Federal Court of Australia

LKQD v Minister for Immigration and Citizenship [2026] FCA 1270

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

3.    The name of the first respondent be amended to “Minister for Immigration and Citizenship”.

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

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION AND BACKGROUND

1    This is an application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Class XA Protection visa (Protection visa) pursuant to s 501(1) of the Migration Act 1958 (Cth) (Act).

2    The applicant was born in January 1979 and is a national of South Sudan. He came to Australia in May 2004 holding a Class XB Refugee visa (Refugee visa), which was automatically cancelled in February 2015 pursuant to s 501(3A) of the Act. The applicant sought revocation of the cancellation, but that application was refused.

3    In February 2017, he applied for a Protection visa. In August 2017, a delegate of the Minister concluded that the applicant was not eligible for a Protection visa pursuant to s 36(2C) of the Act because he was considered a danger to the Australian community. In August 2018, the Tribunal, differently constituted, affirmed that decision. The applicant successfully sought judicial review, and the matter was remitted for reconsideration. In October 2022, the Tribunal, again differently constituted, set aside the decision under review and determined that the applicant was not a danger to the Australian community.

4    Less than a year after that assessment by the Tribunal, the applicant was given notice that refusal of the Protection visa was being considered pursuant to s 501 because, having regard to his multiple criminal convictions, he might not pass the character test. After receiving representations from the applicant, in November 2024 a delegate determined that the applicant did not pass the character test and exercised the discretion under s 501(1) to refuse the Protection visa.

5    Then on 24 January 2025, the Tribunal affirmed that decision: LKQD and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 33 (TR).

6    The principal issue in this proceeding arises from an unusual feature of the applicant’s circumstances. Notwithstanding the refusal of the Protection visa, the applicant cannot be removed to his home country and, there being no presently identified arrangement for his removal to a third country, remains in the Australian community as the holder of a Bridging (Removal Pending) visa (BVR). The Tribunal found that the applicant presented a high risk of reoffending irrespective of his visa status and the availability of supports under the National Disability Insurance Scheme (NDIS), but nevertheless treated that risk as weighing very heavily in favour of refusing the Protection visa. The principal question is whether, in doing so, the Tribunal performed the task required of it in considering the protection of the Australian community under Direction No 110 made pursuant to s 499 of the Act (Direction 110).

7    The application first came before me for final hearing on 26 August 2025. During the course of argument, attention was drawn to the then recent decision of Bromwich J in DVRL v Minister for Immigration and Citizenship [2025] FCA 876, which concerned the assessment of risk to the Australian community in circumstances where, as here, refusal of a visa would not result in the non-citizen leaving Australia. It became apparent that the reasoning in DVRL bore upon an issue arising from the Tribunal’s reasons which had not been squarely raised by the grounds as then formulated. The proceeding was accordingly adjourned part-heard to permit the applicant to amend his case and the parties to address the issue properly.

8    As it happened, the Minister appealed from the decision in DVRL. Given the obvious relevance of the appeal to the present proceeding, this matter was further adjourned by consent. On 27 May 2026, the Full Court dismissed the appeal: Minister for Immigration and Citizenship v DVRL [2026] FCAFC 73; (2026) 316 FCR 477 (Lenehan J, Perry and Stellios JJ agreeing). Following the delivery of judgment by the Full Court, the parties filed further submissions and the hearing resumed before me on 20 August 2026.

9    Before identifying the grounds now advanced and considering the effect of DVRL, it is convenient to explain the Tribunal’s reasoning and, in particular, its treatment of the applicant’s risk of reoffending and the consequences of the two possible visa outcomes.

B    THE REASONS OF THE TRIBUNAL

10    The reasons of the Tribunal are very detailed.

11    The Tribunal first found that the applicant did not pass the character test because he had a substantial criminal record, having relevantly been sentenced in July 2020 to a term of imprisonment of 12 months: TR [18]–[19]. It then turned to the exercise of the discretion under s 501(1), applying Direction 110 and, in particular, the primary consideration concerning protection of the Australian community.

12    The Tribunal dealt at very considerable length with the applicant’s criminal history. It observed that he had been convicted of many offences and that the sentencing remarks and statements of material facts to which it referred represented only some of that offending: TR [23]. The offending extended over many years and included repeated acts of violence, offences against public officers, property offences, drug offences, breaches of court and police orders, disorderly conduct and offending while in immigration detention. The Tribunal considered that although many individual offences were not serious, a number plainly were, including violent offences which were entirely unprovoked and directed against persons unknown to the applicant, family violence and offences committed in immigration detention: TR [23]–[43].

13    The more serious instances recounted by the Tribunal give some appreciation of the character of the offending. In 2020, while in immigration detention, the applicant accused a detainee services officer of stealing his tobacco and struck him in the face with a clenched fist approximately eight times, placed him in a headlock, followed him when he attempted to walk away, pushed him to the ground and continued punching him to the head. The victim sustained bleeding and bruising to his face. In other incidents in 2020, the applicant struck one victim in the face after being refused cigarettes and punched another victim several times in the mouth and head during a dispute over an Xbox gaming console. The sentencing magistrate described the assaults as unprovoked and unjustified and noted that violence was not out of character for the applicant: TR [24]–[25].

14    The Tribunal also referred to serious violence before the applicant entered immigration detention. In December 2013, during an argument with his then partner, he threw a mug which struck her in the head and later dragged her towards their unit when she attempted to leave. In separate offending, he approached a person in a shopping centre car park without provocation, became verbally abusive, struck the person in the face and then produced a knife which he swung towards the victim’s face, the knife striking the victim in the shoulder. The sentencing magistrate referred to the applicant having amassed a significant criminal record involving past violence and poor compliance with community-based orders: TR [26]–[28].

15    There were further incidents involving violence and property offending. In December 2013, the applicant approached a person seeking cigarettes, money and a telephone and punched the person twice before the victim handed over a telephone, tobacco and cash. On another occasion he followed a victim and struck the person twice in the face with a fly swat. The Tribunal also referred to aggravated burglary offending in 2013 and to repeated property damage and burglary offending in 2012, including smashing windows at residential and commercial premises, and to an assault in which the applicant grabbed a victim by the neck and kneed him in the chest and abdominal area: TR [29]–[33].

16    The Tribunal referred as well to an earlier unlawful wounding offence in 2009. The applicant struck the victim on the back with a piece of wood, followed him when he attempted to flee, struck him in the head and continued to hit him, before standing over him and driving a piece of picket into his face two or three times. The sentencing judge expressed concern about releasing the applicant into the community given his violent offending. The Tribunal also noted repeated breaches of police orders concerning his former partner, incidents involving spitting upon others, numerous assaults upon public officers and other violent conduct. In one incident in 2005, following an argument over money, the applicant produced a large carving knife from his sock and stabbed the victim in the shoulder: TR [36]–[40].

17    The Tribunal also had regard to the applicant’s conduct while in immigration detention, where there had been numerous incidents involving property damage, assaults and other physical harm. The Tribunal regarded the applicant’s most recent convictions arising from conduct in detention, including repeatedly punching an officer in the head and face with a closed fist, as especially significant because Direction 110 treats crimes committed while in immigration detention as serious: TR [41]. Having considered the offending, the Tribunal accepted that some individual offences were at the lower end of seriousness, but found that the applicant’s overall offending was “very serious”: TR [42]–[43].

18    The Tribunal then turned to the prospective risk to the Australian community. It considered that the applicant’s offending had escalated from relatively minor conduct to assaults, aggravated assaults and property damage and found that, should he engage in further criminal or other serious conduct, the harm to others could be significant: TR [44]–[47].

19    In assessing the likelihood of further offending, the Tribunal considered the applicant’s psychiatric history and the evidence concerning treatment and support. The applicant had been diagnosed with paranoid schizophrenia and drug-induced psychosis and had displayed symptoms of post-traumatic stress disorder. He had been the subject of a guardianship order and Community Treatment Orders and there was evidence of auditory hallucinations, persecutory delusions, surveillance delusions and thought passivity. The Tribunal accepted that the applicant was mentally ill and that his condition required ongoing treatment and extensive support: TR [48]–[63].

20    The Tribunal also considered the earlier Tribunal decision of October 2022, which it will be recalled had found that the applicant was not a danger to the Australian community. That earlier Tribunal had accepted medical evidence that detention had contributed adversely to the applicant’s mental state, that his condition could be better managed in the community and that a combination of guardianship, a Community Treatment Order, appropriate accommodation and access to support, including NDIS, could mitigate the risk of violent behaviour. The present Tribunal considered that decision to be of limited assistance because it concerned a different question and did not involve the evaluative exercise required by Direction 110: TR [52]–[53].

21    The present Tribunal had before it Dr Laugharne’s opinion that the applicant would require a Community Treatment Order, depot antipsychotic medication, appropriate accommodation, a case worker, mental health nursing support and access to a community psychiatrist. Dr Laugharne had also identified stable accommodation and the applicant’s relationship with his son as protective factors. It considered the occupational therapy evidence of a Ms Maravillas, including her opinion that appropriate support with medication management would assist the applicant and that appropriate supports were likely to reduce behaviours of concern and hospital admissions. But the Tribunal gave limited weight to her opinion concerning the future consequences of NDIS support because she had limited experience following up clients after assessment, was unfamiliar with the means by which treatment compliance might be enforced and was not confident about what services would be available outside NDIS: TR [54]–[62].

22    The Tribunal accepted that the nature of the applicant’s disability and his need for ongoing treatment were not in dispute and that he required “extensive support”. It considered, however, that the important question was whether the evidence established that his offending behaviour would decrease if he became an NDIS participant and received the variety of services said to be available through that scheme: TR [63].

23    Importantly, at this point, the Tribunal expressly adverted to the different visa outcomes. It recorded the Minister’s submission that there would be limited governmental options to protect the community if the applicant were granted a permanent visa because conditions could not be imposed upon such a visa, whereas conditions could be imposed if he remained in Australia on a BVR. It also recorded the applicant’s submission that no BVR condition had been identified which could assist in managing his condition and expressly agreed with that submission: TR [64]. The Tribunal nevertheless noted that, as a BVR holder, the applicant was entitled to support through the SRSS programme, including health and mental health care and accommodation support, at least for the immediate period: TR [64]–[65].

