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

This matter concerned an application for review of a decision to refuse to grant a protection visa. The parties were the Applicant, a citizen of Zimbabwe, and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute arose from the Minister's delegate's decision on 16 June 2022 to refuse the Applicant a protection visa, finding that the Applicant failed to satisfy the criterion in s 36(1C) of the *Migration Act 1958* (Cth). The application was heard by Deputy President Boyle of the Administrative Appeals Tribunal.

The Tribunal was required to determine two key legal issues: first, whether the Applicant had been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act; and second, whether the Applicant posed a danger to the Australian community. These issues were central to assessing whether the Applicant met the criteria for a protection visa under s 36(1C) of the Act, which codifies Article 33(2) of the Refugees Convention.

Deputy President Boyle reasoned that the Applicant had indeed been convicted by final judgment of a particularly serious crime, citing convictions for offences such as taking/detaining a person with intent to obtain advantage and aggravated break and enter with a weapon, both carrying significant maximum penalties. Regarding the danger posed to the community, the Tribunal applied the principles established in *WKCG* and *DOB18*, which require an assessment of whether the applicant is, at present and for the indefinite future, a danger to the Australian community. This assessment involves considering the seriousness and nature of past crimes, the extent of the criminal history, the risk of re-offending, and prospects of rehabilitation. The Tribunal found that the Applicant's extensive criminal history, including multiple violent and dishonesty offences, coupled with a poor record in custody and a lack of protective factors against reoffending, indicated that the Applicant would pose a real or significant risk or possibility of harm if released into the community.

Consequently, the Tribunal found that the Applicant did not satisfy the criterion in s 36(1C)(b) of the Act. As a result, the Applicant was taken not to satisfy the criterion under s 36(2)(aa) by operation of s 36(2C)(b)(ii) of the Act. The decision of the delegate of the Minister to refuse to grant the Applicant a protection visa was affirmed.