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

The Administrative Appeals Tribunal considered the case of Ozberk and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the application of Direction No. 79 to a Turkish citizen married to an Australian citizen, who had a history of adolescent offending, specifically attempted murder.

The Tribunal was required to determine whether the risk of the applicant reoffending could be considered non-existent, and consequently, whether a visa should be granted. This involved assessing the competing balance between the extent of any risk of reoffending and the harm that would be caused if such reoffending occurred, as mandated by Direction No. 79.

The Tribunal reasoned that while past conduct is a starting point for predicting future behaviour, it is dangerous to assume a likelihood of repeat conduct in all circumstances. The crucial inquiry is whether there is an unacceptable risk of future conduct repeating problematic past conduct. The Tribunal noted that a lengthy interval between the offending conduct and the assessment, particularly if it has been free of any problematic behaviour, can indicate a low or even zero risk of reoffending. Furthermore, if the offending conduct arose in specific circumstances unlikely to recur, this, combined with a significant time lapse, further diminishes the danger of assuming future problematic conduct based on past actions. The Tribunal applied principles from previous cases, emphasizing that the risk must be real, though it can be low or minimal, and that the tolerance for risk decreases with the seriousness of the offence. The Tribunal concluded that the risk of reoffending could be taken as non-existent in this case.