Federal Court of Australia

SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs.

3.    The entry and operation of order 2 be stayed until 14 July 2023.

4.    On or before 13 July 2023, the appellant file and serve any evidence and submissions, limited to 2 pages, as to why he contends that order 2 should be varied.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

1    I have had the benefit of reading Jackson J's reasons. Although I adhere to the construction of s 36(1C) of the Migration Act 1958 (Cth) that I gave in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84, to the extent that this differed from that of Thomas and Snaden JJ, I consider that those reasons must now be applied. I agree with Jackson J's analysis and reasons for dismissing this appeal with costs.

Associate:

Dated:    7 July 2023

REASONS FOR JUDGMENT

JACKSON J:

2    It is a necessary criterion for the grant of a protection visa that the first respondent (Minister) must consider, on reasonable grounds, that the non-citizen is not a person who, having been convicted by a final judgment of a particularly serious crime, 'is a danger to the Australian community': Migration Act 1958 (Cth) s 36(1C)(b). In the recent case of DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84, a Full Court, in two separate judgments, considered the meaning of that phrase.

3    This appeal is similar to DMQ20. As in that case, so in this, the meaning of the quoted phrase was in issue. As in that case, so in this, the unanimous view of the Full Court is that the Administrative Appeals Tribunal that dismissed the application for review did not commit jurisdictional error when it concluded that the appellant was 'a danger to the Australian community'. This appeal was heard before DMQ20 was handed down, but no party has since sought to make any submission about its correctness, so this appeal simply calls for its application. I discern differences between the two judgments in DMQ20, however, so it is appropriate to state the construction of 'a danger to the Australian community' that emerges from it. For the following reasons, on the application of that construction the present appeal must be dismissed.

Background

4    The appellant SLGS left Sudan when he was about 8 years old and lived in Egypt as a refugee before arriving in Australia on a Global Special Humanitarian visa in May 2006 when he was about 10 years old (Administrative Appeals Tribunal (AAT) para 8; primary judgment (PJ) [4]). He has been in Australia since then, so he reached 18 years of age in around 2014. From that time, he accrued approximately 39 criminal and traffic convictions. In 2018 he was sentenced to an aggregate term of 15 months' imprisonment for 31 offences, including driving while disqualified, unlicensed driving and driving while suspended, criminal damage, receiving stolen goods, affray, theft, resisting a police officer, possession of cannabis, possession of prohibited weapon without exemption, committing an indictable offence whilst on bail, recklessly causing injury, and intentionally damaging property (AAT paras 9, 43; PJ [5]).

5    After the appellant was sentenced for those offences, a delegate of the Minister cancelled his visa under s 501(3A) of the Migration Act on the basis that he did not pass the character test and was serving a sentence of imprisonment against a law of a State (AAT para 10; PJ [6]-[10]).

6    The appellant then applied for a protection visa, but a delegate of the Minister refused the application. The appellant sought review in the Tribunal. On 27 May 2021, the Tribunal affirmed the Minister's decision. It did so essentially because it agreed with the delegate that the appellant was a danger to the Australian community for the purposes of s 36(1C)(b) of the Migration Act.

7    The appellant then applied for judicial review of the Tribunal's decision and on 8 September 2022 a judge of this Court dismissed that application. The appellant now appeals to the Full Court.

The ground of appeal

8    The appellant's sole ground of appeal is that the primary judge erred in not finding that the Tribunal's decision was infected by jurisdictional error in that it failed to perform its statutory task or, alternatively, did not act on a correct understanding and application of the applicable law in determining whether the applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Migration Act. As originally drafted, the ground of appeal did not condescend to describe the correct understanding of the law which the primary judge should have applied. However in an amended notice of appeal, two alleged errors were identified. First, it is said that her Honour should have found that the phrase 'is a danger to the Australian community' in s 36(1C)(b) of the Migration Act requires 'a present and serious risk amounting to danger, and not just a possibility of risk nor a real risk'. Second, it is said that the present and serious risk must be 'to the Australian community and its people in general, as a whole or at large', and not just to a segment of the Australian community or one member of that community (unless the target is a person 'in their capacity as a personification of the Australian community in general').

The legislative framework

9    Under s 65 of the Migration Act, if, after considering a valid application for a visa, the Minister is satisfied that the criteria for the visa prescribed by the Act or the Migration Regulations have been met, and is satisfied of other matters not presently relevant, then the Minister is to grant the visa. If the Minister is not so satisfied, he is to refuse the visa.

10    The criteria specific to a protection visa are found in s 36. Criteria going to whether the applicant is owed protection obligations, or is a member of the same family unit as a person to whom those obligations are owed, are in s 36(2). Under s 36(1A), an applicant for a protection visa must satisfy at least one of those criteria, as well as both of the criteria in s 36(1B) and s 36(1C).

11    Section 36(1B) imposes as a criterion for a protection visa that the applicant is not 'assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979)'.

12    Section 36(1C), which is the subject of this appeal, is:

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia's security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

13    Section 5M defines 'particularly serious crime' to include 'a serious Australian offence'. Section 5 defines 'serious Australian offence' as including an offence that involves violence against a person and is punishable by imprisonment for a maximum term of not less than three years.

The Tribunal's decision

The issues before the Tribunal

14    The Tribunal noted that the delegate found that the appellant was a person to whom Australia owed protection obligations under relevant provisions of s 36(2). The Tribunal did not review that finding, but rather stated the issues before it as whether the applicant had been convicted by a final judgment of a particularly serious crime and whether he was a danger to the Australian community. In other words, the issues concerned whether he met the criterion in s 36(1C), in particular, s 36(1C)(b). The appellant's legal representative submitted that there were other issues but they are not relevant in this appeal.

The Tribunal's survey of the law

15    The Tribunal surveyed what it considered to be the applicable law on the subject of whether the appellant was 'a danger to the Australian community'. In the course of that, it noted what the Minister had referred to in his statement of facts, issues and contentions as differing interpretations of 'danger to the Australian community' under s 36(1C)(b) of the Migration Act. Those differing interpretations were the approach taken by the Hon Brian Tamberlin QC, sitting as a Deputy President of the Tribunal in Re WKCG and Minister for Immigration and Citizenship [2009] AATA 512, and the approach of Logan J, sitting as one member of a Full Court in DOB18 v Minister for Home Affairs [2019] FCAFC 63; 269 FCR 636. The relevant passages from each of those decisions are fully canvassed in DMQ20 and there is no need to do so again here. To the extent that they placed any construction on the phrase 'danger to the Australian community' in s 36(1C)(b), they are superseded by DMQ20. It is only necessary to note them as context for the Tribunal's conclusions, including the meaning of 'danger' posed by Logan J as a 'present and serious risk' (DOB18 at [83]). The Tribunal accepted a submission by the Minister that the respective approaches of Tamberlin DP and Logan J could be reconciled. But it also indicated that (for reasons that followed) it accepted a further submission that, regardless of which test was adopted, the appellant was a danger to the Australian community.

16    After agreeing with both parties that the appellant had been convicted of a 'particularly serious crime' within the meaning of s 36(1C)(b) and s 5M, the Tribunal then returned to the applicable law about 'danger to the Australian community'. It adopted a summary of the law given by Deputy President Handley and Member Connolly AM in Re BHYK and Minister for Immigration and Citizenship [2010] AATA 662, following WKCG, posing the question as 'whether there is a real or significant risk or possibility of harm to one or more members of the Australian community'. The Tribunal then said (AAT para 50) that in order to consider that:

… the Tribunal should consider the circumstances of each individual case, with reference to the following factors identified by the Tribunal in WKCG at 438 [26], being:

(a)    the seriousness and nature of the crimes committed;

(b)    the length of the sentence imposed;

(c)    whether there are any mitigating or aggravating circumstances;

(d)    the extent of the criminal history;

(e)    the nature of the prior crimes;

(f)    the period over which these prior crimes took place;

(g)    the risk of re-offending and recidivism and the likelihood of relapsing into crime;

(h)    the criminal record as a whole; and

(i)    prospects of rehabilitation.

The Tribunal's consideration of the factors from WKCG

17    The Tribunal structured its subsequent consideration of the appellant's circumstances by reference to each of these factors, although it found that some overlapped and could be considered together.

18    In relation to the nature of the crimes committed, the Tribunal summarised the appellant's adult convictions as follows (AAT para 52):

(a)    violence, such as 'unlawful assault', 'recklessly cause injury', and 'affray';

(b)    the possession of weapons, such as 'possess controlled weapon without excuse' and 'possess prohibited weapon without exemption/approval';

(c)    theft and stolen goods, such as 'burglary', 'theft from motor vehicle', 'obtain property by deception', 'theft', 'theft of bicycle' and 'handle/receive/retention stolen goods';

(d)    driving offences, such as 'unlicensed driving', 'drive whilst disqualified' and 'driving whilst authorisation suspended';

(e)    breaches of court orders (specifically several charges for 'fail to answer bail');

(f)    a disregard for lawful authority, such as 'resist police officer', 'state false name when requested' and 'state false address when requested';

(g)    property offences, such as 'criminal damage (intent damage/destroy)' and 'intentionally damage property'; and

(h)    other offences, such as 'drunk in a public place' and 'possess cannabis'.

19    The Tribunal described in detail the circumstances of some of the offending by reference to the sentencing remarks. Its description of the offences that involved violence was as follows (AAT paras 55-57, references removed):

The 'unlawful assault' incident referred to above, involved the Applicant holding the victim's arms while his new girlfriend pulled the victim's hair and hit her in the face with an open hand. The sentencing remarks state that '[t] he victim was crying in pain'. The victim flagged down a passer-by in a car and used the passer-by's telephone to call 000. When reporting the unlawful assault incident to police, the victim told police that the Applicant had a firearm underneath his mattress. When police searched the house, they found a small imitation revolver under the bed.

Regarding the 'recklessly cause injury' offence, the Applicant 'struck the victim to the face using his fist, causing a cut above the victim's right eye and swelling of the same' while they were both in the back seat of a vehicle. At the time of the offence, the Applicant had been in a relationship with the victim for approximately a year. The victim escaped the Applicant through the rear car window because the doors were locked. The Applicant continued to chase her on foot and had to be restrained by his friends from further assaulting the victim. When police arrived, the Applicant continued to chase the victim's friend and ignored police demands to stop. Police were forced to use capsicum spray on the Applicant 'in an attempt to prevent further assaults'. The victim was described as 'unable to open her right eye and was very distressed' and had to be taken to hospital by ambulance for treatment.

As noted above, the 'affray' charge resulted from the Applicant being in a drunken brawl where he was fighting with other males in an alleyway. When seated on the ground by police, the Applicant was seen attempting to remove and conceal a 'sheath kitchen knife'. When searched by police the Applicant, 'proceeded to thrash about whilst continuing to swear and scream abuse in the direction of police'. When police searched the Applicant, they found five mobile phones which were believed to be stolen. As was further stated in the sentencing remarks:

[The Applicant] has attempted to decamp resulting in the same to be restrained and taken to the ground and subdued by police. Upon being taken to the ground, he had been forced into the pod and also kicked the door numerous times, preventing police from closing the pod door.

20    The Tribunal's description of the driving offences, and other associated offences, was as follows (AAT para 58, references removed):

The Applicant has also committed numerous driving offences. On 10 July 2015, he drove to a petrol station with two co-offenders, who started stealing items from the petrol station store, despite the Applicant's driver's licence having been cancelled on 20 May 2015 for failing to provide a drink driving education certificate. When he later attended the police station, police searched him and found him to be in possession of a stolen credit card. On 16 January 2016, the Applicant also drove at a speed of 107 kilometres per hour in a 60-kilometre zone despite his licence having been cancelled at that time. On 27 July 2017, the Applicant's licence was suspended in relation to demerit points. However, on 8 September 2017, when police pulled his car over for a licence check, the Applicant stated that '[he] didn't know [the license] was suspended'. The Applicant was again pulled over by police when driving on 14 December 2017, despite his licence having been cancelled, and was found to have a blood alcohol reading of 0.270 grams per 210 litres of breath.

21    Other offences described by the Tribunal include an incident where the appellant and two co-offenders 'walked around a suburb breaking into cars and stealing money and personal items from cars' (AAT para 59), where the appellant 'smashed a car window with a brick to obtain a handbag from the front passenger seat and used the victim's credit card to buy liquor' and another where he pushed a shopping trolley into the window of a hotel causing it to smash and subsequently gave police a driver's license in another person's name. The Tribunal summarised the appellant's offences as 'broad ranging and [including] violent offences, weapons possession offences, offences involving the destruction of property, and other offences including theft and breaches of bail' (AAT para 62).

22    The Tribunal then considered the seriousness of the crimes committed. It observed that the appellant's violent offences, particularly those involving violence against women, were serious and risked the safety of the community because victims can potentially suffer serious harms including injury, disablement or death.

23    The Tribunal then quoted passages from the sentencing remarks of the Magistrate on 16 August 2018 which highlighted the serious nature of the violent offending. On that occasion, the Magistrate was sentencing the appellant for 31 offences. His Honour described the appellant as 'completely and utterly out of control'. He referred to 'repeated violence' and said 'his hitting of women is despicable'. Part of a passage from those remarks quoted by the Tribunal (AAT para 64) was:

Whether he is substance affected or not, he's a big fellow. I mean, he's not some little pipsqueak. He looks like he is about 185 centimetres tall and he probably weighs about 85, 90 kilos. He's big. He's strong and he chucks his weight around. He gets himself grogged up, possibly drugged up because there's some cannabis at least, and he hurts people and he smashes windows and he commits burglaries and he's just way out of control, you know, he's lawless. …

[H]is propensity to hit women is hugely concerning to me. … He is completely out of control. … the offending that pre-dates my involved [sic] with you in March last year and, more importantly, the offending that comes after that involvement is all serious. None of it is minor. The affray in the city is a serious offence. … Every time somebody gets punched there is a real risk that they receive a fatal injury. Any given punch at any time can kill. You are big. You are strong. Whether you intended it or not is irrelevant. You have the power just by punching people to kill them and hitting women, there isn't a culture in the world that says it's okay for men to hit women.

24    And, in relation to the 'recklessly cause injury' offence, the Tribunal quoted the Magistrate as saying (AAT para 65):

you hit her [the victim] so hard that her eye all blew up and she had to go to hospital for treatment and you pursued her and even when police come, you continue to behave outrageously, completely and utterly out of control.

25    The Magistrate had described the blood alcohol level of 0.27 while driving as 'a big reading' and said (AAT para 66):

If you had crashed and killed somebody with that blood alcohol reading, you would have been completely indefensible on a charge of culpable driving … It's just luck that the coppers pulled you up, only God knows what might have happened if they hadn't and you had no hope of properly controlling a car at that blood alcohol level. You may have thought you did, but you didn't and that's what's wrong with that offending.

26    The Tribunal concluded as to the seriousness of the appellant's offending (AAT para 67):

The Tribunal acknowledges that the Applicant has committed some offences that are of a less serious nature, for example, 'fail to answer bail' and 'drunk in a public place' in 2016. However, the Applicant's subsequent offending has become more frequent and serious, including weapons offences and offences involving violence. The Applicant's misuse of alcohol (which is discussed further below) is also very concerning because there is a link between his alcohol use and his offending. For the reasons set out above the Applicant's offences involving violence are very serious. Additionally, the Applicant's driving offences cannot be considered as minor misdemeanours given the serious consequences that can result from drink driving.

27    The balance of the Tribunal's consideration of the factors drawn (ultimately) from WKCG can be described more briefly. As to length of sentence, it found that the appellant's 15 month sentence imposed for the 31 offences on 16 August 2018 was 'illustrative of the volume and overall seriousness of the Applicant's offending, particularly given that the Applicant was only 22 years of age at the time of sentencing' (AAT para 71).

28    In relation to the extent of the criminal history, the period over which prior crimes took place, and the criminal record as a whole, the Tribunal found that 39 offences is an extensive criminal history for a 22-year-old. The Tribunal described the appellant as a frequent offender. The Tribunal did not accept the appellant's submission that he was not a danger to the community because his offending was confined to a three year period, stating that it does not follow that the offending would be isolated to that period.

29    In relation to mitigating circumstances, the Tribunal said that because of a lack of evidence, it could not make a finding that the appellant's childhood difficulties were a mitigating factor. It went on to say that even if it could make that finding, it does not necessarily follow that the appellant is not a danger to the Australian community. The Tribunal reasoned that while it might explain or excuse subsequent offending, without evidence of rehabilitation, 'unresolved and untreated childhood trauma may, depending on the circumstances, be a factor that increases the likelihood of future reoffending' (AAT para 76).

30    The Tribunal then considered the appellant's prospects of rehabilitation, risk of re-offending and recidivism and the likelihood of relapsing into crime. In discussing this, the Tribunal described in detail the appellant's 'problem with alcohol' (AAT para 77). After reviewing certain materials about his use of alcohol, the Tribunal said that it was concerned that his alcohol issues had not been adequately addressed as he had undertaken minimal treatment. This was concerning due to the link between alcohol and the appellant's offending. While his stated intention was not to consume alcohol, that had not been tested in the community. The Tribunal found that until the appellant's treatment needs were met, there was a prospect that he would consume alcohol again upon being released, which could elevate the likelihood of his reoffending and being a danger to the community.

31    The Tribunal then referred to two reported incidents involving violence which allegedly took place while the appellant was in immigration detention: one on 17 October 2019 where the protection visa decision record stated that the applicant pushed another detainee in the chest and stared at him, and the second on 15 November 2019 where the protection visa decision record said the applicant smashed a computer on the ground and then punched another detainee in the chest. The Tribunal concluded that the incidents raised concerns about the appellant's 'consequential thinking and his ability to control his anger' (AAT para 93).

32    The appellant also submitted that he had ended his association with 'negative peers' (AAT para 94). However, the Tribunal found that the appellant deflected responsibility onto those peers rather than accepting responsibility for his offending, and also that whether he can continue not to be associated with them if released 'remains to be seen'.

33    The Tribunal accepted that the appellant's time in prison and immigration detention, his separation from his family and the possibility of permanent separation if he is deported may deter him from reoffending (AAT para 97). The Tribunal noted that if the appellant was released and accessed community support services available, this would likely assist with his re-integration and rehabilitation (AAT para 98).

The Tribunal's reasoning as to whether the appellant was a danger to the community

34    After describing s 36(1C)(b) of the Migration Act as a 'disentitling provision' (AAT para 99), and saying again that the approach in WKCG and that of Logan J in DOB18 were largely consistent and could be reconciled, the Tribunal reasoned as follows (AAT paras 101-103):

However, in the Applicant's circumstances there is no need to reconcile any differences in the approaches. This is because regardless of the approach adopted, the Tribunal finds that the Applicant would be a danger to the Australian community, even if the Tribunal were to adopt the more restrictive approach of Logan J.

