DVRL v Minister for Immigration and Citizenship [2025] FCA 876

(a) that the applicant could not pass the character test because he had served a term of imprisonment of 7 years for manslaughter and that accordingly the discretion under s 501(1) of the Migration Act to refuse to grant him the protection visa was engaged; and

(b) in deciding whether or not to exercise that discretion, the Tribunal was required by s 499 of the Migration Act to take into account the relevant iteration of the direction issued under that provision: Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA dated 7 June 2024 and commencing 21 June 2024 (Direction 110).

1. Paragraph 8 of Direction 110 lists the following five primary considerations required to be taken into account in making a decision to as to whether to refuse, cancel or revoke the cancellation of a visa under, respectively, s 501(1), s 501(2) or s 501CA(4) of the Migration Act, each of which are addressed under separate headings that follow:

(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 relevant primary consideration in issue before the Tribunal was the first: protection of the Australian community from criminal or other serious conduct. The paragraphs of Direction 110 relevant to that primary consideration are as follows:

(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.

8.1.1 The nature and seriousness of the conduct

[The Tribunal's assessment of the nature and seriousness of the applicant's manslaughter conviction was not in issue.]

8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(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 re­ offending; 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. Thus Direction 110 requires decision-makers to consider whether a range of factors weigh in favour of the cancellation, refusal or revocation of the cancellation of a visa when making such decisions under s 501. Protection of the Australian community is a primary consideration, and the highest priority of the Australian government: Direction 110 [8(1)], [8.1(1)]. As part of that assessment, decision-makers are required to consider the "risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct": [8.1(2)(b)]. That phrase is repeatedly referred to in these reasons, because it is the content of that obligation that lies at the heart of this proceeding.
2. Examination of the likelihood of future conduct that may cause harm is ordinarily an essential part of the assessment of risk. That proposition flows from both logic and authority: see Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 at [104] and [158] (Mortimer J); see also the consideration of Tanielu in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 (North, Jessup and Rangiah JJ). That is reiterated by Direction 110, which provides, in assessing risk, decision-makers must have regard to both the "nature" of the harm to individuals and the Australian public should the non-citizen engage in further criminal or other serious conduct, and the "likelihood" of the non-citizen engaging in such conduct: Direction 110 [8.1.2(a)] and [8.1.2(b)].
3. While it has been recognised that there is no prescribed way in which "risk" is to be assessed, that is merely to say that it is for the decision-maker to engage in the predictive assessment of risk and characterise the quality of any risk posed: see BSJ16 v Minister for Immigration and Border Protection and Border Protection [2016] FCA 1181 at [68] (Moshinsky J). But freedom given to the decision-maker, here the Tribunal, does not mean that they are entirely unconstrained when assessing risk for the purposes of applying Direction 110. The obligations imposed by particular paragraphs of the direction, such as [8.1(2)(b)] in this case, may give rise to constraints on the decision-maker, in the context of the evidence and submissions advanced by an applicant.

1. In the applicant's detailed statement of facts, issues and contentions before the Tribunal, he addressed the primary consideration of protection of the Australian community from criminal or other serious conduct. In that statement he:

(a) submitted that the Tribunal was required to give consideration to the nature and seriousness of his conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct, a reference to [8.1(2)] of Direction 110;

(b) did not dispute that:

(i) his manslaughter offence was very serious;

(ii) he had been convicted of less serious offences involving violence and committed against government officials;

(iii) he had committed multiple offences over a 29-year period, mostly more than 25 years ago, with the most recent being over 10 years ago in early 2014; and

(c) submitted that there was no trend of increasing seriousness in his offending.

1. As to the risk of reoffending, the applicant listed key aspects of his history, concluding that his risk profile had reduced since his last assessment in 2014 (being a report by a clinical psychologist, Mr Peter Champion) and that it was open to the Tribunal to find there was a low risk of reoffending, moderating the weight that might be given to his previous offences in favour of refusing the protection visa.
2. The applicant then asserted that granting him a protection visa would reduce the risk of him reoffending, as follows:

[92] The applicant contends that this requires the Tribunal to go beyond the nature and seriousness of his conduct and the risk of reoffending and to consider whether or not the protection of the Australian community is better served by the applicant being granted a permanent protection visa or remaining on a BVR.

[93] The applicant contends that the protection of the community is best served by granting the applicant a protection visa.

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

[95] This is supported by Mr Champion who noted in his psychological report that the applicant's reintegration in the community would be assisted by stable accommodation, ongoing medical support, monitoring in terms of substance abuse, involvement with a church and monitoring by mental health professionals (G 407).

[96] This is in contrast to the applicant's current circumstances as a BVR holder facing significant financial distress, a high risk of homelessness, social isolation and limited access to health benefits.

[97] For these reasons, the applicant contends that the Tribunal should not be satisfied that refusing the applicant's protection visa is necessary for the protection of the Australian community.

[98] In line with the Government's position that protection of the Australian community is its highest priority, this consideration carries significant weight against the exercise of the discretion under s 501(1).

