FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541

FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541

The application was dismissed because the Tribunal correctly approached the assessment of danger under s 36(1C)(b), did not equate a low to moderate risk of reoffending with the overall statutory standard of danger, did not impose a requirement that risk be completely removed, and adequately considered the applicant's lapse of time since offending and heroin use, maturation, abstinence, family support, proposed employment and the relationship between heroin use disorder and offending. Its conclusions that there were reasonable grounds to consider the applicant a danger to the Australian community were open on the material before it.

Jurisdiction
Australia
Judgment Date
12 May 2022
Procedural Posture
Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Judgment on Application for Judicial Review
Outcome
Application dismissed.
Legal Topics
['protection Visa' 'refugee Criterion in S 36(2)(a)' 'criterion in S 36(1 C)(b)' 'danger to the Australian Community' 'particularly Serious Crime' 'jurisdictional Error' 'risk of Reoffending' 'heroin Use Disorder']
['migration' 'administrative Law' 'judicial Review'] ['protection Visa' 'refugee Criterion in S 36(2)(a)' 'criterion in S 36(1 C)(b)' 'danger to the Australian Community' 'particularly Serious Crime' 'jurisdictional Error' 'risk of Reoffending' 'heroin Use Disorder']

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Procedural Posture

Application for Judicial Review of Administrative Appeals Tribunal Decision Affirming Refusal of a Protection Visa / Judgment on Application for Judicial Review

Legal Issues

  1. 1 ['Whether the Tribunal erred in assessing whether the applicant was a danger to the Australian community under s 36(1C)(b) of the Migration Act 1958 (Cth).' 'Whether the Tribunal irrationally or illogically treated a low to moderate risk of reoffending as satisfying a high level of risk.' 'Whether the Tribunal applied an incorrect legal principle by requiring risk of reoffending to be completely removed.' 'Whether the Tribunal failed to consider the long lapse of time since the applicant last offended and relapsed into heroin use, and his present stage of life.' "Whether the Tribunal failed to take appropriate consideration of the causal link between the applicant's heroin use and risk of reoffending."]

Ratio Decidendi

The application was dismissed because the Tribunal correctly approached the assessment of danger under s 36(1C)(b), did not equate a low to moderate risk of reoffending with the overall statutory standard of danger, did not impose a requirement that risk be completely removed, and adequately considered the applicant's lapse of time since offending and heroin use, maturation, abstinence, family support, proposed employment and the relationship between heroin use disorder and offending. Its conclusions that there were reasonable grounds to consider the applicant a danger to the Australian community were open on the material before it.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' "The applicant pay the first respondent's costs."]