HSCK v Minister for Home Affairs

The applicant, a citizen of South Sudan, sought judicial review of a decision by the Minister for Home Affairs to refuse him a protection visa. The applicant accepted that he had been convicted of a particularly serious crime, leaving the sole issue for determination whether he posed a danger to the Australian community under section 36(1C)(b) of the Migration Act 1958 (Cth). The applicant's visa had previously been cancelled on character grounds following a significant criminal history, and he had subsequently applied for a protection visa.

The court was required to determine if the applicant remained a danger to the Australian community, notwithstanding his submissions regarding rehabilitation, remorse, and a supportive family network. The court also considered the application of Direction 75, which relates to circumstances where a person may be owed protection obligations but is also considered a danger to the community.

The court found that the applicant had been convicted of a particularly serious crime by final judgment and that he continued to be a danger to the Australian community. In reaching this conclusion, the court noted that the delegate's decision had specifically addressed the applicant's refugee claims under s 36(2)(a) and complimentary protection claims under s 36(2)(aa) of the Act, and that these findings were not under review. Consequently, Direction 75 was deemed not to apply. The court applied the principles that a person convicted of a particularly serious crime may be ineligible for a protection visa if they are also found to be a danger to the community.

Accordingly, the court affirmed the delegate's decision to refuse the applicant a Protection visa under section 65(1)(b) of the Migration Act 1958 (Cth).