Federal Court. A criterion under s 36(1C)(b) 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". Does the word "danger" carry the meaning of a present and serious risk of exceptional criminality? Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community? In assessing danger, must there be a link between the conviction and that danger? Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?
The questions to the Federal Court (FCA) were as follows:
Question 1: Does the word "danger" in s 36(1C)(b) of the Migration Act 1958 (Cth) imports notions of “exceptional criminality” or “most serious criminality”?
Question 2: Can the nature of the “particularly serious crime” be sufficient reason, in some cases, for a decision-maker to consider on reasonable grounds that an applicant is a danger to the Australian community?
Question 3: In assessing whether an applicant is a danger to the Australian community, must there be a link between the conviction and that danger?
Question 4: Does the word "danger" in s 36(1C)(b) of the Migration Act 1958 (Cth) import notions of “present and serious risk”?
Question 5: Are the two parts of the test in s 36(1C)(b) related in any proportionate or balancing way?
The FCA answered those questions as follows: