The Full Court held that Direction 110, properly construed, requires decision-makers exercising power under s 501(1) of the Migration Act to assess the risk to the Australian community under each realistically available decisional outcome — not only the scenario where a visa is granted. Where a non-citizen will remain in the Australian community regardless of the visa decision (as with the NZYQ cohort), the Tribunal must undertake a comparative assessment of risk under both outcomes, including by reference to differences in supports, services and conditions available under each visa type. The Tribunal's express refusal to undertake that comparative analysis, while simultaneously accepting that meaningful differences in support levels existed between a protection visa and a bridging visa and that those differences were relevant to recidivism risk, constituted a failure to follow the process of reasoning required by Direction 110 and thus jurisdictional error. The Court left open whether the obligation to assess risk under both outcomes arises even absent a positive case from the applicant, though indicated it likely does.
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