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

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to affirm the refusal of a protection visa. The applicant, a citizen of the People's Republic of China, had previously had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, specifically a conviction for sexual offending in 2008. The AAT was required to consider whether the applicant posed an unacceptable risk of reoffending and was therefore a danger to the Australian community, a key consideration for the grant of a protection visa under section 36(1C) of the Act.

The central legal issue before the court was whether the Tribunal erred in finding that the applicant failed to satisfy the criteria for a protection visa, specifically concerning the risk of reoffending. This involved assessing the applicant's claims regarding religion as a protective factor against future offending, his engagement with treatment for past trauma, and the potential influence of his planned living arrangements with a convicted sex offender. The court had to determine if the Tribunal's assessment of these factors, in light of the applicant's history of sexual offending, was reasonable and supported by the evidence.

Deputy President Boyle P reasoned that the applicant's past offending, which involved a breach of trust in a therapeutic context and included sexual contact with patients, demonstrated a pattern of behaviour that posed a significant risk. Despite the applicant's claims of religious conviction and engagement with counselling, the Tribunal found these factors insufficient to mitigate the risk of reoffending. Crucially, the Tribunal noted that the applicant had previously reoffended after claiming religion as a protective factor and that his planned accommodation with a convicted sex offender further increased the risk. The court applied the principles of assessing risk, considering both mitigating and aggravating factors, and concluded that the Tribunal's decision was open to it on the evidence presented.