DPGL v Minister for Immigration and Multicultural Affairs [2025] FCA 1248

1. The Tribunal, as it was required to do, exercised its discretion having regard to Direction 110.
2. Clauses 5.2, 6 and 7 of Direction 110 provide:

5.2 Principles

The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

Part 2. Making a decision

6. Making a decision

Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

7. Taking the relevant considerations into account

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

1. Section 8 of Direction 110 sets out the following primary considerations:

8. Primary considerations

In making a decision under section 501(1) ... the following are primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

1. The primary consideration concerning the protection of the Australian community from criminal or other serious conduct identified in cl 8(1) is the subject of cl 8.1 of Direction 110, which provides:

8.1. Protection of the Australian community

(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

a) the nature and seriousness of the non-citizen's conduct to date; and

b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

1. Thus, a decision-maker is required, when considering protection of the Australian community, to keep in mind and have regard to the matters set out in cl 8.1(1) and also to give consideration to each of the two matters described in cl 8.1(2).
2. When considering the first of the two matters described in cl 8.1(2) - "the nature and seriousness of the non-citizen's conduct to date" (cl 8.1(2)(a)) - the decision-maker must have regard to the matters set out in cl 8.1.1 of Direction 110.
3. When considering the second of the two matters described in cl 8.1(2) - "the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct" (cl 8.1(2)(b)) - the decision-maker should have regard to the matters set out in cl 8.1.2(1) and must have regard to the matters set out in cl 8.1.2(2) of Direction 110. Clause 8.1.2 provides in so far as is presently relevant:

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the non-citizen reoffending; and
2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. The discretionary power conferred by s 501(1) of the Act is subject to an implied condition that the power be exercised within the bounds of reasonableness: see, e.g., Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at 351 [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ) and 370 to 371 ([88] to [92]) (Gageler J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at 549 [4] (Kiefel CJ), 564 to 565 [53] (Gageler J) and 583 [131] (Edelman J).
2. Jurisdictional error may be shown where, inter alia, "there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion": MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] (Besanko, Farrell and Thawley JJ), citing Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648 [132] (Crennan and Bell JJ). See also XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at 367 to 368 ([63] to [64]) (Markovic, Cheeseman and Horan JJ); EUD24 v Minister for Immigration and Citizenship [2025] FCAFC 128 at [33] to [36] (Hill J; Cheeseman and Owens JJ agreeing).
3. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at 27 to 28, Allsop CJ, Besanko and O'Callaghan JJ explained:
   1. The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11],[52], and [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 95 ALJR 54; 385 ALR 212 at [26]; SZMDS 240 CLR 611 at [130]-[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; (2021) 288 FCR 565 at [142].
   2. The task in assessing illogicality is not an exercise in logical dialectic. "Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case": at [130]. . Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.

1. In Plaintiff M87/2023 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCASJ 42; (2024) 99 ALJR 387 at 392 [27], Steward J explained:

It is unnecessary to repeat the jurisprudence in this area. The contention that a finding is unreasonable or irrational is not made out by disagreeing with the merits of a finding; even strong disagreement is insufficient. It is also not made out by mistaken reasoning. It requires the presence of irrational or illogical reasoning or processes or outcomes. Irrational or illogical reasoning is not poor or very poor reasoning; it is reasoning which does not - in any way - make sense; it is reasoning which completely offends logical thinking. The same applies to unreasonable or irrational outcomes. Such reasoning or outcomes arise on only the rarest of occasions.

(emphasis added)

B.3 Construction of an administrative decision-maker's reasons

1. The applicant contends that the Tribunal's Decision was legally unreasonable because of illogicality in that decision. This requires the Court to construe the Tribunal's Decision.
2. It is trite that the reasons of the Tribunal are to be read fairly as a whole, and not construed minutely and finely with an eye keenly attuned to the perception of error: see, e.g., Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at 604 [38] (Kiefel CJ, Keane, Gordon and Steward JJ); Plaintiff S22/2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36; (2025) 99 ALJR 1378 at 1382 [16] (Gageler CJ, Edelman and Jagot JJ).
3. In RCLN v Minister for Immigration and Citizenship [2025] FCAFC 113, Perry, Sarah C Derrington and Abraham JJ explained at [27]:

... the Tribunal's reasons must be read fairly and as a whole: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [59]-[60]. Thus, it is well established that the reasons of an administrative decision‑maker "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287)). As such, "a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying": Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).

