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

This matter concerned an appeal by WKBF against a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a protection visa under s 65 of the *Migration Act 1958* (Cth). The refusal was based on the applicant having been convicted of a particularly serious crime, and the Minister being satisfied that the applicant would be a danger to the Australian community. The applicant had been diagnosed with paranoid schizophrenia, and it was conceded that without treatment and support, the applicant would pose a danger. Psychiatric evidence indicated that the applicant would likely be subject to a compulsory treatment order for a significant period, and would not be released into the community until the risk was assessed as acceptably low.

The court was required to determine whether the applicant was a danger to the Australian community, notwithstanding the psychiatric evidence suggesting that release into the community was unlikely until the risk was managed. This involved considering the definition of a "serious Australian offence" and whether an offence involving a threat of violence constituted an offence that "involves violence against a person" for the purposes of s 5(1) of the *Migration Act*. The court also had to consider the concept of "danger" in the phrase "danger to the Australian community" and whether s 36(1C)(b) of the *Migration Act* required a causal connection between the particularly serious crime and the danger posed to the community.

The court reasoned that the phrase "violence against a person" in the definition of a serious Australian offence requires the physical application of force to a victim's body, and therefore an offence involving only a threat of violence would not satisfy this limb. Furthermore, the court applied the principles established in *Briginshaw v Briginshaw* (1938) 60 CLR 336, requiring a high degree of satisfaction before making an adverse finding that could have significant consequences for the applicant. Considering the psychiatric evidence that the applicant would likely remain under compulsory treatment and therefore not pose a risk to the community, the court found that the applicant was not a danger to the Australian community.

The court set aside the Minister's decision and remitted the matter for reconsideration.