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Refusal of protection visa on the basis that an applicant 'is a danger to the Australian community'

It can be challenging to seek review of a decision refusing a protection visa on the basis that an applicant is a person whom the Minister considers on reasonable grounds 'is a danger to the Australian community': see s 36(1C)(b). Although the Refugee Law Guidelines: Procedural Instruction direct decision makers to consider aggravating and mitigating circumstances, and although this approach was taken in WKCG and Minister for Immigration and Citizenship [2009] AATA 512], and although those considerations were described as pertinent by Logan J in DOB18 v Minister for Home Affairs [[2019] FCAFC 63], SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 has clarified that the list of matters in WKCG remains useful provided it is not approached as a 'test' or a mechanical checklist but rather as a guide. The statutory concept of danger to the community is not concerned with any evaluation of what might be fair or reasonable to the visa applicant and is only concerned with the likelihood of harm and the seriousness of the harm if it was to eventuate. In essence, a decision maker has no ability to look at mitigating circumstances in the way that it is traditionally viewed (e.g. as lessening responsibility). Unlike s 501 matters, this is not a discretionary decision. As such, whether one is trying to convince the Administrative Appeals Tribunal that an applicant is not a danger to the Australian community or whether one is trying to convince the Federal Court that the Tribunal fell into jurisdictional error, these can be challenging matters to run.

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