MHCZ and Minister for Home Affairs (Migration)

The case of MHCZ and the Minister for Home Affairs concerned an application for a permanent protection visa (XA-866) that was refused. The applicant had been convicted of a particularly serious crime. The central dispute revolved around whether the applicant posed a danger to the Australian community if released, particularly in light of their mental health issues and the potential for adequate treatment. The matter was heard by Deputy B W Rayment Oam Qc P.

The court was required to determine whether the applicant was a person who, on reasonable grounds, posed a danger to the Australian community. This assessment was not a discretionary power, unlike that under section 501 of the Act. The court also had to consider the scope of the phrase "having been convicted" in section 36(1C)(b), specifically whether it limited the inquiry to dangers directly associated with the previous offending behaviour.

The court reasoned that the assessment of dangerousness was not confined to the nature of the past offending but required a holistic review of all circumstances up to the time of the tribunal's decision, including events that occurred after the convictions. The court applied the principle from *WKCG* that while the conviction is highly relevant, it is not conclusive. The court noted that a substantial period had elapsed since the offending, and events transpiring since then were pertinent to the assessment of dangerousness, which is to be made at large and at the time of the hearing. The court also clarified that it was not required to balance the danger to the community against the harm to the applicant if returned to Afghanistan.

The decision of the delegate was set aside.