24    The Tribunal accepted that stable accommodation was desirable and recorded Ms Maravillas’ evidence that homelessness or unstable accommodation might adversely affect the applicant’s ability to receive support and monitor compliance with medication. It also accepted that the SRSS accommodation support was time-limited and due to end in November 2025. It was not, however, prepared to find that the applicant would thereafter become homeless or lack stable accommodation. There was uncertainty as to what his circumstances would then be, whether other support might be available and whether his mental state and capacity might alter. The Tribunal considered it “purely speculative” to assume that he would have stable accommodation if granted permanent residence but would become homeless if he remained on a BVR: TR [66]–[71].

25    The Tribunal then considered more directly the applicant’s contention that access to the NDIS would reduce his risk of reoffending. It accepted, for the purpose of the review, that permanent residence might make him eligible for NDIS, but was not satisfied that eligibility would ensure the particular level of funding or services said to be required. It noted that an NDIS support worker might remind the applicant to take medication and report non-compliance, but could not compel treatment, whereas a Community Treatment Order could provide mechanisms for enforcement independently of visa status: TR [72]–[73].

26    Of particular significance to the Tribunal was the applicant’s history of non-compliance with treatment. Despite having previously been subject to multiple Community Treatment Orders and having access to treatment, he had repeatedly refused medication. The records disclosed refusals of depot injections in 2023 and again in August and September 2024. In 2023, his mental state had deteriorated to the point that he punched a doctor and assaulted nurses. In February 2024, he initially refused a depot injection and in August 2024 resisted an injection while being verbally abusive. The Tribunal regarded his tendency to react violently or aggressively to actual or perceived stressors as significant because further stressors would inevitably arise in ordinary life: TR [74]–[76].

27    The Tribunal was therefore not satisfied that the applicant’s expressed willingness to engage with the NDIS or treatment established that he would cooperate in the future. It considered that there was a real possibility of future non-compliance with medication and treatment, which significantly increased the risk of renewed criminal behaviour: TR [77]–[79]. It also considered his history of alcohol and illicit drug use, which the applicant himself had associated with his offending, and rejected as overly simplistic his suggestion that proximity to his son would remove his need to use illicit substances. There was little evidence that he had undertaken rehabilitation directed to drug and alcohol use and the Tribunal was not satisfied that future substance abuse could be discounted: TR [80]–[82].

28    The Tribunal ultimately rejected the applicant’s submission that the community would be better protected by granting him permanent residence with access to the NDIS. It did so because it was not satisfied that adequate treatment would be unavailable to him on a BVR, was not satisfied that NDIS participation would secure all recommended supports or ensure compliance with medication, and considered that other risk factors, particularly drug and alcohol misuse, would remain. It therefore concluded that access to NDIS would not necessarily reduce the risk of reoffending: TR [83]–[84].

29    The Tribunal then expressed its presently critical conclusion at TR [85]:

The Tribunal has formed the view that there is a high risk of reoffending. Noting the seriousness of past offences and the harm that reoffending could cause, and the high risk of reoffending irrespective of the Applicant’s visa status and the availability of NDIS supports, the Tribunal finds that this consideration weighs very heavily in favour of exercising discretion to refuse to grant the visa.

30    That finding lies at the centre of the principal ground of review.

31    The Tribunal then dealt with the remaining primary considerations. It found that the applicant had engaged in family violence against his former partner and that this weighed heavily in favour of refusal: TR [86]–[89]. It gave limited weight against refusal to the strength, nature and duration of the applicant’s ties to Australia, notwithstanding his residence here for more than 20 years, because there was otherwise little evidence concerning substantial social, employment or community ties: TR [90]–[93].

32    The best interests of the applicant’s 14-year-old son weighed heavily against refusal. The Tribunal accepted that the applicant and his son wished to maintain their relationship and that a condition of the BVR then prevented contact with the son because he was a member of the family of the victim of the applicant’s family violence offending. Unless that condition were varied, the applicant could not have contact with his son while on the BVR, whereas a permanent visa would not be subject to that condition: TR [94]–[100].

33    As to community expectations, the Tribunal considered that the seriousness of the applicant’s conduct and the potential harm from repetition meant that this consideration weighed “very heavily” in favour of refusal: TR [101]–[109].

34    The Tribunal then considered the legal consequences of refusal. It accepted that the applicant was the subject of a protection finding and could not be removed to his home country. It recorded that he held a BVR subject to numerous conditions, including daily reporting, restrictions upon employment and a requirement to cooperate with removal. It considered that those conditions imposed some restrictions upon the applicant, although not extensive hardship, and also recognised the possibility that a removal pathway to a third country might arise, requiring the applicant to cooperate with removal or face possible imprisonment: TR [110]–[116].

35    The Tribunal accepted that the uncertainty of the applicant’s immigration status, the possibility of future removal and the inability to access NDIS and supported housing without permanent residence were matters capable of causing hardship. It therefore gave the legal consequences of refusal significant weight against refusal: TR [117]–[119]. It also accepted more generally that permanent residence would provide access to a wider range of services and supports over a longer period and treated that matter as weighing somewhat against refusal: TR [128].

