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

This matter concerned an appeal by FYVY against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his protection visa. The core of the dispute revolved around whether FYVY, who held citizenship of the Republic of South Sudan and possessed an extensive criminal record, had been convicted of a "particularly serious crime" and, if so, whether he posed a danger to the Australian community. The Administrative Appeals Tribunal (AAT) was tasked with determining these issues.

The legal questions before the Tribunal were twofold: first, what constitutes a "particularly serious crime" for the purposes of section 36(1C) of the *Migration Act 1958* (Cth); and second, what is encompassed by the term "danger" to the community in the same section, and how that danger should be assessed. The Tribunal was required to consider various factors, including the seriousness and nature of the offending, any mitigating or aggravating circumstances, the period over which the offending occurred, the risk of re-offending, and whether the assessment of danger was contemporary.

The Tribunal reasoned that the exception in section 36(1C) of the Act mirrors Article 33(2) of the Refugees Convention, allowing for the exclusion of individuals who pose a danger to the community, irrespective of their potential eligibility for protection. It was held that the assessment of danger is a question of fact and degree, requiring consideration of all circumstances. Relevant factors include the nature and seriousness of crimes, the length of sentences, mitigating and aggravating circumstances, the extent and period of criminal history, and the risk of re-offending. The Tribunal clarified that a conviction for a particularly serious crime is a prerequisite, but the determination of danger is a separate, independent assessment, though the nature of the conviction is highly relevant. The Tribunal must look at the person's conduct in light of all circumstances up to the time of the decision, not just the specific convictions.

Ultimately, the Tribunal set aside the decision to refuse FYVY's protection visa and remitted the matter with a direction that FYVY did not meet the criterion stipulated in section 36(1C)(b) of the *Migration Act 1958*. This indicated that, despite his criminal history, the Tribunal was satisfied that he did not constitute a danger to the Australian community at that time.