1. The applicant also made submissions that remaining on a BVR would cause him significant hardship, including reduced access to housing, medical treatment, income from welfare benefits, and the impact of the curfew and electronic monitoring conditions. He also pointed out the additional entitlements he would have as the holder of a protection visa. This was supported by a statement he gave to the Tribunal, and a report from Mx Sid Pettit, a Legal Aid NSW senior case worker/social worker.
2. In his reply submissions to the Tribunal, the applicant went a step further and asserted that being in the community on a BVR, rather than being in the community on a protection visa, would increase his risk of reoffending by increasing his risk features, including:

(a) by the operation of the curfew curtailing his movements and liberty without demonstrable benefit;

(b) by the electronic monitoring due to stigmatising him; and

(c) by the risk of committing an offence for non-compliance with those BVR conditions, which carries a mandatory gaol term.

1. The Tribunal addressed the primary consideration of the protection of the Australian community at some length from ART[48] to [128]. The Tribunal specifically addressed the applicant's submission that granting him a protection visa would reduce the risk of reoffending as follows (footnotes omitted, otherwise verbatim, including as to spelling):

Does the protection of the community weigh in favor of granting the Applicant a permanent protection visa?

[50] The Applicant argues that the protection of the community favours the grant of a permanent protection visa. He argues the grant of a permanent visa will provide better protection for the community because a permanent visa will reduce his financial stress and improve his financial stability, provide him with access to housing, increase his opportunities for integration in the community, and increase his access to medical treatment. This will address his criminogenic needs because his psychologist made these recommendations to assist his reintegration into the community.

[51] It is further argued that being in the community on a BVR, with the conditions of electronic monitoring and a curfew, increases the risk to the community. It is argued a curfew is not necessary to protect the Australian community as the Applicant has not committed an offence during his curfew hours, it may require the Applicant to stay in a stressful situation and heighten the risk of a violent offence, and precludes him from entry level positions such as stacking supermarket shelves or night-time factory work. It is argued this prevent him staying with friends or family members for an evening or going on holidays.

[52] The electronic monitoring conditions are said to also be unnecessary as the Applicant's offending was not tied to a particular geographical area, and increases the risk to the community as it makes the Applicant anxious and stressed and may lead to him viewing himself as a criminal which in turn increases his risk of offending.

[53] It is also submitted as breach of these conditions results in a mandatory 12 month sentence of imprisonment which will be counterproductive for his rehabilitation. It is argued that the BVR increases the risk to the community, and the protection of the community should weigh in favour of granting the Applicant a permanent protection visa.

[54] For the following reasons, these submissions should be rejected:

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

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

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

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

• The psychology report relied on by the Applicant in support of the submission that a permanent visa will provide protection to the community, lists support services as one factor in predicting how he is likely to behave in the community. Support services are factors that the psychologist considers will assist in his reintegration, rather than addressing risk the Applicant poses to the community. There is a significantly longer list of factors in the psychology report that affect risk which have no relationship to his visa status or his reintegration into the community. These include his culture and experience of violence, the age at which he commenced violent offending, his likely relationship status, the loss of structure from being released from immigration detention, his substance use, his willingness to access services, and his involvement in the Church.
• The Applicant has a Medicare card and a Healthcare card, and he has access to medical treatment and reduced cost medication.
• He is currently receiving a Centrelink payment of special benefit, and while the grant of this payment is discretionary, the Applicant has not provided any information to show this payment was granted for a particular period or will end. His payments will otherwise continue unless he fails to comply with the provisions of the Social Security Act 1991 (Cth) or the Social Security (Administration) Act 1999 (Cth). He has financial security.
• The curfew condition requires the Applicant to remain at a notified address between 10pm and 6am. The grant of the Applicant's current BVR is accompanied by information that he can notify the Department of his location by 12 noon the same day he wants to stay in another location. This condition will not prevent him staying with friends or family or going on holidays. The issue of staying in an environment where he is at high risk of reoffending does not support his rehabilitation or that the risk to the community has decreased.
• The Applicant have [sic] evidence that he plans to progress his artwork and perhaps to provide art lessons. He said he rarely leaves his residence, and complying with a curfew does not cause him difficulty.
• The Applicant currently has accommodation arranged for him by support services and says he would like to live with his friend in regional NSW. He has a life skills educator assisting him for 9 hours a week and who can assist him in learning how to access the rental market should he wish to access alternate accommodation. While he is not eligible for public housing, his accommodation needs are met.

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

[60] Proceeding to the remaining factors in the protection of the community, I have considered 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 reasoning in the above paragraphs, and in particular the dot points at ART[58] reproduced above concerning the effect on the applicant of remaining on a BVR, need to be read in the context of some of the Tribunal's later reasoning and conclusions at ART[96]-[97], [98]-[100], [101]-[106], [123]-[124] and [169]-[170]:

(a) At ART[96], the Tribunal set out Direction 110 [8.1.2] in full, then commented on what was required by that paragraph at ART[97] (footnotes omitted):

This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct. It also requires an assessment of the likelihood of the Applicant engaging in such conduct. There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.