36    In its overall conclusion, the Tribunal returned to the seriousness of the applicant’s offending, including repeated and often unprovoked violence, family violence and offences in immigration detention, and to its finding that there remained a high risk of reoffending because there was no certainty of compliance with treatment or that treatment would necessarily be effective. It treated protection of the community and community expectations as weighing very strongly in favour of refusal; family violence also favoured refusal. Against those matters, the best interests of the applicant’s son weighed heavily against refusal, his ties to Australia and the legal consequences of refusal also weighed against refusal, and some other considerations were neutral. The Tribunal ultimately affirmed the delegate’s decision to refuse the Protection visa.

C    THE GROUNDS OF REVIEW

37    The applicant’s amended case now advances three grounds.

38    I should say at once that the way in which the case has ultimately been presented illustrates a tendency, particularly evident in migration litigation, for an applicant to carry forward, alongside what is properly regarded as the principal and strongest ground, additional grounds of distinctly lesser force which add nothing of substance. This tendency, which one sees often in cases of this type, is difficult to reconcile with the case management objectives of Pt VB of the Federal Court of Australia Act 1976 (Cth). A remark often made in appellate litigation outside migration cases (which is equally applicable to judicial review) is that if a party is not going to win on what everyone recognises is their strongest ground, they are not going to win on the subsidiary points.

39    I hasten to add that this observation is not intended as a criticism of the careful and helpful way in which Ms Nguyen presented the applicant’s case. It is to her credit that grounds 2 and 3 of the original application were abandoned.

40    What remains is, in substance, one principal ground and two additional grounds. The principal ground is Ground 1A. It is that the Tribunal failed properly to undertake the assessment required by Direction 110 because, despite finding that the applicant would remain in the Australian community under either available decisional outcome and that his risk of reoffending would remain high irrespective of his visa status and access to NDIS supports, it nevertheless treated that risk as contributing to the very heavy weight attributed to protection of the Australian community in favour of refusal.

41    Amended Ground 4 is, in substance, just another characterisation of the same complaint. It alleges that the Tribunal’s treatment of the applicant’s future risk was legally unreasonable because a high risk said to be common to both decisional outcomes could not rationally favour refusal of the Protection visa.

42    Amended Ground 1 is different: it concerns the Tribunal’s treatment of the applicant’s future accommodation and support arrangements. The applicant contends that the Tribunal reasoned irrationally or illogically in treating as speculative the possibility that, following the cessation of SRSS support, he would face inadequate accommodation or homelessness, notwithstanding its acceptance that he required extensive treatment and support, that SRSS support would cease in November 2025, that stable accommodation was relevant to his risk of offending, and that permanent residence would provide access to wider and longer-term supports. The complaint is that the Tribunal rejected those possibilities as speculative while itself relying upon other possibilities, including that the applicant’s circumstances might change or that other supports might become available.

43    Ground 1A is the ground of real significance and I will deal with it first.

D    GROUND 1A

D.1     The Applicant’s Contentions

44    It comes as no surprise that the applicant’s case begins (and essentially ends) with an analysis and asserted application of the Full Court’s decision in DVRL.

45    The applicant submits that DVRL establishes that, where a non-citizen will remain in the Australian community irrespective of the outcome of the exercise of the discretion under s 501, the assessment required by Direction 110 is not confined to an assessment of the absolute risk which the non-citizen presents to the community. The decision-maker is instead required to assess the risk associated with each realistically available decisional outcome and determine whether there is any real difference between them. If there is no such difference, the future-risk component of the protection of the Australian community consideration cannot rationally weigh in favour of one outcome rather than the other; and if refusal would expose the community to a greater risk, that consideration would weigh against refusal.

46    The applicant accepts that, unlike the Tribunal in DVRL, the Tribunal in the present case did turn its mind to the consequences of the two visa outcomes. The submission is that this distinction does not answer Ground 1A because the error occurred in what the Tribunal did with the comparison it had undertaken. In particular, after considering and rejecting the applicant’s contention that the grant of a Protection visa, and consequent access to NDIS and other supports, would reduce his risk of reoffending, the Tribunal made the express finding at TR [85] that there was a “high risk of reoffending irrespective of the Applicant’s visa status and the availability of NDIS supports”. It nonetheless immediately concluded that “this consideration weighs very heavily in favour” of refusing the visa. The applicant then submits that those conclusions cannot be reconciled with the reasoning in DVRL.

47    More particularly, the applicant submits that the Tribunal’s rejection of his positive case that the grant of permanent residence would reduce the risk did not amount to a finding of the converse, namely that refusal of the Protection visa would reduce the risk or better protect the community. Although the Tribunal found that it was not satisfied that the community would be better protected if the applicant held a permanent visa rather than a BVR, it did not find that the risk presented by the applicant on a BVR was lower than the risk presented if he held a Protection visa.

48    The applicant says that the absence of a precisely quantified comparison is beside the point; the Tribunal had expressly found that the risk remained high “irrespective” of visa status and had identified no real difference in future risk capable of favouring refusal, or any feature of refusal which it found reduced that risk. It necessarily followed that, on the applicant’s reading of DVRL, the future-risk component of the protection of the community consideration was neutral and could not properly be treated as weighing very heavily in favour of refusal.

