Background
MFKF, a Sierra Leone citizen, held Australian visas before his Resident Return visa was cancelled in 2018 following sexual offences, including offences involving children. He later applied for a Protection (Class XA) (Subclass 866) visa. The Administrative Review Tribunal had found he met the statutory protection criterion, but a ministerial delegate refused the visa in January 2025 under s 501(1) of the Migration Act 1958 (Cth) on character grounds.
As a person affected by NZYQ, MFKF could not then be removed to his home country and remained in Australia on a Bridging R (Removal Pending) visa. After an earlier Tribunal decision was set aside, the Tribunal again affirmed the refusal in February 2026. It found his risk of reoffending was low if treatment continued, but held that any risk of repeated sexual offending against children was unacceptable and gave strong weight to protection of the Australian community.
The Court’s Holding
Halley J allowed judicial review, quashed the Tribunal’s decision, and remitted the matter to the Tribunal for determination according to law. The Tribunal failed to comply with the mandatory reasoning process required by Direction 110, as explained by the Full Court in Minister for Immigration and Citizenship v DVRL.
For an applicant in the NZYQ cohort who will remain in the Australian community regardless of whether a protection visa is granted or refused, the Tribunal had to assess and compare the risk to the community under each outcome: remaining on a Bridging R visa and being granted a Protection Visa. The Tribunal did not make that comparison. Its finding that the protection-of-the-community consideration strongly favoured refusal was therefore affected by material legal error. The Court did not need to decide the separate irrationality ground.
Key Takeaways
- Direction 110 requires a comparative, forward-looking risk assessment for NZYQ-cohort applicants who will remain in Australia under either decisional outcome.
- A low assessed risk of reoffending cannot, without comparing the alternative visa outcomes, support giving decisive weight to community protection in favour of refusal.
- Courts cannot reconstruct a missing reasoning process by inferring that Bridging R visa conditions would reduce risk.
Why It Matters
The decision applies DVRL to require the Tribunal to confront the practical consequences of refusal where removal is not presently available. A refusal does not itself protect the community if the person will remain in it; the Tribunal must assess whether the visa status and conditions produce a meaningful difference in risk.
For migration practitioners, the case confirms that this comparison is a mandatory consideration under Direction 110, even where the applicant did not squarely advance a case that a permanent visa would reduce reoffending risk.