That is, regardless of which interpretation is applied, after an evaluation of the factors in WKCG there are reasonable grounds to conclude that the Applicant is a danger to the Australian community. That is, based on an evaluation of the factors in WKCG, the Tribunal finds that should the Applicant be released into the Australian community, there is a 'real or significant risk or possibility of harm to one or [more] members of the Australian community'.

The specific factors identified in WKCG that were indicative of the Applicant being a danger to the Australian community were discussed in detail above, but in summary included the following.

(a)    The broad ranging nature and seriousness of some of the Applicant's offences, which included violence against former girlfriends, fighting in public and weapons possession offences.

(b)    The aggregate sentence of imprisonment imposed on 16 August 2018. The imposition of a term of imprisonment is usually a sentence of last resort, especially given the Applicant was only 22 years of age at the time he was sentenced.

(c)    The extent of the Applicant's offending which comprised 39 offences over an approximately three-year period, with the sentencing Magistrate describing the offending as a course of conduct and the Applicant as being 'out of control'.

(d)    There is a direct relationship between the Applicant's alcohol abuse issues and his offending, and yet he has not undertaken any intensive treatment for alcohol abuse and ceased attending Alcoholics Anonymous when he was denied parole.

(e)    The Applicant's risk of reoffending and recidivism and the likelihood of relapsing into crime, which the Tribunal finds is likely to be high, taking into account the comments of the sentencing Magistrate, the assessment by prison treatment assessors that the Applicant was a high risk, and the two incidents in immigration detention that tend to suggest that the Applicant has issues with anger management and consequential thinking.

35    After summarising certain factors that weighed in the appellant's favour, the Tribunal concluded that they were not enough to outweigh the finding that he was a danger to the Australian community. Accordingly, the Tribunal determined that he did not satisfy the criterion in s 36(1C)(b) of the Migration Act and affirmed the decision of the delegate to refuse to grant a protection visa.

The primary judgment

36    The relevant ground of judicial review before the primary judge was that the Tribunal erred in its understanding and application of the meaning of the statutory phrase 'a danger to the Australian community'. The appellant made four submissions, none of which were accepted by the primary judge.

37    First, the appellant submitted that the phrase 'the Australian community' in s 36(1C) should be read in contradistinction to the phrase 'the Australian community or a segment of that community' elsewhere in the Migration Act. The primary judge held that the presumption that words and phrases are used consistently throughout an Act is 'readily rebuttable if the context compels a different construction' and is less strong in respect of words within large and frequently amended statutes such as the Migration Act (PJ [32]).

38    The primary judge also found that the difference in language in s 36(1C) as compared to other sections of the Migration Act can be explained, as it mirrors the language in the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (Refugees Convention) and therefore reflects Australia's understanding of its international obligations under that convention (PJ [38]-[41]). Her Honour concluded (at [41]) that the difference in language does not mean that it can be taken that the Parliament intended that 'the Australian community' means the whole of the Australian community and not a 'segment' of it.

39    Second, the appellant submitted that s 36(1C) codifies Article 33(2) of the Refugees Convention in which, according to the leading scholars Sir Elihu Lauterpacht QC and Sir Daniel Bethlehem QC, 'danger to the community' is 'intended as a reference to the safety and well-being of the population in general'. That is in contrast to the national security exception (embodied in s 36(1C)(a) of the Migration Act) which is 'focused on the larger interests of the State': Lauterpacht and Bethlehem, 'The scope and content of the principle of non‑refoulement: Opinion', in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNCHR's Global Consultations on International Protection (Cambridge University Press, 2003) 87 at [192], [147]. On this, the primary judge found that there was 'nothing in that passage or the context in which it appears, to indicate that the authors addressed the issue of whether a risk to the community can involve a risk to individuals (or a segment of the community), as distinct from the community as a whole' (PJ [42]).

40    Third, the appellant submitted that the Court should give effect to the plain and ordinary meaning of words used, which the primary judge accepted as a matter of principle. However, as to what that meaning was, her Honour did not accept the appellant's submission that the plain and ordinary meaning of 'community' is 'a body of people or things viewed collectively; the people as a group', or 'all the people of a specific locality or country'. Her Honour preferred the Minister's submission that on the ordinary meaning of the word 'community', in its context, a person may pose a danger to the community by harming individuals within it.

41    Fourth, the appellant submitted that the Court should interpret 'danger to the Australian community' restrictively because s 36 is beneficial in nature and its purpose is protective. The appellant submitted that this means the principle of statutory interpretation requiring strict construction of an Act which affects personal liberties applies. The appellant also submitted that, accordingly, there is a 'quantitative element' in the s 36(1C)(b) assessment which requires the danger to extend beyond 'one or more members' or a 'segment' of the Australian community (PJ [24]). That was in addition to a qualitative aspect which requires a risk of affecting the Australian community as a whole in the future (PJ [48]). The appellant's submission was that if the fact finder concludes that the appellant has been convicted by a final judgment of a particularly serious crime, and there is a high likelihood of recidivism for those types of crimes, unless the crime(s) relate to or impact on the community as a whole, s 36(1C)(b) is not satisfied.

42    The appellant gave the example of domestic violence as an offence of a nature that only has one intended victim or target, meaning that if there is a risk of recidivism for the same type of offending, only one person can potentially be affected, so that the criterion of being a danger to the community is not satisfied. Conversely, the appellant referred to drug importation crimes as having what the appellant described as the requisite 'ripple effect' (PJ [50]) to satisfy the criterion of danger to the community. But the primary judge found that such a characterisation of domestic violence offences fails to recognise the potential impact of such offending on the community and that it is an offence of violence. Further, the primary judge stated that domestic violence offences have potential to cause a ripple effect in the community for example by impeding victims' participation in the community (PJ [50]).

43    The primary judge then referred to the facts of this case, stating that if the 'recklessly cause injury' and 'unlawful assault' offences against former girlfriends were considered domestic violence offences then the appellant's submission that such offences only affect one person is dispelled by the fact that the appellant committed those offences against two former girlfriends (and the fact that passers-by and friends were drawn into the incidents) (PJ [51]). The primary judge also referred to the fact that the appellant's affray offence involved concealing a knife, and other offences were random.