D.2    Consideration

49    Resolving the merits of Ground 1A is not without difficulty. The language of TR [85], read alone, lends some force to the applicant’s contention. The question, however, is not answered by isolating that sentence from the comparative analysis which immediately preceded it.

50    As noted above, at TR [85] the Tribunal found a high risk of reoffending “irrespective of the Applicant’s visa status and the availability of NDIS supports” and, in the same sentence, concluded that “this consideration weighs very heavily in favour” of refusing the Protection visa. Mr Johnson properly accepted in oral argument that the applicant remained at high risk under either visa status. The question is whether the Tribunal thereby found that the two realistically available outcomes involved no real difference relevant to community protection, and nevertheless treated a common risk as a reason favouring refusal.

51    It is important to identify with some precision what the Full Court decided in DVRL. Lenehan J (with whom Perry and Stellios JJ agreed) held that Direction 110 requires a decision-maker, where the non-citizen will remain in the Australian community whichever outcome is adopted, to assess the risk associated with each realistically available outcome: DVRL (at 495–496 [82]–[88], 504–505 [120]–[123]). The inquiry is whether either outcome gives rise to any real difference in terms of risk. If there is no such difference, matters bearing on future risk may be neutral; if refusal presents the greater risk, they may weigh against refusal: DVRL (at 495–496 [88], 504–505 [121]).

52    That reasoning was expressed within the deliberately open-textured structure of Direction 110. The inquiry is evaluative and individualised. It does not require numerical estimates, a prescribed verbal formula or an express anterior finding that one outcome produces a specified degree of lower risk. Nor does the provisional language used in DVRL (at 495–496 [88]) establish an inflexible rule that future risk must be treated as neutral unless the decision-maker is positively persuaded that one outcome presents a lower risk: NCNZ v Minister for Immigration and Citizenship [2026] FCA 870 (at [45]–[47]).

53    The nature of the error found in DVRL is also important. The Tribunal there proceeded on the footing that it was not required to undertake the comparative assessment at all: DVRL (at 506–508 [135]–[146]). As Lenehan J later put it, the Tribunal had “refused to do the very thing the Direction required”: DVRL (at 514 [172]). It did not complete any meaningful forward-looking comparison between the risk posed if DVRL remained in the community on a BVR and the risk posed if the Protection visa were granted.

54    It will already be apparent that the present case is materially different in this respect. The applicant accepts that the Tribunal turned its mind to the consequences of the two visa outcomes. The complaint is instead that the Tribunal erred in its treatment of the comparison it undertook. Ms Nguyen accepted in oral argument, correctly in my view, that the task was to evaluate the difference between the risks associated with the two outcomes; the Tribunal was not required to make an express finding framed in terms of a “real difference”.

55    What matters is not merely that the Tribunal mentioned both visa outcomes. Its reasoning at TR [63]–[84] did three things: first, it identified the applicant’s case as being that permanent residence and the supports said to accompany it would reduce his offending; secondly, it examined the factual mechanisms by which that reduction was said to occur, including accommodation, NDIS support, treatment and medication compliance, and drug and alcohol use, against the circumstances which would obtain while he remained on the BVR; and thirdly, it answered the comparative proposition expressly at TR [84], by rejecting the contention that the community would be better protected if the applicant held a permanent visa rather than a BVR. It is that reasoning, rather than the mere existence elsewhere in the reasons of references to the two visas, which distinguishes this case from DVRL, MFKF and GNHW.

56    In those circumstances, the words “irrespective of the Applicant’s visa status” in TR [85] should not be detached from what preceded them and treated as a self-contained finding that the outcomes were identical in every respect relevant to community protection. Administrative reasons are to be read fairly and as a whole, without an eye finely attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). DVRL recognises that principle while cautioning that it is not a licence to disregard clear language or reconstruct a reasoning process which did not occur: DVRL (at 507 [141]). Here, the comparative process is express; the question is what the Tribunal concluded from it.

57    The description of the risk as “high” under either visa status does not necessarily mean that the Tribunal found no relevant difference between the outcomes. “High” was an evaluative band, not a numerical measurement. In BKRD v Minister for Immigration and Citizenship [2026] FCA 865 (at [100]–[103], [108]–[110]), Hespe J explained that features of a BVR may reduce risk without moving the person into a different broad band. The Tribunal in BKRD made a more explicit finding about the protective effect of BVR conditions than was made here. The point for present purposes, though, is narrower: the verbal classification “high” does not, of itself, establish that the Tribunal found no real difference between the risks associated with the two outcomes. That question must be answered by reading the classification in the context of the comparative analysis at TR [63]–[84].

58    The substantive basis of the present Tribunal’s comparison did not depend upon identifying a BVR condition which therapeutically managed the applicant’s psychiatric condition. At TR [64], it agreed that no such condition had been identified. It nevertheless considered the actual supports available as a BVR holder, the availability of mechanisms for monitoring and enforcing medication compliance through a Community Treatment Order independently of visa status, and the claimed advantages of NDIS participation. Its conclusion was that adequate treatment was not shown to be unavailable on a BVR and that NDIS participation would not necessarily secure the recommended services, ensure compliance with medication or remove the other risk factors: TR [72]–[84]. Those were findings about the factual premises said to make permanent residence the safer outcome.

