BFMV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to refuse a protection visa, brought by BFMV against the Minister for Immigration, Citizenship and Multicultural Affairs. The Deputy President of the Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(1C)(b) of the *Migration Act 1958*.

The central legal issues before the Tribunal were whether the applicant had been convicted by final judgment of a particularly serious crime, and separately, whether the applicant posed a danger to the Australian community. The Tribunal was guided by the Refugee Law Guidelines, which clarify that these are two distinct considerations.

The Tribunal reasoned that a conviction for a particularly serious crime, by itself, is not sufficient to establish that an applicant is a danger to the community. Similarly, a past finding of danger is insufficient. Instead, the assessment requires a determination of whether the applicant is presently and will continue to be a danger to the Australian community. The Tribunal noted that there is no automatic category of offending that renders a person a danger, and the assessment is one of fact and degree, determined on the circumstances of the particular case. Factors relevant to assessing danger include the seriousness and nature of the crimes, the sentence imposed, mitigating and aggravating circumstances, the extent and nature of the criminal history, the period over which offences occurred, the risk of re-offending, and prospects of rehabilitation. The Tribunal emphasised that the duty is to assess the acceptable level of risk and whether the applicant presents an unacceptable level of risk.