1. I turn now to the salient aspects of the Tribunal's Decision.
2. The senior member commenced by setting out some matters of background, and then outlined the "legislative framework" within which the decision was to be made (at T[11] to [19]). No issue is taken with this outline.
3. The senior member then identified (at T[20]) that the two issues requiring determination were: (1) whether the applicant passed the character test set out in s 501(6) of the Act; and (2) if not, whether the discretion conferred upon by the Minister by s 501(1) of the Act, and which was to be exercised by the Tribunal having regard to Direction 110, should be exercised so as to refuse or grant the visa.
4. As it was common ground that the applicant did not pass the character test, and the evidence established that the applicant had been sentenced to eight years and six months imprisonment, the senior member found that the applicant did not pass the character test (T[21] to [23]).
5. The remainder of the Tribunal's decision addressed the exercise of the discretion.
6. The senior member stated at T[24] that the Tribunal had considered each consideration set out in Direction 110, keeping in mind the principles in cl 5.2 of the Direction.
7. The senior member then addressed cl 8.1 of Direction 110, concerning the protection of the Australian community. At T[25] to [27], the senior member stated:

8.1 The protection of the Australian community

1. This consideration requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
2. The Tribunal is required to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
3. The Tribunal should also give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

1. The senior member then turned to the "nature and seriousness of the non-citizen's conduct to date" (cll 8.1(2)(a) and 8.1.1) and addressed this consideration at T[28] to [41]. In doing so, the Tribunal:

(1) noted that cl 8.1.1 of Direction 110 provided a list of matters to which the Tribunal must have regard when considering the nature or seriousness of the applicant's conduct;

(2) considered each of those matters (T[31] to [39]); and

(3) stated at T[40] to [41]:

1. The Tribunal considers sentences of imprisonment as the most serious in the sentencing hierarchy, and while the Applicant did not receive the maximum sentence available, the Tribunal considers an eight year and six months sentence to imprisonment is a significant sentence. The Tribunal has also given weight to Judge Lawson's sentencing remarks, that while this matter was not in the category of the worst case, the offending was very serious.
2. While the Tribunal has taken into account that the applicant's offending conduct did not relate to any violent or sexual crimes, or crimes of a violent or of a sexual nature against women or children, and did not involve any acts of family violence, and having had regard to all the factors noted above, and giving significant weight to the sentencing remarks of Judge Lawson and the sentence imposed, overall, the Tribunal considers the nature and seriousness of the Applicant's conduct as very serious.

1. I will refer to the Tribunal's conclusion that it considered the nature and seriousness of the applicant's conduct to date as "very serious" as the cl 8.1(2)(a) conclusion.
2. The senior member then turned to the "risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct" (cll 8.1(2)(b) and 8.1.2) and addressed this consideration at T[42] to [62].
3. In doing so, the Tribunal:

(1) stated that:

1. The Tribunal has had regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and the likelihood of the Applicant engaging in further criminal or other serious conduct.
2. The Tribunal has taken into account the information and evidence on the risk of the Applicant reoffending and the evidence of rehabilitation, giving weight to time spent in the community since the most recent offence, and where consideration is being given to whether to refuse to grant a visa to the Applicant, 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. ;

(2) addressed at T[44] to [46], "[t]he nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct" (cl 8.1.2(2)(a));

(3) addressed at T[47] to [59], "[t]he likelihood of the Applicant engaging in further criminal or other serious conduct" (cl 8.1.2(2)(b)). In doing so, the Tribunal:

(a) addressed the considerations set out in cl 8.1.2(2)(b) including giving significant weight to the opinion of a psychologist, Ms Ferrari, that the applicant was "of low risk of general reoffending" (at T[50]);

(b) stated at T[58] to [59]:

1. The Tribunal accepts the Applicant now has significant protective factors in place and his current situation is very different to his circumstances when he offended. The Tribunal acknowledges the Applicant's efforts to change his circumstances and improve his mental health and build a stable life together with his partner.
2. On the evidence before it, and giving considerable weight to the opinion of Ms Ferarri, the Tribunal finds the risk of the Applicant engaging in further criminal or other serious conduct is low.