59    I therefore do not rely upon the daily reporting or employment conditions recorded at TR [115] as themselves reducing the applicant’s risk of violent reoffending. The Tribunal did not make that finding. Their relevant significance is confined to confirming that the alternative outcome considered by the Tribunal was continued residence under a conditional and provisional BVR, not unconditional permanent residence and not immediate removal.

60    That distinction is important when considering MFKF v Minister for Immigration and Citizenship [2026] FCA 1108. Halley J there found that the Tribunal had not undertaken a comparison between the risks associated with a BVR and a Protection visa. The Minister could not use BVR conditions or the prospect of removal after the event to supply a missing comparison: MFKF (at [48], [51]–[54]). Here, by contrast, the Tribunal expressly posed and answered the comparative question at TR [63]–[84]. The Court is not constructing an analysis from matters foreign to the Tribunal’s reasoning.

61    After the hearing of this proceeding, the Full Court delivered judgment in Minister for Immigration and Citizenship v GNHW [2026] FCAFC 107 on 25 August 2026. I did not think it was consistent with facilitating the overarching purpose to invite yet further submissions because the parties had already addressed in detail the operation of DVRL and the precise question whether the Tribunal had undertaken the required comparison between the two visa outcomes. The resolution of this case has been delayed enough. Moreover, GNHW did not require the Full Court to determine the Minister’s broader challenge to the correctness of DVRL. Its resolution turned upon whether, in the particular circumstances of that case and having regard to the submissions advanced before the Tribunal, the Tribunal had considered how the differences between the two visa outcomes bore upon the risk of reoffending. It raised no new issue upon which the parties had not already had a full opportunity to be heard.

62    GNHW does not cause me to alter the conclusion reached above. The Minister there maintained that DVRL was incorrect, but accepted that, having regard to the particular submissions advanced before the Tribunal, the Tribunal was obliged to consider the differences between a permanent visa and a BVR insofar as those differences bore upon the respondent’s risk of reoffending: GNHW (at [42]–[43]). The Full Court rejected the Minister’s contention that the Tribunal had done so. Although the Tribunal had considered in some detail the practical differences between the two visa outcomes when addressing the legal consequences of its decision, the Full Court held that “nowhere did the Tribunal contemplate how those differences bore on the risk of reoffending and the protection of the Australian community”: GNHW (at [48]).

63    The Full Court developed that point in GNHW (at [49]–[53]). The contention requiring consideration in GNHW was that the circumstances associated with permanent residence would improve the respondent’s prospects of rehabilitation and thereby reduce the risk of recidivism. The Tribunal had considered matters bearing upon future offending, including alcohol abuse, treatment and the respondent’s circumstances in the community, but nowhere in that reasoning did it assess whether those aggravating factors would be different or ameliorated if his status changed from a BVR to a Protection visa: GNHW (at [50]–[51]). The Court was not prepared to infer that the necessary comparison had been undertaken merely because the Tribunal had elsewhere adverted to the practical differences between the two visas. That other discussion concerned the consequences of the respective outcomes for the respondent, not their likely effect upon rehabilitation and future offending: GNHW (at [52]–[53]).

64    That reasoning serves to sharpen the distinction in the present case. Here, the Tribunal did not merely identify the practical incidents of permanent residence and a BVR elsewhere in its reasons and leave the Court to infer that those matters had informed its assessment of risk. The very subject of TR [63]–[84] was the applicant’s contention that the circumstances attending permanent residence, particularly access to NDIS and the supports said to flow from it, would reduce his offending risk and thereby better protect the Australian community. The Tribunal considered accommodation and stability, the nature and availability of NDIS supports, the means of monitoring and enforcing medication compliance, the independent operation of a Community Treatment Order, the applicant’s history of disengagement from treatment and the separate risk presented by drug and alcohol use. Having undertaken that analysis, it expressly rejected at TR [84] the proposition that “the community would be better protected if the Applicant holds a permanent visa rather than a bridging visa”. The connexion which the Full Court found missing in GNHW is therefore found in the present Tribunal’s risk reasoning.

65    There is one further matter which, in light of GNHW, should be put to one side as a basis for the conclusion I have reached. The Tribunal referred at TR [116] to the possibility of the applicant’s removal to a third country, but recognised the absence of present arrangements and the uncertainty attending that possibility. I do not regard the prospect of removal as establishing that refusal produced a lower risk in the reasonably foreseeable future. Its significance is more limited: it formed part of the legal circumstances attending continued residence on a BVR, but it does not supply the comparative assessment of risk. That assessment is to be found, for the reasons just explained, in the Tribunal’s reasoning at TR [63]–[84].

66    That does not mean, however, that the conditional character of a BVR is irrelevant as a matter of principle. In ZTBL v Minister for Immigration and Citizenship [2026] FCAFC 48; (2026) 316 FCR 94 (at 112–113 [89] per Markovic, Hespe and Needham JJ), the Full Court observed that maintaining liability to removal may rationally bear upon community protection. In Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 425 ALR 79 (at 88–89 [27]), Gageler CJ, Edelman and Jagot JJ described the statutory conditions and removal-related incidents of a BVR. Hill J considered those matters in NCNZ (at [48]–[56]).