44    The primary judge therefore accepted the Minister's submission that the appellant's construction would render s 36(1C) very narrow, such as to lead to an absurd result and stated that the appellant's construction is therefore unlikely to be the intended construction and is unsupported by precedent (PJ [45], [54]).

45    The appellant made an additional submission that on the Minister's construction, the danger to the Australian community would be satisfied by establishing that the person had been convicted by final judgment of a particularly serious crime and so there would be no work for the second part of s 36(1C)(b) to do (PJ [55]). The primary judge rejected this submission on the basis that if an appellant has been convicted by final judgment of a particularly serious crime, whether the appellant is a danger to the Australian community depends on an assessment of facts and circumstances that extend beyond the nature of the offence(s) committed (PJ [56]). The primary judge gave the example of prospects of rehabilitation and cited WKCG at [26].

46    The primary judge therefore did not accept that 'the Australian community' in s 36(1C)(b) meant that the provision only operated when there was a danger to the whole of the Australian community. Her Honour held that what constituted a danger to the Australian community stands to be determined upon the facts and circumstances of individual cases, and a person could pose a danger to the community by harming individuals within it. She held that the appellant had not established the ground. Nor had he established his other ground of review (not pursued on this appeal), so the application for judicial review was dismissed, with costs.

The appellant's case on appeal

47    I have described above the two contentions that the appellant makes under the head of a single ground: that 'danger' means a 'present and serious risk'; and that 'the Australian community' means that community and 'its people in general, as a whole or at large'. The first was not argued before the primary judge, and while the Minister objected to it as a new argument in his written submissions, he engaged with it and did not press the objection at the hearing. I will deal with it on its merits.

48    In any event, the short answer to both contentions is that they were each put in DMQ20 and each unanimously rejected by the Full Court. Lead counsel for the appellant in DMQ20 was lead counsel for the appellant SLGS in this case. But he has not sought leave to make any submission about the correctness of DMQ20, so the role of this Court is to apply that decision. Nevertheless, as mentioned above it is appropriate to consider the correct approach to s 36(1C)(b) in light of the different judgments in DMQ20.

49    In the present case the appellant's written submissions did not clearly distinguish between the first contention and the second contention. The meaning of 'danger' he appeared to put forward was that it required the Tribunal to 'determine whether there is - not may be, nor possibly will be - a present and serious (being more than just a real) risk amounting to a danger' (appellant's written submissions para 10). The appellant appeared to criticise the Tribunal's formulation of 'danger' as 'a real or significant risk or possibility of harm' (see [16] above). As in DMQ20, the appellant here emphasises that s 36(1C)(b) directs attention to whether a person 'is' a danger, drawing a distinction between that and whether the person 'may be' a danger. He characterised what the Tribunal had done as being to find that it was enough if the person was 'possibly' a danger.

50    In oral submissions, counsel for the appellant emphasised that the requirement, in s 36(1C), that the Minister 'considers, on reasonable grounds' that the person 'is a danger' confirms that there must be a factual basis for an assessment that the person 'is' a danger, not just that there is a mere possibility that the person is a danger. Nevertheless, the appellant appeared to accept that 'danger', if not equivalent to 'possibility', still imports a notion of 'risk' albeit, in the appellant's submission, a risk that is 'both present and serious', more than a 'real risk', but not as high as a 'very serious danger'. In reply he submitted that a risk becomes a danger depending on the proximity of the adverse event, so that a risk needs to be 'present and serious' in order to be a danger.

51    In relation to the second contention, about the meaning of 'the Australian community', the appellant's submissions to this Court were the same as those made to the primary judge, which have already been described above. It is only necessary to add two points. First, in making submissions about international eminent opinion on Art 33(2) of the Refugees Convention the appellant relied, in addition to Lauterpacht and Bethlehem, on commentary authored by Professor Atle Grahl-Madsen and published by the United Nations High Commissioner for Refugees in 1997 which, the appellant submitted, said that the word 'community' as used in Art 33(2) denotes the population at large: Grahl-Madsen A, Commentary on the Refugees Convention 1951 (Articles 2-11, 13-37), United Nations High Commissioner for Refugees, 1997. Second, the appellant criticised the primary judge's description (at PJ [50]) of his argument as requiring 'an assessment based on a perceived characterisation of offences'. The appellant appeared to dispute that description of his position, saying instead that s 36(1C)(b) requires a 'forward-looking assessment of "danger" to the Australian community'. According to the appellant it follows from this that 'even a horrific but very targeted crime arising from a personal relationship in a person's history could be found to be no basis to conclude that the person "is a danger to the Australian community" as a whole, in general or at large' (appellant's written submissions para 39).

52    Counsel also sought to explain that the construction of s 36(1C)(b) he advanced did not require that the non-citizen be a danger, literally, to every person in the community. He appeared to accept that terrorist acts which only harmed one person could still make the perpetrator a danger to the Australian community, and also that non-politically motivated attacks could qualify. The example discussed in oral submissions was that of the person who drove a car into the Bourke Street Mall in Melbourne, killing and injuring many pedestrians. Counsel submitted that this person would be a 'danger to the Australian community' on his construction of s 36(1C)(b) because he 'was trying to attack as many people as possible, trying to cause fear for as many people as possible. There was a randomness to it, there was a presentness to it, there was immediacy to it and there was a seriousness to it'. But that extreme example did not help him articulate where the dividing line was between a person who is a danger to the community and person who is only a danger to individuals.

53    In oral submissions, counsel explained the qualification which the appellant put on the general proposition that a danger to an individual was not a danger to the Australian community, namely that an attack on a single person could mean that the attacker is a danger to the community if the target of the attack 'is an emblem or a personification of the Australian community in general'. In written submissions, the appellant gave the examples of the Governor-General, a member of parliament or a judge (para 10). Counsel explained that it stands to reason that if a person who is an emblem or a personification of the Australian community in general is attacked in that capacity, then that is an attack on the Australian community at large, or as a whole.

54    The two contentions about 'danger' and 'the Australian community' were not always clearly separated in the appellant's submissions, and it must be acknowledged that in the end, the phrase must be understood as a composite one. The nature of 'the Australian community' will inform what is capable of being a 'danger' and conceivably vice versa. Nevertheless, it is convenient to consider how each part of the phrase was approached in DMQ20, before turning to apply the principles laid down in that case to the present case.

Discussion of the meaning of 'danger' in DMQ20

55    The submissions made by the appellant on this point - the meaning of 'danger' in the phrase 'danger to the Australian community' in s 36(1C)(b) - were also made in substance in DMQ20. It is true that the appellant DMQ20 criticised a formulation he attributed to the primary judge in that case, that danger required 'a peril or only a risk or a possibility' (DMQ20 at [26]), rather than the formulation 'a real or significant risk or possibility of harm' which was in issue here. But the point was the same; a possibility of harm was not enough.

56    In DMQ20, Rares J held that, apart from the specific definition of 'very serious crime' in s 5M, s 36(1C) appeared to reflect the extent of Australia's international obligations by reason of its ratification of Art 33(2) of the Refugees Convention. His Honour considered that the statutory provision should be interpreted, as far as possible, to be consistent with international law: see Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11; 97 ALJR 276 at [16]. In that regard his Honour referred to overseas judicial opinion on the Refugees Convention, or domestic statutory embodiments of it, in Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3 at [90]-[91]; Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 at [45]; and EN (Serbia) v Secretary of State for the Home Secretary [2010] QB 633 at [45], [114], [118]. His Honour also referred in detail to Professor Grahl-Madsen's commentary.

57    In relation to the specific meaning of the expression, 'a danger', Rares J noted that this term was used in s 36(1C)(b) in contradistinction to the word used in s 36(1B) of 'a risk to security' in s 36(1B). The language in s 36(1B) is not the language of the Refugees Convention, but with necessary changes, s 36(1C) is, confirming that in the latter the words should be given the same meaning as they have in Art 33(2). However the contrast with Parliament's choice of the word 'risk' in s 36(1B) shows that the Parliament intended that 'danger' refers to something more than a mere risk that the person is a danger.

58    After referring to dictionary definitions, Rares J held (at [52]) that a 'danger, in its natural and ordinary meaning as used in Art 33(2) and s 36(1C) (as understood by States Party to the Refugees Convention) conveys a threat of a substantial kind to Australia's security or the Australian community based on objectively reasonable grounds (or suspicion)'. His Honour cited the three overseas authorities just mentioned.

59    Justice Rares then went on (at [53]-[54]) to break the concept down to two spectra:

comprising, first, the probability or likelihood of the occurrence of an event or circumstance and, secondly, the consequence of its occurrence.

Thus, the word 'danger' connotes that there are reasonable grounds to perceive a threat of serious, or potentially serious, consequences if the situation said to pose the danger were ignored …

60    His Honour gave examples of dangers such as that of electrocution or collision with a train to show that the concept often involved dangers to life or dangers of serious injury. He noted that, as used in s 36(1C)(b), a 'danger' can relate to the 'particularly serious crime' to which the provision refers, as that might bear on what will occur if the person is admitted into the Australian community. The provision does not require a causal link between that past crime and the danger, but nor does it exclude having regard to the past crime in evaluating the present or future danger. His Honour quoted approvingly the observations of Stanley Burton LJ in EN (Serbia) at [46], concerning Art 33(2), that:

normally the danger is demonstrated by proof of the particularly serious offence and the risk of its recurrence, or the recurrence of a similar offence' and 'a disregard for the law, demonstrated by the conviction, would be sufficient to establish a connection between the conviction and the danger.

61    In DMQ20 at [67], Rares J summarised his opinion as being that s 36(1C)(b) reflects a norm of public international law contained in Art 33(2) to the effect that a State Party has no obligation:

to accept a refugee who is a danger to the community of that State in the broad sense that, were such a person to be allowed to remain, there are reasonable grounds, based on evidence, for regarding [or to 'consider' in the language of s 36(1C)] that he or she poses a serious threat of causing substantial, rather than negligible, harm because he or she would, or would be likely to, commit a crime or crimes or act in such a way that offended significant societal norms in that society.

62    In contrast to this, Thomas and Snaden JJ preferred to avoid using any particular form of words to describe or elaborate on the meaning of the word 'danger' in s 36(1C)(b). Noting that it was not defined in either the Migration Act or the Refugees Convention, their Honours said (at [106]) that it was 'a term of everyday usage, which should be understood to carry its ordinary meaning'. Like Rares J, their Honours conceived of it as constituted of two concepts along spectra of 'probability and consequence' (DMQ20 at [107]), 'consequence' referring to the severity or otherwise of the harm visited if the future conduct does come about.

63    Justices Thomas and Snaden said that the appellant's submissions in DMQ20 had not clearly articulated what combination of probability and consequence sufficed to qualify as a 'danger' in s 36(1C)(b). After setting out some oral submissions of counsel for the appellant, their Honours eschewed attempts to distinguish in this context between concepts such as 'risk', 'possibility' or 'probability' or between the existence of a danger and the possibility that a danger exists, or between a person who is a danger and a person who might be one. This provides an answer to the attempt by the appellant in the present case to distinguish between someone who is a danger and someone who may be or is possibly a danger. Justices Thomas and Snaden characterised this dimension of probability (or possibility or risk) as 'quantitative' (DMQ20 at [109]).

64    For Thomas and Snaden JJ, the other dimension in 'danger' in s 36(1C)(b) was 'qualitative' and 'was intended to denote a prospect of harm' (DMQ20 at [111]). It was likely that it is a harm of a non-trivial kind, where the likelihood that a person 'might cause others to feel anxious, offended, embarrassed, miserable or despondent, for example' was unlikely to suffice. '"Danger" implies a prospect (howsoever measured) of injury (at the least), most likely of physical or psychological kinds.' Their Honours considered that this analysis accorded with the limited assistance afforded by the international authorities canvassed by Rares J.

65    Justices Thomas and Snaden held that the two inquiries - qualitative and quantitative - were related. The higher the probability of an event, the less severe its consequences might need to be for the prospect of its occurrence to qualify as a 'danger', and vice versa. After considering examples like driving in a car with brakes known to be faulty, or a game of 'Russian roulette' with a loaded gun, their Honours observed (at [114]):

To speak of the presence of 'danger', then, is to speak of a risk of harm that extends beyond what ordinarily attends routine human activity. Driving in a car, flying in a commercial aeroplane and swimming in the ocean are all activities that carry some inherent risk of harm; and yet they could not properly be regarded as dangerous (at least not when undertaken in the usual ways). Perhaps in recognition of that, it has been said that a risk of harm that is not 'serious' falls short of the statutory conception of 'danger' in s 36(1C)(b) of the Act: DOB18 … [at] [83 (Logan J).

66    Thus (DMQ20 at [115]-[116]):

Insofar as danger might present in the form of a person (as s 36(1C) of the Act contemplates), the likelihood that he or she might visit harm upon others must at least rise beyond what is contemplated by ordinary personal interactions …

In its human form, then, 'danger' presupposes that there should be something about a person's character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person's prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.

67    And (DMQ20 at [118]):

[I]t is likely not possible - and much less is it advisable to attempt - precisely to define what does and does not constitute 'danger' for the purposes of s 36(1C)(b) of the Act. It is a concept without technical meaning that falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given matter: [WKCG at] [25] (Tamberlin DP); LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17, 30 [57] (Jackson J). Perhaps like other indefinable concepts, one generally knows it when one sees it (to borrow from the famous observation of Mr Justice Stewart in Jacobellis v Ohio 378 US 184, 197 (1964); see also the observations of the Victorian Court of Appeal in R v Panozzo (2007) 178 A Crim R 323, 340 [43] (Chernov and Redlich JJA and King AJA)).

68    In the case before them, their Honours held that it was clear beyond doubt that the appellant DMQ20 was a 'danger' within the meaning of s 36(1C)(b), because he had been found to pose 'a real, significant, serious and present risk of visiting physical harm' (DMQ20 at [120]).

69    In summary, then, Rares J considered that meaning could be given to the concept of 'danger' in s 36(1C)(b) by saying that it denotes a threat of a substantial kind, being a threat of serious or potentially serious consequences, or a serious threat of causing substantial harm as distinct from negligible harm. For Thomas and Snaden JJ, the prospective harm must be non-trivial, and is likely to involve physical or psychological injury. It is a risk of harm that extends beyond that which ordinarily attends routine human activity or ordinary personal interactions or the typical consequences of routine interaction. But none of that amounts to a precise definition of the concept, which falls to be considered in light of all the relevant facts and circumstances.

Discussion of the meaning of 'the Australian community' in DMQ20

70    In DMQ20, Rares J considered the appellant's contention as to the meaning of 'the Australian community' - the same contention as is made in this case - by reference once again to international authorities on Art 33(2) of the Refugees Convention or its domestic statutory cognates. His Honour noted that in Suresh, the Supreme Court of Canada had described the Canadian equivalent to s 36(1C)(b) as allowing the government to deport 'those who pose a danger to Canadians, as opposed to a danger to Canada': Suresh at [91]. His Honour also set out at some length passages from Professor Grahl-Madsen's commentary, on which the appellant relies (DMQ20 at [40]-[41]).

71    Justice Rares rejected the submission made in DMQ20 that the expression 'the Australian community' cannot refer to an individual within that community. At [57] his Honour observed that:

conduct that is inimical to significant norms of behaviour, including acts such as murder, assault occasioning bodily harm, drug trafficking, terrorism (including support for terrorism), frauds and domestic violence can be considered as constituting or evidencing a danger to the community as a whole, because they undermine or conflict with those norms, even though there may only be one actual or potential victim: see too EN (Serbia) [2010] QB at 655 [47].

72    In Rares J's view, a particularly serious crime has the potential to impact on and adversely affect the whole community, even though there may be only a single victim of the offending conduct. An unrepentant and unrehabilitated convicted murderer, for example, might pose a serious threat to the community since 'he or she could move throughout it and could engage in criminal activity anywhere within it' (DMQ20 at [58]). His Honour went on to consider examples of domestic laws that are aimed at protecting the public against dangerous persons.

73    Justice Rares' summary of his view as to the construction of s 36(1C)(b) has already been set out at [61] above. In relation to 'the Australian community', the touchstone for his Honour was whether the person 'would, or would be likely to, commit a crime or crimes or act in such a way that offended significant societal norms in [the] society'.

74    In their judgment in DMQ20, Thomas and Snaden JJ also rejected the appellant's submission as to what qualifies as 'the Australian community' for the purposes of s 36(1C)(b) of the Migration Act, holding that the phrase is 'apt to encompass any and all members of the population of Australia' (DMQ20 at [127]).

75    Justices Thomas and Snaden characterised the construction put by the appellant before them as being that the provision is intended to except from protection only visa applicants who pose a danger to the entirety of the Australian community, or the community as a collective. Their Honours found this impossible to reconcile with the statutory definition of 'particularly serious crime', which contemplates that any person who is convicted of an offence involving violence against a person might, by reason of that offence, be thought to be a danger to the Australian community. Although, whether he or she was thought to be so would need to be assessed in the usual way by reference to prospects of recidivism, remorse and rehabilitation (DMQ20 at 128]). But it was 'as good as impossible to see how the commission of such an offence (and the prospect of its repetition) might suffice to inspire some perception of danger to the community as a collective' (DMQ20 at [129]). The idea put in the appellant's case was that 'the exception in s 36(1C) would be enlivened only if he or she happened also to be somebody who posed some broader, national danger. Such a construction stretches the words of the statute beyond what is credible'.

76    Justices Thomas and Snaden considered each of the four arguments which were made to the primary judge as set out above, which were also made to the Full Court in DMQ20. In relation to the first argument, relying on other provisions in the Migration Act which appeared to draw a distinction between the Australian community and a segment of it, their Honours considered that the canon of construction that the words in an Act have the same meaning when used elsewhere in the same Act was not determinative in an Act like the Migration Act which had been subject to frequent amendment, and while the clear intention of s 36(1C) was to enact Australia's obligations under Art 33(2) of the Refugees Convention, where other provisions in different parts of the Act serve different purposes (DMQ20 at [134]-[135]).

77    Justices Thomas and Snaden next considered the appellant's second argument, relying on international commentary on Art 33(2), in particular that of Professor Grahl-Madsen (DMQ20 at [136]-[142]). Their Honours concluded that the commentary relied on merely identified a need to distinguish between the protection of the state from the protection of its citizens and recognised that a person may constitute a danger to the community by reason of prior conduct and the likelihood of its repetition. Their Honours read Professor Grahl-Madsen's commentary as addressing what the nature and circumstances of a crime committed by a person might entail for the risk of repetition so as to make the person a danger to the community. For example, if a crime is properly understood as aberrant or opportunistic, the risk might not be high. Their Honours also read the commentary as acknowledging that disruption of civil life might be caused by crimes against individuals. The commentary did not support the appellant's construction of s 36(1C)(b).

78    As to the third argument, about the 'plain and ordinary meaning' of the words of the statute, Thomas and Snaden JJ concluded that while a community was by its nature collective, the phrase 'danger to the Australian community' was a shorthand reference to the people that comprise it. Citing Suresh, they held that a person poses a danger to the Australian community if he or she poses a danger to Australians (DMQ20 at [144]).

79    As to the fourth argument, to the effect that the exception in s 36(1C)(b) should be construed narrowly because the purpose of s 36 is beneficial, while their Honours accepted that as a general proposition, they considered that ultimately the task was to construe the provisions in a way that accorded with their legislative purpose. The purpose of both s 36(1C)(b) and Art 33(2) of the Refugees Convention was (DMQ20 at [148]):

to protect the population from danger posed by those to whom refugee or complementary protection would otherwise be afforded. The construction of 'the Australian community' that the appellant favours would, if accepted, leave that purpose substantially unfulfilled. It would excise from the realm of visa protection only those who constitute a danger to Australia's security and those who, having a history of particularly serious criminality, constitute a danger generally to the whole of the Australian community (rather than constituent members of it). It would leave the community - via the agency of its individual members - exposed to the very species of significant harm that, in this case, was found to present. We do not accept that such a construction accords with the legislative purpose that evidently underpins s 36(1C) of the Act.

80    Nor could the proposition that the appellant may face indefinite detention if he was denied a protection visa by reason of s 36(1C)(b) detract from the need to read the provision consistently with that purpose. Their Honours concluded (at [151]) that the 'reference in s 36(1C) of the Act to "the Australian community" is apt to encompass any and all of the members thereof'.

81    Thus both judgments in DMQ20 rejected any suggestion that crimes committed against individuals were incapable of making a person a danger to the Australian community within the meaning of s 36(1C)(b) of the Migration Act. Rares J's construction of the phrase put emphasis on whether the person's conduct was 'inimical to significant norms of behaviour' or 'offended significant societal norms'. For Thomas and Snaden JJ, the task of the decision maker considering the criterion in s 36(1C)(b) is to assess whether the applicant is a danger to any or all members of the Australian community.

The construction of s 36(1C)(b) that emerges from DMQ20

82    To the extent that there are differences between the construction of s 36(1C)(b) of the Migration Act favoured by Rares J in DMQ20 and the construction favoured by Thomas and Snaden JJ, it is the approach of the plurality that must be followed. In my view, their Honours held 'danger', as used in s 36(1C)(b), to be 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. It would be consistent with their Honours' approach for the decision maker to consider whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates.

83    As to the object of the danger, it is the Australian community conceived of as the community as a whole and/or any person or persons who are part of it.

84    On any view, in assessing these matters, the decision maker may 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. More broadly, the risk of repetition of other past conduct may also be considered.

85    In my respectful view, none of this is inconsistent with the approach that Tamberlin DP took in WKCG. The list of factors which the Deputy President set out in that decision remains useful, provided it is approached, not as a 'test' or a mechanical checklist, but as a guide to assessing the fundamental question of fact.

Application to the present case

86    The judgments in DMQ20 make it straightforward to deal with the appellant SLGS's case in this appeal as to the meaning of 'the Australian community'. Each of the arguments the appellant put to the primary judge and to this Court were rejected by the plurality in DMQ20. The arguments are also inconsistent with the reasoning of Rares J in DMQ20, in so far as they point to some idea that, in order to fail to meet the criterion in s 36(1C)(b), a person must be a danger to 'the Australian community and its people in general, as a whole or at large'. It follows that the Tribunal committed no error when it assessed the danger posed by the appellant 'to one or more members of the Australian community'. It also follows that while at some points the path of reasoning of the primary judge differed from that of the plurality, her Honour committed no error in rejecting the appellant's arguments before her.

87    In relation to the question of what does qualify as 'danger', the Tribunal commenced its examination of the appellant's circumstances by asking whether there was a 'real or significant risk or possibility of harm'. It is true that this formulation was not specifically endorsed by either of the judgments in DMQ20. It is not necessarily inconsistent with either of them, though: it may equate to a 'serious threat of causing substantial, rather than negligible, harm', to use Rares J's words (DMQ20 at [67]), and the judgment of the plurality adopted no form of words.

88    More important than the formulation given by the Tribunal at the outset, however, is the approach that it took to assessing whether the appellant was a danger to the Australian community. It approached it as a question of fact to be determined in all the circumstances of the case. It correctly approached the indicia set out in WKCG as a helpful list of factors that assist in answering the essential question of fact in many cases. Using that as a framework for its inquiry led the Tribunal to examine the question thoroughly and 'by reference to the person's prior conduct and the likelihood that it might be repeated', to adopt the words of Thomas and Snaden JJ in DMQ20 at [116].

89    On appeal, counsel for the appellant made little effort to impugn the Tribunal's approach to the facts of his case. The most he did was to point out that the offences of which the appellant had been convicted were four years in the past at the time of the Tribunal's decision. That was a less than compelling point, given that the appellant had been in prison or detention that entire time, and there was evidence that he had assaulted people while in immigration detention. In any event, the Tribunal specifically considered a submission that the appellant's offending was confined to a three year period, and found that did not mean that he was not still a danger to the community.

90    Also important is the way the Tribunal came to its ultimate conclusions, after its analysis of the facts. It expressly found that, regardless of the approach adopted, the appellant was a danger to the Australian community. That is so even if one were to adopt the stringent test posed by Logan J in DOB18 of a 'present and serious risk'. Thus, while the Tribunal returned there to the formulation 'real or significant risk or possibility of harm', on its assessment of the facts it considered that the appellant was a present and serious risk to one or more members of the Australian community and that this was enough to mean that he did not meet the criterion in s 36(1C)(b) of the Migration Act. The appellant's history of offending and other violent conduct, set out above and thoroughly considered by the Tribunal, meant that this conclusion was entirely open to it and demonstrates no misunderstanding of the law. The appellant has demonstrated no error in the Tribunal's decision.

Conclusion

91    I would dismiss the appeal, with costs.

Associate:

Dated:    7 July 2023

REASONS FOR JUDGMENT

SNADEN J:

92    I have been fortunate to review a draft of the reasons of Jackson J. I am grateful for his Honour's comprehensive summary of the present appeal and I respectfully agree both with the orders that he proposes and with the reasons for which he proposes them.

Associate:

Dated:    7 July 2023