(b) At ART[98]-[100] the Tribunal addressed the nature of harm should the applicant commit further offences, concluding at ART[100] that:

As there is a risk of death should the Applicant reoffend in a similar way, in applying cl.8.1.2(1) of the Direction, the tolerance of any risk reduces. The harm is such that any risk of it being repeated is not acceptable.

(c) At ART[101]-[106] the Tribunal considered the likelihood that the applicant would commit further offences, concluding at ART[106] that:

In summary the reports before me, while 10 years or more old, consistently state the Applicant remains at least a moderate risk of violent offending and describe a lengthy history of violence.

(d) The Tribunal then addressed what it described as "protective factors", being factors that protected against reoffending, such as community support, government provided financial support and medical services support. It concluded:

[123] There is currently intensive support for the Applicant in the community, and this is acknowledged to mitigate the risk of recidivism. It is implicitly acknowledged that the Applicant is a risk to the community without support services. The Applicant has the long- term support of an advocate and other [sic] involved in research about his country of origin. However, the accommodation and support they can provide is untested in personal day to day contact with the Applicant, given his history of aggression I consider it unknown if this is sustainable.

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

These observations necessarily relate to the situation that prevailed while the applicant was in the community on the BVR, and do not address the differences between this situation and what would occur if he were granted a protection visa.

(e) The Tribunal also considered the legal consequences of refusing to grant the applicant a protection visa, and concluded:

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

[170] Overall, and given the condition that prevents the Applicant contacting children of the relationship with the victim of the offence, the legal effect of the decision attracts some weight against refusing to grant the visa.

[125] The Tribunal is to consider evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the Applicant's most recent offence.

[126] There is little evidence of rehabilitation from the date of the manslaughter conviction. The Applicant engages in artwork and states he has not used alcohol or other drugs for over 20 years. I do not consider there is information before me to show he has engaged in rehabilitation about the use of threats and violence towards others, or that he has significantly changed his approach to being frustrated or to achieving what he wants.

[127] I find that there is a moderate likelihood the Applicant will reoffend, and that risk to the community is severe.

1. As noted above, under Direction 110, consideration of "risk" is part of the broader consideration protection of the Australian community. There is properly no suggestion that ART[96]-[106], which address [8.1.2] of Direction 110 directly, should be read in isolation from the remainder of the Tribunal's reasons.
2. It is convenient at this point to address an argument advanced by the applicant as an aspect of ground 1, otherwise considered below, to the effect that the Tribunal did not adequately consider the time he spent in the community as bearing on the rehabilitation that he had achieved by the time of the Tribunal decision, in turn bearing on the necessary risk assessment mandated by Direction 110 [8.1(2)(b)]. I am unable to accept this argument in light of ART[126] above. The Tribunal concluded that there was little evidence of rehabilitation since the date of the manslaughter conviction, a period which encompasses the two months between his release from immigration detention and the Tribunal hearing.

Ground 1 - Tribunal erred in its approach to weighing the applicant's risk to the Australian community

1. The applicant's first ground of review asserts (omitting particulars) that the Tribunal:

made a jurisdictional error in that it failed to consider, or properly consider, mandatory relevant considerations, or alternatively failed to consider and assess a clearly articulated argument or failed to properly conduct a review, further and alternatively failed to make factual findings necessary to provide an intelligible justification for its decision, and failed to consider the direct legal consequences of the decision.