1. The Tribunal then stated at T[60] to [62]:
   1. Having considered all the factors mentioned above, cumulatively, the Tribunal considers the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct is low.
   2. The Tribunal accepts that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. The Tribunal does not accept this applies to the Applicant's circumstances.
   3. While the Tribunal acknowledges the Applicant's efforts to change his circumstances and improve the protective factors against reoffending, having considered the nature and seriousness of the Applicant's conduct, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal has concluded that the consideration of the protection of the Australian community weighs moderately in favour of affirming the decision under review.

1. It is common ground that T[60] should be read as a conclusion concerning the operation of cll 8.1(2)(b) and 8.1.2, which was addressed at T[42] to T[59]. I will refer to this conclusion as the cl 8.1(2)(b) conclusion.
2. I will refer to the conclusion in T[62] that the consideration of the protection of the Australian community weighs moderately in favour of affirming the decision under review as the ultimate cl 8(1) conclusion.
3. The senior member then addressed:

(1) cll 8(2) and 8.2 of Direction 110, concerning family violence committed by the applicant. The senior member found, at T[63], that this consideration was irrelevant and was to be given no weight;

(2) cll 8(3) and 8.3 of Direction 110, concerning the strength, nature and duration of the applicant's ties to Australia (at T[64] to [72]). The Tribunal found that this consideration weighed in the applicant's favour;

(3) cll 8(4) and 8.4 of Direction 110, concerning the best interests of minor children in Australia affected by the decision. The Tribunal found, at T[73], that this consideration was irrelevant and was to be given no weight; and

(4) cll 8(5) and 8.5 of Direction 110, concerning the expectations of the Australian community (at T[74] to [78]). The senior member found that this consideration weighed heavily in favour of affirming the decision under review.

1. The senior member next turned to the "other considerations" in cl 9 of Direction 110 and addressed:

(1) cl 9.1 of Direction 110, concerning the legal consequences of the decision (at T[80] to [92]). The senior member concluded that the legal consequences of the Tribunal's decision provided some weight in the applicant's favour;

(2) cl 9.2 of Direction 110, concerning the extent of impediments to the applicant if removed (at T[93] to [102]). The senior member concluded that this consideration was to be given some limited weight in favour of the applicant; and

(3) cl 9.3 of Direction 110, concerning the impact on Australian business interests if the applicant were not allowed to remain in Australia (at T[103] to [104]). The senior member concluded that this consideration should be given no weight.

1. The senior member then expressed the following conclusions at T[105] to [109]:
   1. As noted above, the Applicant does not pass the character test under s 501 of the Act, and the Tribunal has considered whether it should exercise the discretion to refuse or grant the visa under s 501(1) of the Act having regard to the Minister's Direction No. 110.
   2. The Tribunal has given appropriate weight to information from independent and authoritative sources, and the primary consideration at clause 8.1 has been given greater weight than the other primary considerations, while the other primary considerations have been given greater weight than the other considerations, in line with the Direction.
   3. Having considered the specific circumstances relating to the Applicant, the Tribunal considers the protection of the Australian community from criminal or other serious conduct weighs moderately in favour of affirming the decision under review. The Applicant's conduct did not involve family violence and no weight has been given to that primary consideration. The strength, nature and duration of the Applicant's ties to Australia weigh in favour of the Applicant, while there are no minor children in Australia involved in this matter and no weight has been given to that primary consideration. The expectation of the Australian community weighs heavily in favour of affirming the decision. Of the other considerations, the legal consequences of the decision and the extent of the impediments to the Applicant if he was removed to a third country provide some weight in favour of the Applicant.
   4. While the strength, nature and duration of the Applicant's ties to Australia, and the legal consequences of the decision and the extent of the impediments to the Applicant if he was removed to a third country provide some weight in favour of the Applicant, the Tribunal has concluded the primary considerations of the protection of the Australia community and the expectations of the Australian community weigh heavily in favour of affirming the decision under review, and on balance, outweigh the considerations in favour of the Applicant.
   5. Having weighed up all the factors as part of a single evaluation, the Tribunal considers that the decision under review should be affirmed.