67    Those cases do not displace the comparative obligation imposed by Direction 110, and the present conclusion does not depend upon doing so. They show only that DVRL does not prescribe the weight to be given to the community-protection consideration as a whole once the required comparison has been undertaken: NCNZ (at [51]–[56]). The statutory and factual setting must be considered. Here, the Tribunal was exercising the discretion under s 501(1), had before it the known BVR and support arrangements, and made findings rejecting the asserted risk-reducing advantages of permanent residence.

68    I accept that the seriousness of past conduct and the proposition that some prospective harm may be so serious that any risk is unacceptable could not substitute for the comparative assessment required by DVRL. But the protection of the community is a composite primary consideration under para 8.1 of Direction 110. It includes both the nature and seriousness of past conduct and the risk should further offences or other serious conduct occur. Even if the marginal difference in future risk were properly regarded as slight, that would not require the Tribunal to treat the protection consideration as a whole as neutral: see NCNZ (at [48]–[56]). This is consistent with MFKF (at [49]). The point there was that the seriousness of the offending could not, without the required comparison of decisional outcomes, supply what the Tribunal’s reasoning lacked. Here, for the reasons already given, that comparison was undertaken.

69    Properly read, the Tribunal did not reason that precisely the same risk arose under either outcome. It found that the applicant would remain within a high-risk band notwithstanding the claimed advantages of permanent residence; rejected, for detailed reasons, the factual case that those advantages would better protect the community; and assessed that continuing high risk together with the very serious past conduct and potential harm identified at TR [42]–[47].

70    I recognise the force of the applicant’s reliance upon DVRL (at 507 [141]). The principle that administrative reasons are not to be read minutely cannot be used to reconstruct reasons into validity. But the comparative exercise is not supplied by the Court after the event. It appears in TR [63]–[84], including the Tribunal’s conclusion that the community was not shown to be better protected by permanent residence. Reading TR [85] in that context gives effect to the reasoning which the Tribunal expressed; it does not invent a protective finding about a particular BVR condition which the Tribunal did not make.

71    I am therefore not satisfied that the Tribunal failed to comply with the process required by Direction 110 as explained in DVRL. It considered both realistically available outcomes; addressed whether the asserted advantages of permanent residence would reduce risk and better protect the community; rejected that proposition for detailed reasons; and assessed the applicant’s continuing high risk in the context of his very serious conduct and the comparative reasoning at TR [63]–[84].

72    Even if TR [85] is understood as finding no substantial difference in the likelihood of future offending under the two visa outcomes, I do not understand that finding as converting the whole of the protection of the Australian community consideration into a neutral consideration. It is important to distinguish the comparative assessment required in relation to prospective risk from the primary consideration in para 8.1 viewed as a whole. Direction 110 separately requires consideration of the nature and seriousness of the non-citizen’s past conduct and of the risk to the community should further offending occur. DVRL does not permit a common future risk, without more, to be counted as a reason favouring refusal. But it does not follow that, once the required comparison has been undertaken, the independent significance of the applicant’s very serious past conduct under para 8.1.1 disappears from the evaluative exercise. That is also consistent with MFKF (at [49]), where the difficulty was that seriousness was relied upon without the necessary comparison having occurred.

73    Ground 1A is therefore not made out.

E    GROUND 4

74    As I have noted, Ground 4 is advanced in the alternative to Ground 1A and alleges legal unreasonableness. The applicant contends that there was no rational connexion between the Tribunal’s finding concerning his future risk and its decision to exercise the discretion to refuse the Protection visa. More particularly, it is said that the existence of a high risk of reoffending which was common to both decisional outcomes could not rationally favour one outcome over the other.

75    Obviously enough, this ground depends upon substantially the same premise as Ground 1A. For the reasons already given, the Tribunal did not treat a mathematically identical risk, without more, as selecting refusal. It performed the comparison, rejected the asserted risk-reducing advantages of permanent residence and evaluated the continuing high risk together with the seriousness and persistence of the applicant’s conduct.

76    That reasoning disclosed a rational connexion between the findings made and the weight assigned to protection of the community. Further, even if the future-risk comparison were neutral, ZTBL (at 112–113 [89] per Markovic, Hespe and Needham JJ) and NCNZ (at [48]–[56]) demonstrate that it was not legally irrational to give the composite community-protection consideration substantial weight in the circumstances identified by the Tribunal.

77    Ground 4 is not made out.

F    GROUND 1

78    Amended Ground 1 alleges that the Tribunal engaged in legally unreasonable, irrational or illogical reasoning in its treatment of the applicant’s prospective accommodation and supports. The complaint focuses principally upon TR [70]–[71], where the Tribunal described as “purely speculative” the applicant’s contention that, if he remained on a BVR, the cessation of SRSS support might result in homelessness or unstable accommodation, with consequent deterioration in his mental health and an increased risk of reoffending. The applicant contends that there was an impermissible asymmetry in the Tribunal’s reasoning because it rejected those possibilities as speculative while itself taking account of other uncertain future possibilities.

79    I do not accept the submission.

80    It mistakes the Tribunal’s recognition that future circumstances were uncertain for reliance by the Tribunal upon particular uncertain events as though they would occur. The Tribunal was not required to determine which visa outcome would best meet the applicant’s needs. Its task was to assess the evidence before it concerning the circumstances likely to attend each outcome, including the supports actually available to the applicant as a BVR holder and those which might become available if he obtained permanent residence. As the Minister points out, there was evidence before the Tribunal concerning the substantial supports then being provided to the applicant through SRSS, including accommodation assistance, access to health and mental health care and other forms of practical support.

