Background
LKQD, a South Sudanese national who arrived in Australia as a refugee in 2004, had his Refugee visa automatically cancelled in 2015 because of his criminal record. After earlier proceedings concerning whether he posed a danger to the Australian community, a ministerial delegate refused his later application for a Protection visa under s 501(1) of the Migration Act 1958 (Cth). The Administrative Review Tribunal affirmed that refusal in January 2025.
LKQD could not presently be removed to South Sudan and no arrangement existed for removal to a third country. He therefore remained in the Australian community on a Bridging (Removal Pending) visa. Before the Tribunal, he argued that permanent residence would give him access to National Disability Insurance Scheme services, stable accommodation, and other supports that could reduce his risk of reoffending. The Tribunal nevertheless found a high risk of reoffending irrespective of his visa status and the availability of NDIS support, and treated protection of the community as weighing very heavily in favor of refusal.
LKQD sought judicial review, principally arguing that Direction No 110 required the Tribunal to compare the risks arising under the two realistically available outcomes. He contended that a risk common to both outcomes could not rationally favor refusing the Protection visa. He also challenged as legally unreasonable the Tribunal’s treatment of his future accommodation and support arrangements.
The Court’s Holding
Justice Lee dismissed the application. The Court held that the Tribunal had undertaken the comparative assessment required by Direction No 110. It had examined whether permanent residence and access to NDIS and other supports would reduce LKQD’s risk, considered the circumstances associated with his continued residence on a bridging visa, and expressly rejected the proposition that permanent residence would better protect the community.
The Tribunal’s description of the risk as “high” regardless of visa status did not necessarily mean that it found the two outcomes identical in every relevant respect. Read as a whole, its reasons showed an evaluative comparison, including consideration of available treatment, medication compliance, Community Treatment Orders, accommodation, and drug and alcohol use. The Court also held that the community-protection consideration remained composite: even if the comparative future risk were neutral, the Tribunal could still consider the nature and seriousness of LKQD’s past conduct.
The Court rejected the legal-unreasonableness grounds as well. The Tribunal rationally connected its findings to the weight it assigned to community protection, and it was entitled to regard predictions of homelessness or inadequate support after the cessation of existing assistance as speculative because the evidence did not establish those future events. LKQD was ordered to pay the Minister’s costs.
Key Takeaways
- When a non-citizen will remain in Australia under either available visa outcome, Direction No 110 requires a comparison of the community risk associated with each realistically available outcome.
- The comparison is evaluative and does not require numerical risk estimates, prescribed wording, or an express finding framed as a “real difference.”
- A high-risk classification under both outcomes does not by itself establish identical risks, and the seriousness of past conduct remains independently relevant to the composite community-protection consideration.
- A tribunal may reject asserted future accommodation or support outcomes as speculative when the evidence does not establish that they are likely to occur.
Why It Matters
The decision explains how migration decision-makers should apply the comparative-risk analysis required when refusing a visa will not result in the applicant leaving Australia. It distinguishes cases in which a tribunal merely notices the practical differences between visa outcomes from cases in which it actually evaluates how those differences bear on rehabilitation, reoffending, and community protection.
The judgment also clarifies that comparative future risk is only one part of the community-protection assessment under Direction No 110. Once the required comparison has been performed, a tribunal may still give substantial weight to serious past offending and the potential harm from further conduct.