1. I turn now to the applicant's first ground of review.

1. The first ground of review concerns the ultimate cl 8(1) conclusion.
2. That ground of review is expressed as follows:

The Second Respondent was legally unreasonable by engaging in illogical reasoning in affirming the decision of the delegate dated 12 November 2024 to exercise their discretion to refuse to grant the applicant a safe haven visa.

Particulars

(a) In considering the 'protection of the Australian Community' under Direction 110, the Tribunal found that:

(i) the applicant was a low risk of reoffending (Reasons, [59]);

(ii) the applicant had significant protective factors (Reasons, [58]);

(iii) the circumstances the applicant finds himself in are "very different" those which existed at the time of his offending (Reasons, [58]);

(iv) the offending of the applicant was not of a kind that any risk of reoffending was unacceptable (Reasons, [61]);

(v) the risk to the Australian community of should future offending occur was low.

(b) The Second Respondent gave moderate weight in favour of affirming the delegate's decision to refuse in relation to 'protection of the Australian Community" (Ultimate Conclusion) (Reasons, [62]).

(c) The Second Respondent's Ultimate Conclusion is illogical given its findings referred to in (a) above.

(d) Further, and in the alternative, the Second Respondent's reasons are illogical in circumstances where the Second Respondent concluded that there was low risk of harm to the Australian community should the applicant reoffend while concluding that the "nature and seriousness" of the offending is "very serious".

(1) the Tribunal's task under cl 8.1 of Direction 110 is to consider prospectively the protection of the Australian community. This arises from:

(a) the words in cl 8.1(1) "will not cause or threaten harm to individuals or the Australian community";

(b) 8.1.2(1), "[i]n considering the need to protect the Australian community... from harm";

(2) the Tribunal concluded that:

(a) there was a low risk of harm to the community if further offences were committed;

(b) there was a low likelihood of re-offending;

(c) the offending was not of a type that any risk of re-offending was unacceptable; and

(3) when those findings are considered, the ultimate conclusion - that protection of the Australian community lies "moderately" in favour of affirming the refusal - is illogical. The Tribunal assessed the future conduct as both a low risk of occurring and a low risk of harm. It follows inherently from that conclusion that there is limited need to protect the Australian community. In those circumstances, the Tribunal could not have logically arrived at the conclusion that the weight ascribed to the protection of the Australian community weighs moderately in favour. The Tribunal had not paid credence to its own conclusion in T[60] that there was a low risk of harm.

1. The applicant made an alternative submission that there is an inherent illogicality in the Tribunal's conclusion that: (1) the risk to the Australian community if further offending was committed was low; and (2) the nature and seriousness of the applicant's criminal conduct was "very serious", as those two propositions are irreconcilable. In this regard, the applicant submitted that:

(1) the assessment of the risk under (cll 8.1(2)(b) and 8.1.2) assumes that an offence will occur;

(2) the cl 8.1(2)(a) conclusion and the cl 8.1(2)(b) conclusion cannot be reconciled;

(3) the co-existence of these conclusions is illogical particularly in circumstances where the offending by the applicant is not directed at a specific person (i.e, an assault or murder) but rather the community at large; and

(4) it follows there was an "irrational or illogical step in reasoning" which has affected the ultimate cl 8(1) conclusion.

1. Contrary to the applicant's submission, the Tribunal's assessment of the protection of the Australian community is not solely prospective. As the Full Court of this Court (Bromwich J; McElwaine and Yates JJ agreeing) explained in Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 140 at [17] with respect to the earlier Direction 79:

The assessment of the protection of the Australian community is both backward looking as to what has happened in the past, and forward looking as to the risks as to what may happen in the future. Direction no. 79 provides a list of mandatory factors to be considered, at [13.1.1] in relation to the nature and seriousness of the appellant's prior offending conduct; and at [13.2.2] in relation to the risk to the Australian community of the appellant committing further offences or engaging in other serious conduct.

