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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, and Multicultural Affairs to refuse to grant a protection visa to KYMM. The core of the dispute revolved around whether KYMM had been convicted of a "particularly serious crime" and whether they posed a danger to the Australian community. The case was heard by Dr Stewart Fenwick, Senior Member.

The legal issues before the Tribunal were whether KYMM had been convicted of a particularly serious crime, and if so, what weight should be given to this finding, along with other offending behaviour, in assessing whether KYMM presented a danger to the Australian community. The Tribunal was required to consider the nature and seriousness of KYMM's offending, including instances where convictions were recorded and where findings of guilt may have occurred without a formal conviction, particularly in light of KYMM's youth at the time of some offences and their diagnosed mental health condition.

The Tribunal considered expert evidence regarding KYMM's diagnosis of schizophrenia, its likely origins in childhood trauma and difficult circumstances, and its impact on their behaviour. While acknowledging that some of KYMM's offending, such as assault on police and robbery, qualified as serious Australian offences, the Tribunal noted that other instances of unlawful assault, charged under summary offences legislation, might not meet this threshold. The Tribunal also considered the application of principles from cases like *Thornton*, which dealt with the effect of provisions preventing findings of guilt in childhood from being treated as convictions, and the Respondent's submission that all offending conduct should be considered regardless of conviction status. Ultimately, the Tribunal found that KYMM had been convicted of a particularly serious crime.

The Tribunal set aside the original decision and remitted the matter for reconsideration. This outcome was based on the finding that KYMM had been convicted of a particularly serious crime, but the assessment of whether KYMM posed a danger to the Australian community required further consideration of the weight to be given to this conviction, in conjunction with the expert evidence on their mental health and the circumstances of their offending.