Federal Court (Full Court). Section 36(1C)(b) of the Migration Act 1958 (Cth) provided: "A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds … having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”
A delegate of the first respondent (Minister) refused to grant the appellant a protection visa. The second respondent (Administrative Appeals Tribunal) affirmed the delegate’s decision, finding that s 36(1C)(b) of the Migration Act 1958(Cth) was not satisfied, as the appellant posed a “low to moderate risk of reoffending”. That provision read as follows: “A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds … having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”
The appellant unsuccessfully applied to the Federal Court for judicial review of the Tribunal’s decision. On appeal to the Full Court, the appellant argued, inter alia, that primary judge erred in not holding that the Tribunal misinterpreted s 36(1C)(b). The error was said to involve the Tribunal equating a “low to moderate risk of reoffending” to a “high risk of reoffending” as required by law according to the appellant.
The Full Court answered that question as follows: