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

This matter concerned an application for review of a delegate's decision to refuse to grant the Applicant, a Sudanese citizen, a permanent protection visa. The delegate had found that the Applicant did not meet the criterion in section 36(1C)(b) of the *Migration Act 1958* (Cth) because he had been convicted of a particularly serious crime and was considered a danger to the Australian community. The Administrative Appeals Tribunal was required to determine whether the Applicant posed a danger to the Australian community.

The Tribunal considered the legal issue of whether the Applicant was a danger to the Australian community, a determination that does not involve the exercise of discretion but rather requires affirmation of the delegate's decision if the Applicant is found to be a danger. The Tribunal noted that it was not necessary to establish a probability of harm, nor could the assessment of danger be balanced against potential harm to the Applicant if returned to their country of origin. The Tribunal agreed that the Applicant's conviction for "assault occasioning bodily harm" constituted a "particularly serious crime" as it was a "serious Australian offence" under the Act.

In its reasoning, the Tribunal referred to established case law, including *MVLW and Minister for Immigration and Border Protection*, *SZOQQ v Minister for Immigration and Citizenship*, and *WKGC v Minister for Immigration and Citizenship*, which provide guidance on assessing whether an applicant poses a danger to the Australian community. The Tribunal affirmed that this assessment is a question of fact and degree, requiring consideration of all circumstances. Relevant factors include the seriousness and nature of the crimes committed, the length of sentences imposed, mitigating or aggravating circumstances, the extent and nature of the criminal history, the period over which offences occurred, the risk of re-offending, and prospects of rehabilitation. The Tribunal emphasised that the assessment goes to the person's future conduct and the potential threat posed to the community, and that the duty is to apprehend the acceptable level of risk and assess whether the applicant presents an unacceptable level of risk. The Tribunal affirmed the delegate's decision.