1. At the heart of the applicant's first ground of review (in both its principal and alternative formulations) is a contention that it is absurd, as a matter of logic, to conclude both that:

(1) if the applicant commits a further offence or engages in other serious misconduct, then the risk to the Australian community would be low; and

(2) the nature and seriousness of the applicant's previous conduct was very serious.

1. This argument starts from the premise that the cl 8.1(2)(b) conclusion expressed in T[60] is a conclusion expressed in terms of [46(1)] above. In other words, that the Tribunal assumed a state of affairs in which the applicant commits a further criminal or other serious misconduct (the assumed state of affairs); and then assessed the risk to the Australian community presented by such a state of affairs as low. Such a construction, which I will refer to as the applicant's construction, is an available construction of T[60], if that paragraph is considered in isolation.
2. An alternative construction of T[60] is that the Tribunal, having considered both: (1) the nature of the harm to the Australian community on the basis of the assumed state of affairs; and (2) the likelihood of such a state of affairs coming to pass, concluded that as the probability of further offending was low, the risk to the Australian community was low.
3. The alternative construction should be preferred for the following reasons.
4. First, it accords with the Tribunal's decision when read fairly and considered as a whole (see [21] and [22] above). In particular:

(1) the Tribunal expressly referred to cl 8.1.2(2) of Direction 110, to which required it to have regard, cumulatively, to:

(a) the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious misconduct;

(b) the likelihood of the applicant engaging in further criminal or other serious misconduct, taking into account: (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);

(2) the Tribunal addressed each of the those matters, at T[44] to [46] and T[47] to [59] respectively; and

(3) the Tribunal then, at T[60], stated that it had "considered all the factors mentioned above, cumulatively", which is an obvious reference to cl 8.1.2(2).

1. Secondly, if the Tribunal had intended the applicant's construction, it is unlikely that it would have: (1) made an assessment of the likelihood of the applicant engaging in further criminal or other serious misconduct as such an exercise would have been otiose when the applicant's construction assumes that such misconduct will occur; or (2) referred in T[60] to a "cumulative assessment" as there would have been no need for such assessment.
2. Thirdly, the Tribunal's use of the phrase "should the non-citizen commit further offences or engage in other serious conduct" is clearly taken directly from cl 8.1(2)(b). That phrase cannot bear the applicant's construction in circumstances where cl 8.1.2(2) of Direction 110 expressly provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to the likelihood of the non-citizen engaging in further criminal or other serious misconduct. In these circumstances, the Tribunal's use of that phrase, albeit borrowed from Direction 110, is properly to be regarded as looseness of language or unhappy phrasing, to adopt the terms used in Wu Shan Liang at 271 to 272 when the Tribunal's Decision (and Direction 110) is considered fairly as a whole.
3. When the alternative construction is treated as the better construction of T[60], there is no inconsistency between the cl 8.1(2)(b) conclusion in T[60] and the ultimate cl 8(1) conclusion in T[62], as the latter conclusion takes into account at least both the cl 8.1(2)(a) conclusion in T[41], and the cl 8.1(2)(b) conclusion in T[60]. There is no inconsistency in a conclusion that the protection of the Australian community weighs moderately in favour of refusal of the visa when the consequences of past conduct are "very serious" and the risk of harm to the community is "low" are both taken into account. It follows that there is no illogicality or legal unreasonableness.
4. In any event, and assuming for the moment the applicant's construction of T[60], there is no necessary inconsistency between a finding that if the applicant commits a further offence or engages in other serious misconduct, then the risk to the Australian community would be low; and a conclusion that the protection of the Australian community weighs moderately in favour of refusal of the visa. That conclusion is informed not only by the matters in cl 8.1(2) specific to the applicant but also by the more general policy considerations in cl 8.1(1) and the principles in cl 5.2. Further, the applicant's contention assumes a "bright-line" boundary between "low" and "moderate" when there may not be such a boundary, and when the weight to be given to various considerations is a matter for the Tribunal.
5. For the above reasons, the applicant's first ground of review must fail.

