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

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, THYM, sought to challenge the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision. The Administrative Appeals Tribunal, specifically Senior Member Tavoularis, was tasked with determining whether the applicant met the criteria for a protection visa under section 36(1C)(b) and engaged section 36(2C)(b) of the *Migration Act 1958* (Cth).

The core legal issues before the Tribunal were whether the applicant had been convicted by a final judgment of a particularly serious crime, and if so, whether the applicant constituted a danger to the Australian community. These questions were to be determined by applying a two-step approach, mirroring provisions of the Refugees Convention and now codified in the *Migration Act*.

The Tribunal found that the applicant had indeed been convicted by a final judgment of a particularly serious crime, citing two convictions for offences against the person: one in December 2007 for maliciously wounding a person with intent to inflict grievous bodily harm, resulting in a sentence of two years and 10 months imprisonment, and another in March 1992 for maliciously inflicting grievous bodily harm, for which the applicant received a 12-month custodial term. The Tribunal noted that these offences, at the time of sentencing, carried a maximum penalty of seven years imprisonment and were punishable by imprisonment for a term of not less than three years, satisfying the criteria for a "serious Australian offence" under section 5M of the Act. The Tribunal then considered whether the applicant posed a danger to the Australian community, applying the principle from *SZOQQ and Minister for Immigration and Border Protection* that section 36(1C) of the Act does not permit a balancing exercise between the consequences of refoulement and the danger posed by the applicant.

The Tribunal affirmed the decision under review, concluding that the applicant had been convicted of a particularly serious crime and was considered a danger to the Australian community, thus not meeting the criteria for a protection visa.