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

This matter concerned an application for review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant sought to establish that they met the criterion for a protection visa under section 36(1C)(b) of the *Migration Act 1958* (Cth), which requires that the applicant has not been convicted by a final judgment of a particularly serious crime and is not a danger to the Australian community. The dispute centred on whether the applicant's offending conduct, specifically the breaking of a window, constituted "serious damage to property" for the purposes of the definition of a "particularly serious crime".

The court was required to determine whether the applicant's conviction for damaging property met the threshold of a "particularly serious crime" as defined by the Act. This involved assessing whether the damage caused to the window constituted "serious damage to property" under the first limb of the definition, and whether the applicant posed a danger to the Australian community. The court also considered the respondent's contention that the totality of the applicant's offending history, or the indicia of the offending sequence, could be "gathered up" to satisfy the "serious damage to property" criterion.

The court found that the respondent's formulation for determining "serious damage to property" was not satisfied. Applying the legal principle that mere damage to property is insufficient and that there must be "serious" damage, the court reasoned that the breakage of a single window, described by the sentencing Magistrate as "not substantial" damage, did not constitute serious damage to property. The court distinguished between the damage to the window itself and the property as an entire house, concluding that in neither scenario did the damage rise beyond "mere damage to property". The court noted that while the offence was punishable by imprisonment for a term that qualified it as a "serious Australian offence" under the second limb of the definition, the delegate's decision failed to adequately analyse or establish how the offending satisfied the first limb concerning the seriousness of the damage.

The court set aside the decision under review.