Interpol: meaning of “would” in s 501(6)(h)

Federal Court. Interpol Red Notice (IRN) was issued in relation to Applicant, stating he had been charged. A person fails the character test by reason of s 501(6)(h) if "an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force". On the basis of the IRN, Minister personally refused to grant visa under s 501(1), stating: "It is therefore not without some substance that [the applicant] would be under suspicion of these charges". Does use of the word “would” in s 501(6)(h) require more than mere suspicion? Could it reasonably be inferred from IRN that Applicant would present a risk to the Australian community?

The questions to the Federal Court (FCA) were as follows:

Question 1: Does the use of the word “would” in s 501(6)(h) indicate that more than a mere suspicion is required for an applicant to fail the character test by reason of that provision?

Question 2: From what was stated in the IRN, could it reasonably be inferred that the Applicant would present a risk to the Australian community, or a segment of that community?

The FCA answered those questions as follows:

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