RWDX and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by the Minister for Immigration and Border Protection to refuse the Applicant a protection visa. The refusal was based on the Applicant having been convicted of a particularly serious crime and being considered a danger to the Australian community, thus failing to meet the criterion under s 36(1C)(b) of the Migration Act 1958 (Cth). The Applicant, born in 1990, arrived in Australia in 2003 and possessed an extensive criminal history dating back to 2005, involving approximately 30 offences across three states. A significant conviction in March 2012 was for aggravated unlawfully causing harm with intent to cause harm, for which the Applicant received a sentence of two years and 50 weeks imprisonment.

The primary legal issue before the Tribunal was whether the Applicant remained a danger to the Australian community, given his conviction for a particularly serious crime. The Tribunal was required to consider the nature and seriousness of the crimes committed, the length of sentences imposed, any mitigating or aggravating factors, the totality of the criminal history, the period over which the crimes occurred, the risk of re-offending, and the prospects of rehabilitation. The Tribunal noted that the assessment of danger did not involve a discretionary power and that it was not necessary to establish a probability of harm.

The Tribunal reasoned that the Applicant conceded his conviction for aggravated unlawfully causing harm constituted a particularly serious crime. The central question therefore became whether he posed a danger to the community. Applying the principles derived from cases such as *WKCG* and *BHYK*, the Tribunal considered the Applicant's entire criminal history, including his conviction for riot in 2017 while in immigration detention. The Tribunal found that the assessment of future conduct and the possibility of a threat to the community required a careful evaluation of past conduct and the risk of recidivism. The Tribunal affirmed the delegate's decision to refuse the visa, finding that the Applicant was a danger to the Australian community.