1. The substance of the applicant's case for this ground of review is that, having regard to Direction 110 [8.1(2)(b)] and [8.1.2], and the fact that he would be in the community whether or not the protection visa was granted, the Tribunal was required to compare the risk he posed by reference to what he described before the Tribunal and continues to describe as two realistic "counterfactuals", namely his presence in the community holding a protection visa, compared to his presence in the community holding a BVR. While this ground is principally framed as an error arising from a failure to consider mandatory relevant considerations, the substance of it, as presented in the applicant's submissions orally and in writing, is that the Tribunal misapplied or misunderstood the mandatory relevant consideration in Direction 110 [8.1(2)(b)] and [8.1.2] (which gives further detail to [8.1(2)(b)]) in the particular context of him being a member of the "NZYQ cohort".
2. It should be noted that, in light of the arguments addressed below, Direction 110, although given after NZYQ was decided by the High Court, does not directly address the fact that the NZYQ cohort is no longer liable to be removed from the community through detention. That is, the guidance that the Tribunal received from Direction 110 was not tailored to this group of non-citizens.
3. The applicant submits, and the Minister does not apparently disagree, that, in most cases, the assessment of whether a non-citizen's risk of harm to the Australian community - particularly with respect to the likelihood they will do harm - is relatively straightforward. That is because the consequence of the refusal, cancellation, or non-revocation of cancellation of a visa will be that the non-citizen will not be able to remain in or enter the Australian community. The unsuccessful visa applicant (or former visa holder) who is already in Australia will ordinarily be in immigration detention until removal takes place. The assessment thus only requires a decision-maker to consider the likelihood and nature of harm if the visa is granted or reinstated, as the consequence of continued refusal or cancellation will be the person's removal from the community and the associated removal of the risk of harm.
4. However, the applicant submits that that assessment is more complex for non-citizens who are affected by NZYQ, as they will remain present in the community even if a visa is refused or cancelled, or a visa cancellation is not revoked, and may accordingly continue to pose some level of risk by virtue of that presence. On the applicant's argument, in this case, whether the consideration of "risk" favours the grant of a visa or not requires assessment of whether the risk is greater under the realistic counterfactuals he posits of remaining in the community on a BVR, or remaining in the community on a protection visa. At this point, the Minister's position diverges, first in denying that there was any obligation to consider the posited counterfactuals as being a particular mode in which the Tribunal had to conduct the necessary risk assessment, and to argue that in any event, the Tribunal found that there was insufficient clarity in the evidence before it to conduct the assessment that the applicant asserts was required.
5. A similar argument to that of the applicant was posed by the appellant in Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84, but rejected. That decision was only handed down a few working days before the hearing in this proceeding, so unsurprisingly it was not raised at the hearing. It is appropriate to address it due to its possible determinative relevance, before turning to the arguments that were advanced. At first blush, Mizen appears to support the Minister's argument on appeal, but upon closer consideration it does not do so.
6. In Mizen, the visa of a non-citizen who had been convicted of child exploitation material offences was cancelled. A decision by a delegate of the Minister not to revoke that cancellation was affirmed by the Administrative Appeals Tribunal (AAT). Mr Mizen argued that applying [8.1.2(2)] of former Direction 99, which was identical in terms to the same paragraph in the present Direction 110, required assessment of the risk to Australian children if he was allowed to remain in the community, compared to the risk he posed if he were not. His argument was that, given the nature of child exploitation material offences, he might have posed a risk to the Australian community even if he were not physically in the country, and there was no geographical limitation to [8.1.2(2)]. It was said that the AAT therefore misunderstood or misapplied Direction 99.
7. Mr Mizen's argument was rejected by the Full Court (Feutrill, Vandongen and Banks-Smith JJ) which reasoned as follows:

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

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

(Emphasis added.)

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

Therefore, an alternative, and equally correct, way in which to describe the task that a decision-maker is required to undertake when having regard to the consideration in para 8.1.2(2)(b), is that the decision-maker is to have regard to the likelihood of a non-citizen engaging in further criminal or other serious conduct if the non-citizen were to be granted permission to travel to and enter Australia or to remain in Australia.

(Emphasis in original).

