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

This case concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant the Applicant a Protection (Class XA) (Subclass 866) visa. The delegate had refused the visa on the grounds that the Applicant had been convicted of a "particularly serious crime" and was considered to be a danger to the Australian community, thus failing to meet the criteria under ss 36(1C) and 36(2C)(b) of the *Migration Act 1958* (Cth). The Applicant sought review of this decision in the Tribunal.

The primary legal issues before the Tribunal were whether the Applicant had been convicted by a "final judgment of a particularly serious crime" and whether the Applicant posed a danger to the Australian community. These questions were to be determined by considering the seriousness and nature of the Applicant's criminal history, including offences of assault occasioning actual bodily harm against his mother and former wife, the length of sentences imposed, any mitigating or aggravating circumstances, the Applicant's mental health issues, the risk of reoffending, and his prospects of rehabilitation.

The Tribunal, in its reasoning, adopted the propositions that the concept of "danger" under s 36(1C)(b) of the *Migration Act* is not capable of precise definition and falls to be considered in light of the whole of the relevant facts and circumstances. It was clear, however, that the circumstances of the Applicant's offending fell well within the conceptual limits of "danger." The Tribunal found that the Applicant had been convicted of two "assault occasioning actual bodily harm (DV)" offences, one of which involved the use of a leather belt with a metal buckle to strike his former wife, and also involved striking her brother-in-law. The Applicant had pleaded not guilty to this offence but was ultimately found guilty, and did not dispute the police version of events at the Tribunal hearing, admitting he had made a mistake. The Tribunal concluded that there existed a present risk which was real, significant, and serious that the Applicant would cause physical or extreme emotional harm, thereby establishing him as a "danger" for the purposes of the Act.

The Tribunal affirmed the delegate's decision to refuse to grant the Applicant a protection visa.