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

This matter concerned an application for review by CYTW, an applicant for a Protection visa, of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse that application. The applicant, a citizen of South Sudan, had previously held a Global Special Humanitarian visa which was mandatorily cancelled in 2017 due to a conviction and imprisonment for more than 12 months, meaning he did not pass the character test. The application for review was heard by Ms C Burnett-Wake, Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant met the criterion for a Protection visa under section 36(1C)(b) of the *Migration Act 1958* (Cth), and whether the applicant engaged section 36(2C)(b) of the Act. These provisions relate to whether an applicant, despite meeting the definition of a refugee, has been convicted of a particularly serious crime and constitutes a danger to the Australian community, or is otherwise a danger to the Australian community.

The Tribunal considered the legislative purpose behind section 36(1C), which is to codify Article 33(2) of the Refugees Convention. This article provides exceptions to the prohibition against refoulement where a refugee is considered a danger to the security of the country or has been convicted of a particularly serious crime and constitutes a danger to the community. The Tribunal noted that if a person meets the definition of a refugee but fails to meet the criterion under section 36(1C), they are ineligible for a Protection visa, which is consistent with the ineligibility criteria under paragraph 36(2C)(b) concerning complementary protection. The decision under review was affirmed.