1. The Full Court's conclusions as to the proper construction of [8.1.2(2)] must be read in that context. It was entirely apposite in that case, where the non-citizen would not be permitted to remain in the community if his visa application was not ultimately successful. It is of little assistance however, in considering the application of [8.1.2(2)] to non-citizens in the NZYQ cohort, who are in the distinctive position in that they will remain in the community regardless of whether the visa is granted.
2. Once NZYQ was decided, members of the cohort affected by it were required to be released from immigration, even if they did not have a visa, and soon after by being granted a valid BVR. By the very nature of their circumstances previously giving rise to indefinite detention, they ordinarily cannot be removed from the country. At the time of the Tribunal decision, alternative arrangements with third countries were not available, a circumstance that is therefore not before me and cannot and should not be taken into account. The legislative response to NZYQ was to create a special bridging visa - the various iterations of the BVR described in the introduction to these reasons - regularising the immigration status of that cohort.
3. As a result of these arrangements, the applicant, as a member of the NYZQ cohort, would remain in the community whether his protection visa was granted or refused. That in turn means that Mizen reasoning, which holds that the Tribunal is not required to compare the risk which may flow from the grant of the visa to the risk posed from the non-citizen if they are not granted permission to enter or remain in Australia, does not apply to the present applicant, or to those in a like position.
4. Where a visa applicant or former visa holder will remain in the Australian community regardless of the visa decision, and depending on the circumstances, including the case that was advanced by a visa applicant (or by a former visa holder), there may be a need for an evaluation of competing risks and mitigations of the risks which flow from their presence in the community were they to be granted a particular visa, compared to the risk which flows from their presence were they not. However, I decline to elevate this to the status of a separately identified and specific obligation imposed upon the Tribunal by Direction 110 to conduct a comparison of competing risks in the manner of the counterfactuals posited by the applicant. Such an argument would be difficult to maintain, given Direction 110 has plainly not been framed in a way that contemplates the NZYQ cohort. Rather, in applying Direction 110 [8.1(2)(b)] to this case, the Tribunal had an obligation here to make an assessment of the risk posed if the applicant remained on a BVR and if he was granted a protection visa, because of the evidence the applicant adduced and the arguments he made: see Hong v Minister for Immigration and Border Protection [2019] FCAFC 55; 269 FCR 47 at [64]- [66] (Bromwich and Wheelahan JJ, Logan J dissenting).
5. Applied to the present context, Direction 110 [8.1(2)(b)] continues to require the Tribunal to consider whether the risk to the Australian community was such as to preclude the grant of the permission to the applicant to remain in the Australian community under a protection visa, or to be a contributing reason for that conclusion. In the ordinary case of the kind identified in Mizen, which does not include the NZYQ cohort, that would not call for any risk assessment to be carried out in the event of the visa being refused. However, in this case any risk posed by the applicant's continuing presence in the community under a protection visa would not be avoided altogether if the protection visa was not granted, because being in the community was required on the constitutional basis identified in NZYQ.
6. It follows that, as a practical matter, the required assessment of the "risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct" could give rise to a risk arising by refusal of the grant of a protection visa to a member of the NZYQ cohort, who nonetheless is going to remain in the Australian community. But even then, it does not turn only upon a comparison between any differences in the situation arising from two different visas, but upon all of the factors bearing on risk.
7. The possible risk assessment outcomes in any given case involving a member of the NZYQ cohort could be that refusal of the protection visa would result in no discernible or ascertainable difference in risk, a higher risk, or a lower risk, to the Australian community. In the case of the applicant, this rose above the level of abstract or conceptual, because he expressly relied upon evidence and submissions to establish his asserted higher risk arising from refusing him a protection visa. He sought to do that by, inter alia, comparing his existing circumstances in being in the community on a BVR, and favourable differences he asserted by reason of being in the community on the protection visa he sought. There was no issue of him being eligible for a protection visa but for the operation of s 501(1) in the context of him failing the character test.
8. It is the juxtaposition of the obligation imposed upon the Tribunal to assess the "risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct" in Direction 110 [8.1(2)(b)], and the evidence and argument advanced by the applicant in the conduct of that assessment that gives rise to the present contest. The applicant contends that the Tribunal did not go far enough, cast in terms of competing counterfactuals, in substance challenging the adequacy of the assessment of risk mandated by Direction 110 [8.1(2)(b)]. The Minister contends that the Tribunal went as far as it could on the evidence that was before it, and ultimately concluded that any differential risk as between the applicant remaining on the BVR and instead being in the community on a protection visa was speculative. This calls for a close consideration of the passages in the Tribunal's reasons relied upon by the applicant, in the context of the rest of those reasons.
9. The applicant ultimately relies upon the asserted inadequacy of the reasoning in the dot points in ART[58] addressing the submissions the applicant made about the effect of being on a BVR and finding that they were not supported by the evidence. The applicant relies also upon a number of other paragraphs of the Tribunal's reasons as leading up to, or helping to understand, those dot points, being in particular ART[55] and [56], described as building to ART[58], and also ART[123]-[124] and ART[169]-[170] to interpret those dot points.
10. The Tribunal may be seen to have adopted an approach that was appropriate for ordinary cases in which the binary outcome was the visa applicant being, or not being, in the community, as a result of the visa decision. This is most apparent at ART[55] (verbatim):

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

1. The first sentence seems to suggest that, by the applicant arguing that any risk he posed to the Australian community would be reduced if he were on a protection visa, he was conceding that he did in fact pose a risk to the community, and that this was to be assessed without going any further. This is the first sign of the Tribunal's reasoning departing from the broader task of risk assessment in accordance with Direction 110 [8.1(2)(b)] in this case, as described above. Without descending to impermissible merits review, what the applicant was arguing is better understood as being, given his prior offending, that there was a requirement imposed upon the Tribunal to assess the nature and extent of any risk he posed to the community should he reoffend.
2. The second sentence could be read in two ways. The first and more benevolent interpretation is that the question for the Tribunal is not what would be best for the applicant. That would be uncontroversial, but it is an improbable reading as the applicant's focus was on the assessment of any risk (which he separately submitted was low), rather than there being a denial of there being any risk at all. However, that seems to be a rather pointless thing for the Tribunal to be saying. The alternative and better reading of the second sentence is that the Tribunal was saying it was not required to consider the impact that the visa would have on factors that would reduce the risk of the applicant's reoffending.
3. It is well-established that this Court is not to read the decisions of an administrative decision-maker with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). However, this is no licence to shelter reasoning from scrutiny and interpretation. If a determinative, or otherwise important, passage in a decision-maker's reasons, fairly read, reveals error, this Court is entitled to act upon it in the course of judicial review. The most obvious and logical meaning attributable to ART[55] is to be preferred. The Tribunal was denying a need to carry out the broader risk assessment I consider was necessary in this case, described above.
4. The approach is made clearer where the Tribunal concludes:

(a) at ART[59] that "...the link between having a permanent visa and the protection of the community is tenuous [at] best and I do not accept the submission that the protection of the community weighs in favour of granting the visa" - this involved an assessment of risk associated with the applicant being granted a protection visa, without engaging in a further comparison of this risk against the circumstances in which a protection visa is not granted; and

(b) at ART[124] that "[w]hile there are factors that will reduce the Applicant's risk of reoffending I do not consider that these to address to a significant degree the risk to the community given his longstanding patterns of behaviour" - here, the "factors" considered by the Tribunal were those submitted to reduce his risk of re-offending under the prevailing circumstances in which the applicant was in the community on a BVR. The Tribunal here did not seem to have engaged in the necessary forward-looking assessment of risk in the event that a protection visa was granted, let alone any comparison between the two.

1. The Tribunal's reasons strongly suggest that the Tribunal has considered that once it was satisfied that the applicant poses a high enough risk, the consideration of the protection of the Australian community favours not granting a protection visa. That was further made clear by the fact that there was no meaningful forward-looking assessment of the risk posed by the applicant if he remained in the community on a BVR. The Tribunal was not taking the additional step of asking whether the level of risk if the applicant remained on a BVR was higher than the risk posed if the protection visa was granted. This reasoning would be entirely appropriate for a non-citizen who is not affected by NZYQ. In this case, given the submissions and evidence that were before the Tribunal, and the fact that the applicant is affected by NZYQ and would remain in the community regardless of whether the protection visa was granted, it needed to do so. That conclusion is further supported by the fact it was aware that those were the two possible legal consequences of its decision: see ART[169]-[170].
2. The final step is to consider the dot points in ART[58], because that is where the applicant's submissions are considered by reference to the evidence. The applicant's argument is that rejecting a number of his submissions as not being supported by the evidence did not entail any engagement with the necessary risk assessment in order to meet the requirement of Direction [8.1(2)(b)]. The Minister submits that ART[58] discloses that the Tribunal did consider the applicant's submissions about the effect of being of being a BVR, but that does not grapple with the point that the applicant was making.
3. The task required by Direction 110 [8.1(2)(b)] was to assess risk to the Australian community in all the circumstances. In the particular circumstances of this case, that did require at least an attempt to evaluate the risk if the protection visa was granted as compared to the prevailing risk arising from the applicant being in the community on a BVR. That the evidence relied upon by the applicant as to how the protection visa would affect the risk he posed to the community was "speculative" to an extent did not discharge the Tribunal from taking this final step in its assessment. The task of risk assessment required by Direction [8.1(2)(b)] was thus not completed by reference to the case that the applicant advanced in relation to it. That is sufficient to establish a jurisdictional error, because it cannot be said that there was no realistic possibility of a different outcome had that taken place as required. It will be a matter for the Tribunal on remittal to consider the competing risks for the purposes of the assessment mandated by Direction [8.1(2)(b)].
4. It follows that ground 1 succeeds.
5. For completeness, I note that the applicant placed reliance on CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA at [56]-[59] (Owens J). I do not consider that judgment took the argument much further. The case bears a factual similarity to that here, as the applicant there was also in the NZYQ cohort. An argument was put there that the likelihood of the applicant committing violence would be lower if he was granted a visa, in that case because he was unable to access the National Disability Insurance Scheme on a BVR and he suffered from serious mental health problems that increased the risk he posed.
6. The power being exercised by the Minister under s 501BA in CRRN is a very different and open-ended power to the power to refuse a visa on character grounds under s 501(1), turning as it invariably does upon the political assessment of the national interest, as failing the character test is seldom an issue. The relevant test was therefore whether it was in the national interest for the Minister to override the AAT in revoking the protection visa cancellation, which is well-established as a political question, with the Minister, within the bounds of legal reasonableness, having latitude to determine what is and is not in the national interest. In any case, the outcome of the case turned on the particular line of reasoning adopted by the Minister, with Owens J finding it amounted to legal unreasonableness: see [56], read with [22(a)]. It is thus of limited assistance in determining the obligation of the Tribunal here in applying Direction 110 in the circumstances of this case.
7. Although ground 1 has succeeded, it is appropriate to deal with the remaining arguments as this decision may not be the final resting place for this case.

Ground 2 - Tribunal failed to consider arguments or reached conclusions that lacked an intelligible basis

1. The applicant contends that the Tribunal's findings at ART[58] "failed to consider materials or arguments put forward by the applicant, or reached conclusions as to the evidence that lacked an intelligible basis and were legally unreasonable." This ground relates to services that would be available to the applicant if he held a BVR, and to evidence led by the applicant concerning the duration of such benefits or support, including evidence in the form of the Mr Champion's 2014 clinical psychologist report.
2. The applicant makes a number of assertions in support of this ground of review. First, he contends that the Tribunal at ART[58] at the first dot point "rejected" Mr Champion's 2014 clinical psychologist report as irrelevant to the assessment of the risk he posed. I am unable to accept that this is the correct way to read that passage of the Tribunal's reasons. It is quite to the contrary. The Tribunal identified support services as only one factor going to how the applicant would behave in the community, and referred to a longer list of other factors that would affect his behaviour, which were unrelated to his visa status. That was an accurate way to characterise the report's findings. The report was considered in the context of the Tribunal addressing, and ultimately rejecting, the case that the applicant was making that protection of the community was a factor in favour of granting him a protection visa: see at ART[55] to [58]. The Tribunal was entitled to regard this argument as being tenuous for the reasons it gave, being an evaluative task for it alone to conduct as part of its merits review. It should also be remembered that the Tribunal considered the report in the wider scope of the risk assessment required by Direction 110 [8.1.2] later in its reasons (at ART[96]-[124]).
3. The applicant's second point is that the Tribunal's reasons at the third dot point to ART[58] contained an error in saying that he had not shown that the benefits he would receive would end at a particular point, which was contrary to the evidence from Mx Pettitt (a Legal Aid NSW senior case worker/social worker) and from factsheets provided to the Tribunal. But this dot point did not refer to the availability of benefits generally to the applicant. It referred specifically to the availability of the "special benefit" allowance that the applicant was receiving from Centrelink. According to the evidence of Mx Pettitt, this allowance was not conditional on his visa. This was a different payment to the Status Resolution Support Services (SRSS) program, which would expire in September 2025, according to Mx Pettitt's evidence and the Department of Home Affairs factsheet relied upon before the Tribunal. The Tribunal considered that, while payment the payment of the special benefit was "discretionary" ... "[h]is payments will otherwise continue unless he fails to comply with the provisions of the Social Security Act 1991 (Cth) or the Social Security (Administration) Act 1999 (Cth)". There was no error in that reasoning.
4. In any case, if there was any confusion in expression, the Tribunal considered Mx Pettitt's evidence as to the SRSS ending further and in a way that the applicant has not taken issue with, at ART[122]-[124]. The Tribunal plainly took those points into consideration in evaluating the applicant's risk of reoffending. I am not satisfied that it has been established that the Tribunal failed to consider important evidence or submissions, let alone to have done so to the point of amounting to jurisdictional error.
5. The third point advanced by the applicant is that the Tribunal was obliged to consider the correctness of the applicant's submission that his risk to the community would be increased if he was required to wear an electronic monitoring device. The Tribunal summarised this submission at ART[52]:

The electronic monitoring conditions are said to also be unnecessary as the Applicant's offending was not tied to a particular geographical area, and increases the risk to the community as it makes the Applicant anxious and stressed and may lead to him viewing himself as a criminal which in turn increases his risk of offending.

1. The applicant asserts that it was not enough for the Tribunal to refer to the options that the applicant had to make representations to the Minister as to why that condition should not be imposed.
2. The problem for the applicant is that the Tribunal at ART[54] rejected the set of submissions of which this was a part, for the reasons that followed at ART[55]-[58]. The Tribunal had plainly considered the conditions accompanying a BVR in the first sentence of ART[56]: "This submission also requires me to accept that the conditions placed on the Applicant on a BVR will not protect the community". I am not satisfied that more was required of the Tribunal than that to consider this submission in deciding whether or not to exercise the discretion not to grant a protection visa.
3. It follows that I am not satisfied that there was any failure on the part of the Tribunal to consider materials or arguments put forward by the applicant, or that any conclusions were reached that lacked an intelligible basis or were legally unreasonable in a way that went beyond the error identified already in ground 1. It follows that the ground 2 must fail.

Ground 3 - Tribunal applied the wrong legal test and asked itself the wrong question

1. Shortly after the applicant's submissions were filed on 17 June 2025, Sharrif J delivered judgment in Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667 on 20 June 2025. The applicant's third ground relies upon the type of error that was found to have occurred in Montes - namely, that by erroneously referring to the "revocation" of a cancellation decision in parts of the Tribunal's reasons, rather than to a refusal to grant the protection visa, the Tribunal applied the wrong test in the course of its reasoning.
2. It is accepted that erroneous wording was used in certain paragraphs of the decision, and that elsewhere in the decision, the Tribunal used language suggestive of the correct test, including throughout the entirety of its conclusion at ART[176]-[184]. Despite this, the applicant contends that the repeated nature of the errors, as well as the subject matter to which the erroneous paragraphs relate to, should allow this Court to find that the incorrect language used were not slips but rather material errors made by the Tribunal.
3. I have carefully considered each of the seven paragraphs at which the Tribunal erroneously referred to not revoking the cancellation of the applicant's visa: at ART[24], [34], [129], [132], [143], [147] and [149], and address each below. In that regard, it should be noted that the Tribunal hearing took place on 20 November 2024, and the decision was handed down on 6 December 2024, with 11 working days in between. The reasons comprise 184 paragraphs over 39 pages. None of that will save the reasons if the error is more than an infelicity, which actually affects the decision, but it does provide context for what I readily interpret as a failure to proofread the reasons carefully enough. I do not consider that this constitutes some error in understanding by the Tribunal. The question is whether the errors have affected the reasons in a way that is sufficiently consequential to vitiate them. I therefore make the following observations about those erroneous paragraphs, as well as some contextual paragraphs surrounding them:

(a) ART[6] plainly states that it is the decision of a delegate of the Minister to refuse to grant the applicant a protection visa that is that decision being reviewed by the Tribunal. There are a great many references to the refusal of that visa: ART[7],

(b) ART[24] is a short statement of the issues containing the error. It cannot be said to have been in any way determinative.

(c) At ART[29], the correct provision is identified and a reference made that the Minister "may refuse" to grant a visa to a person who does not pass the character test.

(d) ART[31] is a comment at the conclusion of an overview of the legislative framework, which commences at ART[29] by identifying the correct question being decided, and followed at ART[34] to a reference to the remaining question being whether the application for a visa should be refused. In that context, ART[31] is no more than a slip.

(e) There is no further error made until ART[129], with the correct test being stated at ART[57] and [128]. The Tribunal's consideration of the central issue of protection of the Australian community concluded at ART[128]. It is therefore difficult to see how the result could have been affected by the errors appearing elsewhere.

(f) The erroneous references at ART[129] and [132] are the first and last paragraphs dealing with family violence committed by a non-citizen. Those passages are discussing Direction 110 [8.2], which is the consideration of family violence committed by the non-citizen. The only part that refers to the applicant, at ART[131], records that the applicant's main conviction was described as being the manslaughter of his de facto partner. The error then appeared in the conclusion that that act of family violence weighed in favour of "not revoking the cancellation of the Applicant's visa": at ART[132]. There is no other challenge to the finding made in relation to that consideration.

(g) At ART[138], it is stated that "I consider there is little impact on immediate family members if he is not granted a visa." The following two paragraphs indicate a nuanced understanding of the differences between cancellation and revocation on the one hand and refusal to grant a visa on the other, and the correct test is stated in the conclusion:

[139] Consideration of the Applicant's other ties to the Australian community is only required in considering whether to cancel a visa, or not to revoke the cancellation of a visa. It does not apply to a refusal to grant a visa. In any event, the Applicant has been unable to build ties to the community, other than with those who have supported him while in detention, due to his lengthy incarceration and prolonged detention.

[140] Overall, this consideration is given slight weight against refusing to grant the Applicant a visa.

(h) The error at ART[143] was in finding that having considered the best interests of minor children as set out in Direction 110 [8.4], this "weighs neither for nor against revoking the cancellation of the Applicant's visa", and accordingly the error did not affect the outcome of the decision.

1. None of the above errors are enough to vitiate the Tribunal's reasons.
2. The errors at ART[147] and [149] were under the heading of the expectations of the Australian community. They initially present as perhaps the most consequential errors, such that it is appropriate to reproduce the entirety of this part of the Tribunal's reasons:

[144] The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Clause 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.

[145] Clause 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.

[146] Clause 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

[147] This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.

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

[149] In weighing this consideration, the Tribunal is guided by the principles in cl 5.2 of the Direction. In applying these principles, I find this consideration weighs heavily in favour of not revoking the cancellation of the Applicant's visa.

1. In context, it is difficult to accept that ART[147] is even an error as opposed to an irrelevant infelicity. That is because the expectations of the Australian community are the same in principle for the non-grant of a visa, and the non-revocation of the cancellation of a visa.
2. I consider ART[149] contains the starkest of the errors, because it is a consideration found to weigh heavily, but erroneously, in favour of not revoking the applicant's visa, rather than in not granting the applicant the protection visa he was seeking. However:

(a) the early part of the next section dealing with the legal consequences of a decision under s 501 or 501CA makes observations consistent with a correct understanding of what is being considered, at ART[153]:

A legal consequence of refusing the visa under s 501(1), as specified in cl9.1.1(3) of the Direction is that s 48A of the Act bars the person making a further application for a protection visa while in the migration zone unless the Minister decides s 48A does not apply. The person is prevented from any other type of visa except a BVR.

(b) the conclusion of the next section dealing with the legal consequences of a decision under s 501 or 501CA correctly concludes at ART[170]:

Overall, and given the condition that prevents the Applicant contacting children of the relationship with the victim of the offence, the legal effect of the decision attracts some weight against refusing to grant the visa.

(c) the overall conclusion commences correctly at ART[176]:

The Applicant does not pass the character test, and I must consider whether his application for a visa should be refused.

(d) The discussion towards the end of the overall conclusion reveals a clear understating of what was being decided and the competing considerations, at ART[182]:

In the circumstances of this case, including consideration of the Applicant's prolonged detention, I consider the general approach should be adopted that greater weight is given to the protection of the Australian community, and to the primary considerations. The protection of the community, that the conduct constituted family violence and the expectations of the community weigh heavily in favour of not granting the visa. The Applicant's ties to Australia attract some weight in favour of not refusing to grant the visa. The best interests of minor children weighs neither for nor against refusing to grant the visa. Of the other considerations, the legal consequences of the decision attracts some weight in favour of not refusing to grant the visa.

(e) the penultimate paragraph of the overall conclusion correctly states at ART[182]:

Looking at these factors, I consider the Applicant's application for a visa should be refused and the decision under review is affirmed.

1. I am therefore of the view that the error at ART[149], and elsewhere, are best understood as no more than infelicities that have not ultimately affected the evaluation or determination of anything.
2. Properly considered, this is a very different case to Montes, where the statement of the incorrect test was repeatedly used throughout the Tribunal's reasons: at ART[59]. Overall, I find no reason to doubt that the Tribunal correctly understood the issues that were before it and the correct test to be applied.
3. It follows that ground 3 must also fail.

1. As the application has succeeded on ground 1, the decision of the Tribunal must be set aside and the application for merits review remitted for consideration in accordance with these reasons. There is no apparent reason why costs should not follow the event.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.