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

This matter concerned an application for a protection visa by the Applicant, a citizen of [redacted], who arrived in Australia in 2015. The Applicant had previously applied for a protection visa in 2016, which was found to be invalid after he departed Australia. He subsequently lodged a second protection visa application, asserting he had fled his home country due to involvement with a criminal gang and subsequent torture for attempting to leave. The Migration and Refugee Division (MRD) Tribunal found the Applicant met complementary protection criteria, indicating a real risk of significant harm if returned, but noted it lacked jurisdiction to consider potential exclusion under section 36(2C) of the *Migration Act 1958* (Cth). The matter was remitted for reconsideration, with the Department directed to consider the section 36(2C) issues. The Tribunal, constituted by M Evans-Bonner SM, was required to determine whether there were serious reasons for considering the Applicant had committed a serious non-political crime before entering Australia.

The central legal issue before the Tribunal was whether the Applicant was excluded from a protection visa under section 36(2C)(a)(ii) of the *Migration Act*, which mirrors Article 1F(b) of the Refugees Convention. This provision excludes individuals for whom there are serious reasons for considering they have committed a serious non-political crime outside Australia prior to their admission. The Tribunal had to assess the Applicant's admitted involvement in violent criminal activities as a member of a criminal gang, including an incident where he beat a victim with his fists while associates used weapons, resulting in the victim being hospitalised in a coma. The Tribunal also considered the Applicant's admissions of engaging in other violent criminal activities, such as debt collection involving harassment and intimidation, and the permanent disabling of some individuals.

The Tribunal applied the principles established in *Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs* [2002] FCAFC 326, which clarified that Article 1F(b) does not require a balancing test between the seriousness of the crime and the risk of persecution. Instead, the commission of a serious non-political crime, of itself, is sufficient to exclude a person from the protection of the Convention and render them ineligible for protection obligations under the *Migration Act*. The Tribunal found the Applicant's admitted actions, including the severe beating of an individual and participation in other violent criminal activities, constituted serious non-political crimes. The Tribunal was satisfied that there were serious reasons for considering the Applicant had committed such crimes before entering Australia, rendering him ineligible for a protection visa.

Consequently, the Tribunal affirmed the Reviewable Decision, finding the Applicant ineligible for a protection visa due to the commission of a serious non-political crime prior to his entry into Australia.