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

This matter concerned an appeal by FSKY, a Cambodian citizen, against the refusal of his Protection (Subclass 866) visa. The respondent's delegate had accepted that FSKY met the criteria for Australia's protection obligations. However, the delegate also found that FSKY had been convicted by final judgment of a particularly serious crime and that he posed a danger to the Australian community, leading to the refusal of his visa. The Administrative Appeals Tribunal (AAT) was required to determine whether FSKY had been convicted of a particularly serious crime and, if so, whether he constituted a danger to the community.

The Tribunal considered the meaning of a "particularly serious crime" and the assessment of whether an individual poses a danger to the community. It was established that the determination of danger to the community is a question of fact and degree, requiring consideration of all circumstances, including the seriousness and nature of the offending, the length of sentences, mitigating and aggravating factors, the extent and nature of the criminal history, the period over which offending occurred, and the risk of re-offending. The Tribunal rejected the argument that a causal connection must exist between the conviction and the danger posed to the community, holding that these are separate considerations. The Tribunal also clarified that it was not engaged in a balancing act of potential consequences for FSKY if repatriated, as the purpose of the exception in section 36(1C) of the Migration Act 1958 (Cth) is to incorporate the exception provided in Article 33(2) of the Refugee Convention, which allows for the exclusion of individuals who pose a danger to the community.

The Tribunal found that FSKY had been convicted of a particularly serious crime, referencing his 2002 conviction for armed robbery and his 2015 conviction for recklessly causing serious injury. The Tribunal concluded that FSKY posed a danger to the community, noting his repeated opportunities for rehabilitation had not prevented further offending. The Tribunal was particularly concerned that FSKY's serious offending in 2015 occurred while he was not under the influence of heroin, suggesting his addiction was not the sole driver of his behaviour. Furthermore, the Tribunal found that the proposed protective factors, such as living with family and potential employment, lacked robustness and had not proven effective in preventing past offending. Consequently, the Tribunal affirmed the decision to refuse the visa.