Federal Court (Full Court). Is 'danger' as used in s 36(1C)(b) of the Migration Act 1958 (Cth): such that "the harm that will eventuate if the danger becomes a reality is non-trivial" and "of a physical or psychological kind"; one "that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates"? Is the 'Australian community' as used in s 36(1C)(b) conceived of as the community as a whole and/or any person or persons who are part of it?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: Is the phrase s 36(1C)(b) of the Migration Act 1958 (Cth) 'a danger to the Australian community' a composite one in that 'the Australian community' will inform what is capable of being a 'danger' and conceivably vice versa?
Question 2: Is 'danger' as used in s 36(1C)(b): "a word of ordinary English which is to be applied to all the facts and circumstances of the case and which is not susceptible of more precise definition"; such that "the harm that will eventuate if the danger becomes a reality is non-trivial" and "of a physical or psychological kind"; such that "the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions"; one "that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates"?
Question 3: Is the 'Australian community' as used in s 36(1C)(b) conceived of as the community as a whole and/or any person or persons who are part of it?
Question 4: In assessing s 36(1C)(b), may the decision-maker "consider the particularly serious crime of which the visa applicant has been convicted and the risk that he or she will offend in that way in the future" or the "the risk of repetition of other past conduct"?
Question 5: Does the list of factors which Tamberlin DP set out in WKCG remain useful, "provided it is approached, not as a 'test' or a mechanical checklist, but as a guide to assessing the fundamental question of fact"?
Question 6: Can it be said that, even though the Tribunal commenced its examination of the appellant's circumstances by asking whether there was a 'real or significant risk or possibility of harm', which was a formulation that was not specifically endorsed by either of the judgments in DMQ20, it was not necessarily inconsistent with either of them?
The FCAFC answered those questions as follows: