Risk to community on BVR versus protection visa?

The Applicant applied for a protection visa.

A delegate found that s 36(2)(a) of the Migration Act 1958 (Cth) was satisfied, meaning that the Applicant was owed protection.

However, a delegate refused to grant him a visa under s 501(1) of the Act.

On review, the Tribunal was bound to apply Direction 110, para 8.1(2)(b) of which read:

8.1 Protection of the Australian community

...

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

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

Para 8.1.2 of Direction 110 read:

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:

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).

c)    …

By the time that the Tribunal refused the visa refusal, the Applicant had been granted a BVR visa, being a person within the cohort affected by NZYQ.

At [24] of its judgment, the Federal Court (FCA) described the Applicant's argument made to the Tribunal as follows:

24 ... 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 ...

Some of the questions to the FCA were as follows:

Question 1: Was the guidance that the Tribunal received from Direction 110 tailored to the cohort affected by NZYQ?

Question 2: Is the reasoning in [74] of Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84 "essentially one of logical reasoning of the kind that was of universal application before NZYQ was decided, and remains applicable outside the NZYQ cohort"?

Question 3: At the time of the Tribunal decision, alternative arrangements with third countries were not available. Is that a circumstance that is therefore not before the Court and cannot and should not be taken into account?

Question 4: Having regard to Direction 110 [8.1(2)(b)] and [8.1.2], and the fact that Applicant would be in the community whether or not the protection visa was granted, was the Tribunal "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"?

Question 5: If the answer to Question 4 is 'yes', is this because because of the evidence the Applicant adduced and the arguments he made, instead of an 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?

Question 6: If the answer to Question 4 is 'yes', does the required assessment of the risk to the Australian community turn not "upon a comparison between any differences in the situation arising from two different visas, but upon all of the factors bearing on risk"?

Question 7: Can it be said that, although courts are not to read the decisions of an administrative decision-maker with an eye keenly attuned to the perception of error, "this is no licence to shelter reasoning from scrutiny and interpretation"?

The FCA answered those questions as follows: