Catchwords:

APPEAL – where the Delegate refused to grant a protection visa to DVRL under s 501(1) of the Migration Act 1958 (Cth) – where the Tribunal affirmed the Delegate’s decision – where the primary judge ordered that the Tribunal’s decision be set aside and that the matter be remitted to the Tribunal to be determined according to law – where the Minister contends that the primary judge erred in finding that the Tribunal was required to, but did not, take the “final step in its assessment” of the protection of the Australian community by evaluating the risk if a protection visa was granted as compared to the prevailing risk arising from DVRL being in the community on a bridging visa – where the Minister contends that the primary judge erred in finding that the Tribunal needed as a matter of logical and rational reasoning to, but did not, evaluate the risk if the protection visa was granted as compared to the prevailing risk arising from DVRL being in the community on a bridging visa

DIRECTION 110 – where the “risk” to the Australian community referred to in paras 8.1(2) and 8.1.2(2) is not limited to the scenario in which the non-citizen is granted a permanent visa – where the decision-maker is rather required to have regard to any “risk that may be posed by the non-citizen to the Australian community”, regardless of whether that flows from a “positive” or a “negative” outcome from the perspective of the non-citizen – where that is the risk that must be “assess[ed]” (under para 8.1.2(2)) and considered (under para 8.1(2))

APPLICATION – where it was common ground between the parties before the Tribunal that refusal of a protection visa does not, in DVRL’s case, lead to removal or segregation from the Australian community – where DVRL contended that a protection visa afforded certain benefits which would reduce his risk of re-offending – where the Minister accepted before the Tribunal that at least some benefits associated with the grant of a protection visa would not be available on a bridging visa – where the Tribunal was required to assess whether either of the two decisional outcomes gave rise to any real difference in terms of “risk” – where the Tribunal accepted that the two decisional outcomes were associated with meaningful differences in the level of supports available to DVRL – where the Tribunal accepted that the availability of such supports was directly relevant to DVRL’s risk of re-offending – where the Tribunal proceeded on the footing that it was not required to undertake any comparative assessment of risk