Beyond 'any risk is unacceptable': the likelihood limb under Direction No 110

This article examines the proper construction and application of Primary Consideration 1 (“protection of the Australian community”) under Direction No 110, made pursuant to section 499 of the Migration Act 1958 (Cth), with a focus on paragraph 8.1.2(2)(b)’s requirement to “have regard to” the likelihood of further criminal or other serious conduct. It argues that lawful decision-making under sections 501 and 501CA of the Migration Act 1958 (Cth) demands a cumulative, time-stamped evaluation of (a) the nature of potential harm and (b) the individualised likelihood of future conduct, informed by offence-free time in the community and rehabilitation achieved as at the time of decision. Reconciling Feutrill J in RNSQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1111 with Banks-Smith J in Jattan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 866 (‘Jattan’) and the preference of the Full Court of the Federal Court of Australia in RDYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 108 (‘RDYQ’), the article contends that decision-makers must substantively engage with the likelihood limb without any requirement to quantify risk or deploy rigid “low/moderate/high” scales. It identifies recurrent legal errors—allowing seriousness to operate as an automatic trump, reciting risk factors without evaluation, and overlooking the temporal lens—and proposes a targeted redraft of paragraph 8.1.2(2)(b) that would require an express (but non-quantified) evaluative finding, enumerate probative inputs, and anchor the assessment to the correct time. Model reasoning is offered to operationalise the reform and enhance transparency, consistency, and reviewability in Tribunal and ministerial practice. The overarching thesis is that compliance turns not on numbers but on substance: a reasoned, evidence-linked prediction of future conduct weighed against harm severity in line with the Direction’s sliding-tolerance premise.