DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84

The Tribunal did not adopt the wrong test or misconstrue the statutory language in s 36(1C)(b) of the Migration Act. 'A danger to the Australian community' involves a real, significant, and serious risk of substantial harm to one or more members, not limited to harm to the community collectively. On the facts found, the appellant posed such a risk, and the Tribunal and primary judge applied the correct test. The appeal therefore fails.

Jurisdiction
Australia
Judgment Date
30 May 2023
Procedural Posture
Appeal / Judgment on Appeal From Federal Court (single Judge); Appeal From Dismissal of Application for Judicial Review of Tribunal Decision
Outcome
Appeal dismissed
Legal Topics
['protection Visas' 'non Refoulement' 'particularly Serious Crime' 'danger to the Australian Community' 'statutory Interpretation' 'refugees Convention']
['migration Law' 'administrative Law' 'international Law'] ['protection Visas' 'non Refoulement' 'particularly Serious Crime' 'danger to the Australian Community' 'statutory Interpretation' 'refugees Convention']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From Federal Court (single Judge); Appeal From Dismissal of Application for Judicial Review of Tribunal Decision

Legal Issues

  1. 1 ["Whether the Tribunal and primary judge applied the correct test under s 36(1C)(b) of the Migration Act 1958 (Cth) for 'danger to the Australian community'" "Whether 'the Australian community' refers to only the collective or includes individual members" "What threshold of risk or harm constitutes 'a danger' under s 36(1C)(b)"]

Ratio Decidendi

The Tribunal did not adopt the wrong test or misconstrue the statutory language in s 36(1C)(b) of the Migration Act. 'A danger to the Australian community' involves a real, significant, and serious risk of substantial harm to one or more members, not limited to harm to the community collectively. On the facts found, the appellant posed such a risk, and the Tribunal and primary judge applied the correct test. The appeal therefore fails.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs of the appeal, to be assessed in default of agreement in accordance with the Court's Costs Practice Note (gpn-costs)."]