below to the effect that a Protection Visa would reduce the risk of the applicant reoffending is not determinative, given the protection of the community consideration is a mandatory consideration: DVRL at [87] – [88], citing Hong at [66] (Bromwich and Wheelahan JJ).

E.4.    This case can be relevantly distinguished from XKTK and Plaintiff SS22/2025

42    The Minister contends that the fact that XKTK concerned a personal decision of the Minister was not sufficient “to distinguish it where considerations of logic and rationality are concerned”.

43    In XYTK, Stewart and Needham JJ in their joint reasons summarised the principles to be applied to a determination of jurisdictional error for unreasonableness, illogicality or irrationality at [87]-[94] and then reasoned at [114]-[115]:

Although the Minister’s reasons in the present case are open to the criticism that they do not explain how or why the considerations of the expectation of the Australian community and protection of the community support non-revocation in circumstances where the appellant would continue to reside in the community, it cannot be inferred that the Minister was unaware that that would be the result — that understanding was made explicit, albeit in another part of the reasons. Also, reading the reasons as a whole and not with an eye finely attuned for error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), it cannot be inferred from the Minister’s use of the terminology of “type of visa” that he was unaware that the appellant would reside in Australia under a BVR — it was the conditions to be attached to the BVR that still had to be decided; in that sense, it was the “type” of BVR on which the Minister was to be advised by the Department. Also, as explained, a BVR is a visa for removal from the country and offers some protection to the community, matters which it cannot be inferred that the Minister was unaware of. On that basis, there was no irrationality or unreasonableness in the relevant sense in the Minister’s reasoning with reference to community expectations and protection.

Although Plaintiff S22/2025 does not establish any new principle that governs the present case, the Court’s reasoning to a conclusion in respect of circumstances not materially different from the circumstances of the present case demonstrate the proper path to a conclusion in the present case. None of the various grounds for distinguishing Plaintiff S22/2025 relied on by the appellant is material. Ultimately, the reasoning in Plaintiff S22/2025 governs the outcome in this case.

44    The reasoning of their Honours was directed at a claim advanced for legal unreasonableness, not the materially different claim advanced in this proceeding by the applicant in review ground 1 that the Tribunal failed to undertake a necessary process of reasoning by way of considering the comparative counterfactual to comply with Direction 110.

45    The Minister’s reliance on Plaintiff S22/2025 is also misplaced. That case was concerned with a ground of review based on an unreasonableness challenge to the Tribunal’s consideration of the expectations of the community consideration not the protection of the community consideration. The precise basis on which a person falls within the NZYQ cohort in the community is plainly relevant to the protection of the community consideration but not to the expectations of the community consideration. As the High Court explained in Ismail v Minister for Immigration, Citizenship & Multicultural Affairs (2024) 280 CLR 265; [2024] HCA 2 at [51] – [52] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ), in relation to a predecessor to para 8.5(4) of Direction 110 (being para 8.4(4) of Direction No 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA), the expectations of the community consideration “does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate”. Rather, the expectations of the community consideration is subject to a societal norm mandated by para 8.5(1) of Direction 110 that the Australian community expects non-citizens to obey Australian laws and if non-citizens engage in serious misconduct, or there is an unacceptable risk that they may do so, the Australian community “expects the Government to not allow such a non-citizen to enter or remain in Australia”.

46    The protection of the community consideration is not subject to any equivalently prescribed societal norm under Direction 110. Findings by the Tribunal that an applicant had engaged in serious misconduct or there was “an unacceptable risk” that an applicant might do so, may well be a sufficient process of reasoning for the Tribunal to reach a conclusion with respect to the expectations of the community consideration given the societal norm direction in para 8.5(1). For an applicant in the NZYQ cohort, however, such findings independently from any counterfactual process of reasoning as explained in DVRL would not be sufficient to satisfy the protection of the community consideration in Direction 110.

E.5.    The Tribunal did not undertake the necessary process of reasoning explained in DVRL

47    After concluding that the risk of reoffending by the applicant, if treatment were continued, was low, the dispositive reasoning of the Tribunal with respect to the protection of the community consideration was limited to a finding that “any form of sexual offending against children, constitutes such conduct that, if it were to be repeated, it is so serious that any risk that it may be repeated is unacceptable”. On that reasoning, and only on that reasoning, the Tribunal then found “that protection of the community weighs strongly in favour of exercising discretion to refuse to grant the visa”.

48    The Tribunal did not undertake any comparison between the risk to the Australian community of the applicant remaining in the community on a BVR and the risk to the Australian community if he were granted a Protection Visa. In the absence of such comparison, and consistently with the reasoning in DVRL, the Tribunal did not expose any process of reasoning sufficient to conclude that the protection of the community consideration weighed strongly in favour of refusing to exercise the discretion to grant a Protection Visa to the applicant.

49    The seriousness of the offending provided powerful support for the Tribunal’s finding that the expectations of the community consideration weighed strongly in favour of exercising the discretion to refuse to grant a Protection Visa to the applicant, but it could not, without a comparison of decisional outcomes, assist in weighing the protection of the community consideration.

50    For these reasons, the Tribunal in this case, as the Tribunal in DVRL, failed to follow the process of reasoning imposed by Direction 110. As the High Court explained in LPDT v Minister for Immigration (2024) 280 CLR 321 at [33] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ), 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.

51    The Tribunal’s only reference to the terms of the applicant’s BVR was in the context of its consideration of the legal consequences of the decision consideration in para 9.1.1(2) of Direction 110 and was limited to a finding that if the applicant’s application for a Protection Visa was refused, the applicant would not practically have the option of seeking other Australian visas in the future and would face the possibility of removal, given the uncertainty of his visa status, and this, in itself, “may cause hardship to the Applicant and others” (at DR [140]). On that basis, the Tribunal then concluded at DR [141], that the legal consequences of the decision consideration “weighs somewhat in favour of the visa grant”.

52    The Minister contended, relying on the observations made by the Full Court in XKTK at [114], applying Plaintiff S22/2025, that “there is an obvious protective factor of the BVR by reason of the eventual removal from the Australian community, and the conditions”. The Minister submits that the Tribunal at DR [139] – [140], in the context of the legal consequences of the decision consideration, was “clearly aware of the conditions” of the BVR because it mentioned these conditions in “exactly the same way the minister” did in XKTK, specifically, the requirement to cooperate with efforts to secure the applicant’s removal and the absence of a practical possibility of seeking other visas.

53    While I accept that the decision of the Tribunal has to be read as a whole and without a fine tooth-comb and an eye finely attuned for error, as was made clear in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 277 (Brennan CJ, Toohey, McHugh and Gummow JJ), that principle cannot overcome a failure of a Tribunal to conduct a process of reasoning that was necessary to consider and determine the weight to be given to a mandatory consideration in Direction 110. As the Full Court observed in DVRL at [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.

54    It may well have been open for the Tribunal to reason that the additional protections offered by a BVR over that provided by a Protection Visa would result in a reduced risk of reoffending and, therefore, risk to the community, and thus provide an intelligible reason to conclude that the protection of the community consideration weighed strongly in favour of exercising the discretion to refuse to grant the Protection Visa to the applicant. No such reasoning, however, was disclosed in the Tribunal’s reasons. As made pellucid in DVRL at [141], this Court cannot speculate on a reasoning process that was not undertaken by a decision-maker and cannot reconstruct a reasoning process in order to reach a result that would permit a decision-maker’s decision to be upheld.

55    The Tribunal’s reasoning that the protection of the community consideration weighed strongly in favour of exercising the discretion to refuse to grant a Protection Visa to the applicant because any risk of reoffending by the applicant was too great did not address the incontrovertible fact that the applicant would remain in the community whatever decisional outcome was reached by the Tribunal. In order to undertake the process of reasoning necessary to give effect to the requirement in Direction 110 in addressing the protection of the community consideration for an applicant in the NZYQ cohort, the Tribunal was required to undertake the counterfactual analysis explained in DVRL.

E.6.    The Tribunal’s failure was material

56    Given the Tribunal’s observations at DR [160] that it had decided to give the greatest weight to the protection of the community consideration and the expectations of the community consideration, and that these considerations outweighed other considerations in favour of the applicant, I am satisfied that the Tribunal’s failure to undertake the counterfactual analysis explained in DVRL was material. In the light of the weight given by the Tribunal to the protection of the community consideration in reaching its decision, I am satisfied that it is possible and “not fanciful or improbable, that the decision that was made in fact could have been different if the error had not occurred”: LPDT at [36].

E.7.    Not necessary to consider ground 2

57    It is unnecessary to consider the second ground of review that the conclusion as to weight to be given to the protection of the community consideration was irrational. The applicant, by his counsel, conceded that if the first ground of review were unsuccessful, the applicant could not succeed on the second ground of review. The concession was rightly made. Success on the first ground was a necessary premise to establish the second ground. The alleged irrationality was the significant weight finding in circumstances where the Tribunal had erroneously failed to carry out a counterfactual analysis of the decisional outcomes.

F.    Disposition

58    For the foregoing reasons, the review application should be allowed. The decision of the Tribunal should be quashed, and the matter should be remitted for determination according to law. The effect of these orders is that there will need to be a new hearing and decision by the Tribunal. Given the applicant has been successful, the Minister is to pay the costs of the applicant.

59    The applicant also sought mandamus, but there is no present reason to fear that there will not be a prompt redetermination. I will reserve liberty, however, for the applicant to apply in respect of that aspect of the review application.

Associate:

Dated:    12 August 2026