81    Against that evidentiary background, there was nothing at all irrational in the Tribunal declining to find that the cessation of the existing SRSS arrangements would result in the applicant becoming homeless. The Tribunal explained at TR [70] that the applicant’s contention depended upon assumptions not established by the evidence, including that permanent residence would result in his obtaining public or social housing. There was no evidence establishing his eligibility for supported housing beyond the requirement for permanent residence, or the period within which such accommodation might become available, and Ms Maravillas’ evidence was that in her view the applicant would not be eligible for Supported Independent Living accommodation. The Tribunal was therefore plainly entitled to conclude that NDIS participation would not necessarily result in stable accommodation.

82    The same answer applies to TR [71]. The Tribunal was not prepared to find that, when SRSS ceased to be available, the applicant would become homeless or lack stable accommodation, or that his mental health would consequently deteriorate unless he were an NDIS participant and a permanent visa holder. Those were findings the applicant wished the Tribunal to make about future events. The evidentiary foundation did not require them to be made, and the Tribunal’s description of the propositions as speculative was reasonably open to it.

83    There was a further and more fundamental difficulty with the applicant’s argument. The Tribunal’s concern was not confined to whether particular services would theoretically be available under one visa status or the other. It had serious concerns about the applicant’s history of non-compliance with treatment and medication and episodes of aggressive conduct towards medical staff, and it was not satisfied that, even if the applicant became eligible for the NDIS, he would receive the full suite of services upon which his case depended. Those matters were directly relevant to the weight the Tribunal could give to the asserted benefits of permanent residence.

84    The asserted asymmetry therefore does not arise. There is an obvious distinction between recognising that future circumstances may change, and making a positive finding that a particular favourable or adverse future event will occur. The Tribunal did the former and declined to do the latter (where it considered the evidentiary foundation insufficient). That was an evaluative judgment for the Tribunal to make and nothing identified by the applicant demonstrates irrationality, illogicality or legal unreasonableness in the way it did so.

85    Ground 1 is without merit.

G    CONCLUSION AND THREE FINAL POINTS

86    I should make three final points.

87    First, for completeness, the applicant contended that if established, the Ground 1A error was material. Protection of the Australian community was ultimately given the greatest weight by the Tribunal, and the continuing risk of reoffending formed part of that assessment. Had the future-risk component been treated as neutral, it is said the Tribunal would still have been required to take account of the seriousness of the applicant’s past conduct and family violence as matters favouring refusal, but against those matters stood the best interests of his son, his ties to Australia, the legal consequences and hardship flowing from refusal, and his ability as a permanent resident to obtain wider and longer-term supports. It was therefore submitted that there was a “realistic possibility” that removal of future risk from the matters weighing in favour of refusal could have affected the ultimate exercise of the discretion. Notwithstanding the findings of the Tribunal as to the applicant’s sustained criminality and family violence, the Minister did not contend, either in writing or orally, that an error of the kind alleged by Ground 1A would be immaterial. That is perhaps unsurprising given the way in which the requirement of materiality is now understood following LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321. Although, having regard to the applicant’s very serious offending and the other considerations favouring refusal, one might readily think the ultimate outcome was unlikely to have been different, this is not the relevant inquiry.

88    Secondly, the Minister expressly submitted in this proceeding that DVRL, although distinguishable, was wrongly decided. That submission cannot alter the task of this Court: unless DVRL is displaced by the High Court or reconsidered by an appropriately constituted Full Court, it is to be applied. I was also told that special leave to appeal from DVRL was not being sought, notwithstanding the Minister’s continued assertion that the decision was wrong. It is worth noting that if the operation of Direction 110, as construed in DVRL, is perceived by the Executive to give rise to practical difficulties, or to produce results which are undesirable, it is open to the Minister to consider whether the Direction should be amended, consistently with the Act, to address those concerns. What is not available, of course, is to administer the law upon the footing that DVRL was wrongly decided. As Allsop J observed in Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd [2007] FCAFC 16; (2007) 158 FCR 325 (at 326–327 [3]–[6]), where the Executive considers that the courts have misunderstood the law, the available courses include seeking to vindicate its preferred construction on appeal or in other appropriate proceedings, or seeking legislative change. The same principle applies where any perceived difficulty may be addressed by reconsideration of the terms of a ministerial direction.

89    Thirdly, I record my gratitude for the careful and cogent submissions advanced by counsel for both parties, which were of considerable assistance in resolving the issues raised by the application. The applicant was fortunate that Ms Nguyen was prepared to appear on his behalf on a pro bono basis. The assistance of counsel in matters of this kind is particularly valuable where, as here, the proceeding ultimately raises a point of substance requiring close attention to the developing authorities and to the reasons of the administrative decision-maker. The careful presentation of the applicant’s case ensured that the point was properly exposed and could be determined upon a fully developed argument.

90    For the reasons given above, however, none of the grounds of review has been made out. The application must therefore be dismissed with costs.

Associate:

Dated: 31 August 2026