1. I turn now to the applicant's second ground of review.

Further, and in the alternative, the Second Respondent misdirected itself in assessing the "protection of the Australian community" consideration in cl 8.1 of Direction 110.

Particulars

(a) The Second Respondent was required to consider the need to protect the Australian community per cl 8.1 of Direction 110.

(b) The applicant repeats the matters particularised in (a) and (b) to Ground 1 above.

(c) In arriving at the Ultimate Conclusion, the Second Respondent relied on its finding that the "nature and seriousness" of the applicant's offending as "very serious" in combination with the risk to the Australian community cumulatively in assessing prospectively the need to protect the Australian community.

(d) The task under Direction 110 is to consider the 'nature and seriousness' is to inform the assessment of risk to the Australian community, and thus a cumulative assessment of the nature and seriousness of the offence and the risk to the Australian community is an incorrect interpretation of the Second Respondent's task in considering cl 8.1 of the Direction.

(e) In the circumstances of its findings in the particulars at (a) to ground 1 above, the Second Respondent's attribution of "moderate weight" in favour of affirming the delegates decision in respect of cl 8.1 of Direction 110 was dependent on a cumulative assessment, which was erroneous.

(1) the applicant's complaint arises from the Tribunal's cumulative assessment of cll 8.1(2)(a) and 8.1.1 on the one hand and cll 8.1(2)(b) and 8.1.2 on the other;

(2) the need for the protection of the community is prospective - it focuses upon the future protection of the community;

(3) although the Full Court of this Court (Rangiah, Derrington and Rofe JJ) in BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14; (2025) FCR 150 at 168 to 169 [97] explained that the conclusion on the "nature and seriousness" informs the consideration of risk to the community (and thus the need for its protection), on a proper construction of Direction 110, that is its only function with respect to cl 8(1), as the assessment of "nature and seriousness" can only be useful to the assessment of risk;

(4) the ultimate cl 8(1) conclusion was not open in circumstances where the Tribunal had made the cl 8.1(2)(b) conclusion;

(5) it appears that the Tribunal engaged in balancing in cll 8.1(a) and 8.1.1 on the one hand and cll 8.1.2(b) and 8.1.2 on the other as competing factors, rather than the former informing the latter; and

(6) this approach is wrong and the Tribunal has misunderstood how to apply Direction 110.

1. For the reasons set out above, the submission that the consideration in cl 8(1) is solely prospective cannot be accepted. Although the focus is on the future protection of the community, the assessment to be made is made by reference to both past conduct and future risk.
2. The applicant's submission that the nature and seriousness of the non-citizen's conduct to date (which is to be assessed in accordance with cll 8.1(2)(a) and 8.1.1) does not exist as an independent consideration; and its only function is to feed information into an assessment of the risks to the Australian community of further offending (which is to be assessed in accordance with cll 8.1(2)(b) and 8.1.2) cannot be accepted.
3. Such a construction is inconsistent with the text of Direction 110, which:

(1) indicates in express terms when a consideration is to be given greater or lesser weight (e.g., cll 7(2) and 8.3(2)(a)) and contains no indication that the only function of the nature and seriousness of the non-citizen's conduct to date is to feed information into an assessment of the risks to the Australian community of further offending;

(2) at cl 5.2, sets out the principles to be applied, in terms sufficiently broad to include the nature and seriousness of the non-citizen's conduct to date and without any reference to this consideration being subservient to any other consideration;

(3) at cl 8.1(1), sets out matters which the decision-maker should keep in mind and have particular regard to, which is also expressed in terms sufficiently broad to include the nature and seriousness of the non-citizen's conduct to date and again without any reference to this consideration being subservient to any other consideration; and

(4) cl 8.1(2), requires the decision maker to give consideration to both cl 8.1(2)(a) (as supplemented by cl 8.1.1) and cl 8.1(2)(b) (as supplemented by cl 8.1.2). That is, both considerations are treated as independent considerations without either being subservient to the other.

1. I note also that the applicant cited no authority in support of his construction.

1. The application should be dismissed. Costs should follow the event.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman.