Section 36(1C)(b): “danger to the Australian community”

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Can it be said that, "while s 36(1C) must be construed as part of a domestic statute, that construction should be informed by reference to public international law principles, including Arts 31 and 32 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), and jurisprudence on Art 33(2)"?

Question 2: Can it be said that, "a statutory provision that a decision-maker have 'reasonable grounds' for a state of mind 'requires the existence of facts which are sufficient to induce that state of mind in a reasonable person'"?

Question 3: Do the words "a risk" in s 36(1B) and "a danger" in s 36(1C) of the Migration Act 1958 (Cth) have different meanings?

Question 4: Do the words “a danger” in s 36(1C) refer to something more than a mere risk that the person is a danger to Australia’s security or to the Australian community, namely "a threat of a substantial kind to Australia’s security or the Australian community based on objectively reasonable grounds (or suspicion)"?

Question 5: Do the words "a danger to the Australian community" in s 36(1C)(b) require that there be a causal link between the refugee’s conviction and the danger?

Question 6: Do the words "a danger to the Australian community" in s 36(1C)(b) exclude an evaluation of the present or future danger to the community having regard to past crime?

Question 7: Can it be said for the purpose of the words "a danger to the Australian community" in s 36(1C)(b) that "a disregard for the law, demonstrated by the conviction, would be sufficient to establish a connection between the conviction and the danger"?

Question 8: Can the expression “the Australian community” used in s 36(1C)(b) refer to a danger to an individual within that community?

Question 9: Will it in any particular case be a question of fact or degree whether or not a person can satisfy the criterion in s 36(1C)?

Question 10: Is the word 'danger' in s 36(1C)(b) a function of probability and consequence?

Question 11: Does a “danger” exist if there is a sufficient risk, possibility or probability of sufficient harm?

Question 12: Can the "danger" in s 36(1C)(b) be "assessed in the usual ways (including by reference to concepts such as recidivism, remorse and rehabilitation), that the convicted person might repeat his or her conduct"?

Question 13: Does s 36 operate beneficially, in that it serves to identify the circumstances in which Australia will afford visa protection to those in need of it?

Question 14: If the answer to Question 13 is 'yes', does it necessarily follow that, insofar as s 36 contemplates disqualifications such as those for which s 36(1C) of the Act provides, courts "might ordinarily strive to construe them narrowly and, in so doing, extend the benefit of the section as widely as possible"?

Question 15: Does the "prospect that the appellant might (or perhaps will) be subjected to prolonged or indefinite immigration detention is not a circumstance that warrants acceptance of his preferred construction of s 36(1C)(b) of the Act", namely that the "danger" it refers to is not danger to an individual in the Australian community?

The FCAFC answered those questions as follows: