BDSG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse the applicant's protection visa application. The applicant, who arrived in Australia as an unauthorised maritime arrival in 2009, had subsequently been convicted of serious criminal offences, including sexual assault and attempted aggravated robbery. The delegate's decision was based on the assessment that, despite owing non-refoulement obligations, the applicant was a danger to the Australian community due to having been convicted of a particularly serious crime.

The Administrative Appeals Tribunal was required to determine whether the applicant was a danger to the Australian community, notwithstanding that non-refoulement obligations were owed to him. This involved considering various factors, including the seriousness and nature of the crimes committed, the length of the sentences imposed, any mitigating or aggravating circumstances, the extent of the criminal history, the risk of re-offending, the applicant's character, and the possibility or probability of any threat posed.

The Tribunal found that the crimes committed by the applicant were objectively very serious, involving sexual assaults where the victim's acquiescence was secured by the use of a weapon, and that the lengthy sentences imposed reflected this seriousness and the aggravating circumstances. While acknowledging the applicant's efforts towards rehabilitation, including overcoming drug addiction in prison, the Tribunal considered that significant risk factors remained. These included past struggles with drug and gambling addiction, a demonstrated susceptibility to negative influences, and continued contact with his brother, who had played a leading role in some of the offences. The Tribunal concluded that these factors indicated a substantial risk of recidivism, leading to the affirmation of the delegate's decision.