BBRL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4079

BBRL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4079 (8 November 2021)

Division:General Division

File Number:          2020/5153

Re:BBRL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:8 November 2021

Place:Brisbane

The Tribunal sets aside the reviewable decision dated 17 August 2020, and remits the matter to the Respondent for reconsideration with the following directions:

(i)the Applicant satisfies the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth); and

(ii)the Applicant does not engage s 36(2C)(b)(ii) of the Migration Act 1958 (Cth).

............................[sgd].............................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant engages s 36(2C)(b) of the Migration Act 1958 – where Applicant concedes they have been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review set aside

Legislation

Migration Act 1958 (Cth)

Cases

DOB18 and Minister for Home Affairs (2019) 269 FCR 636

HZCP and Minister for Immigration and Border Protection (2019) 273 FCR 121
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17
SZOQQ and Minister for Immigration and Border Protection (2013) 251 CLR 577
SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174

WKCG and Minister for Immigration and Citizenship (2001) 110 ALD 434

Secondary Materials

Transcript of Proceedings, HZCP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] HCATrans 168

DECISION
REASONS FOR DECISION

Procedural history

ISSUE
SUB-ISSUE 1: HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME?
SUB-ISSUE 2: WHETHER THE APPLICANT IS A DANGER TO THE AUSTRALIAN COMMUNITY

The criminal history

Offence on 7 February 2016
Offences on 27/28 March 2016
Offences on 31 March 2016
Offences in juvenile detention on 2 July 2016
Offences in juvenile detention on 13 and 14 November 2016
Length and extent of criminal history

The Applicant’s General Conduct

Aggressive behaviour in the family home
Other violence against the Former Girlfriend
Behaviour in youth detention
Behaviour in immigration detention

Risk of re-offending and prospects of rehabilitation

The expert evidence before the Tribunal
A summary of the expert evidence
The capacity of the Applicant’s family to afford ongoing treatment
Questions for the experts from the Tribunal
The convergence of expert opinion about risk
Questions to the experts by the Respondent’s representative

Conclusion on risk of re-offending

CONCLUSION

DECISION

REASONS FOR DECISION

Senior Member Theodore Tavoularis

8 November 2021

1. BBRL (the “Applicant”) seeks review of a decision made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”) on 17 August 2020 to refuse the Applicant the grant of a Safe Haven Enterprise (Class XE) (subclass 790) visa (the “visa”) pursuant to s 65 of the Migration Act 1958 (Cth) (the “Act”).[1]

   [1]T, 10–35.

2. The Applicant applied for the visa on 2 June 2017.[2] The delegate found the Applicant was a member of the same family unit as a person who is a refugee. According to the delegate, the Applicant therefore satisfied s 36(2)(b) of the Act, which, in essence, means the Applicant is a member of the same family unit as a person who is a refugee.

   [2]T, 10.

3. The basis of the delegate’s refusal was that, in the delegate’s opinion, the Applicant, having been convicted by a final judgment of a particularly serious crime, was a danger to the Australian community. The delegate therefore found that the Applicant failed to meet the necessary criterion contained in s 36(1C)(b) of the Act necessary for the grant of a protection visa.

4. For substantially the same reasons, the delegate found the Applicant is a person who engages s 36(2C)(b)(ii) of the Act.[3]

   [3]It is unclear why this finding was warranted. There are four disjunctive “protection obligations” triggers (my terminology) in the Act, in ss 36(2)(a), (aa), (b) and (c).

   Section 36(2C) of the Act negates the criterion in s 36(2)(aa) of the Act. Section 36(2C) of the Act does not impact the protection obligation trigger in s 36(2)(b). The delegate assessed the Applicant as meeting the protection obligation trigger in s 36(2)(b). It is unclear how s 36(2C) was relevant.

   Procedural history

5. This matter took some time to proceed from the time the Applicant lodged his application for review to finalisation. On 25 August 2020, the Applicant applied for a review of the delegate’s decision by this Tribunal. The Tribunal has jurisdiction under s 500(1)(c) of the Act.

6. The Respondent wished for the Applicant to undertake a psychiatric assessment with a doctor chosen by the Respondent. The Respondent sought a direction from the Tribunal requiring the Applicant to participate in such a medical assessment. I made directions to facilitate that process twice. Once on 25 November 2020, and a second time on 8 December 2020 (because the Applicant declined to participate in an appointment). The Applicant was of the view that such an order was not within the power of the Tribunal and made an application to the Federal Court of Australia seeking to have that direction declared void. The Federal Court application was eventually withdrawn in February 2021. The parties agreed to a new timetable in March 2021. In June 2021, the matter was set down for a final hearing in September 2021.

7. The instant hearing proceeded before me on 9, 10 and 13 September 2021. The Tribunal received oral evidence from four lay witnesses: the Applicant, his Mother, his Father, and his Brother. The Tribunal also received oral evidence from two experts. The Respondent called Mr Patrick Newton. The Applicant called Mr Guy Coffey. They gave their evidence concurrently.

8. The Tribunal received written evidence, which is itemised in the Exhibit Register at Annexure A to these Reasons.

   ISSUE

9. Section 36(1C) of the Act provides:

   “(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.”

10. There is no suggestion the Applicant is a danger to Australia’s security.

11. Therefore, the only issue for the Tribunal is whether the Applicant, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

12. In Australia, it is well-settled that there are two separate sub-questions raised by s 36(1C)(b).[4] First, has the Applicant been convicted by a final judgment of a particularly serious crime? Second, if the first question is answered in the affirmative, does the Applicant represent a danger to the Australian community?

    [4]See SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174 (‘SZOQQ’) [52] (Jagot and Barker JJ, Flick J agreeing at [28]) (set aside on different grounds: SZOQQ and Minister for Immigration and Border Protection (2013) 251 CLR 577); DOB18 and Minister for Home Affairs (2019) 269 FCR 636 (‘DOB18’) [49] (Logan J); WKCG and Minister for Immigration and Citizenship (2001) 110 ALD 434 (‘WKCG’) [29] (Deputy President Tamberlin QC).

13. The first question is interpreted as, essentially, a jurisdictional fact. If there is one serious Australian offence, then the second question – whether the Applicant is a danger to the Australian community – arises for consideration.

14. I will consider each question in turn.

    SUB-ISSUE 1: HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME?

15. For s 36(1C) of the Act, s 5M of the Act says “particularly serious crime” includes both “serious Australian offence” and “serious foreign offence”. Section 36(2C) actually includes a reference to “serious Australian offence” and “serious foreign offence”.

16. There is no suggestion by either party the Applicant has committed an offence overseas, so the meaning of “serious foreign offence” is not relevant.

17. The term “serious Australian offence” is defined in s 5(1) of the Act as follows:

    “serious Australian offence means an offence against a law in force in Australia, where:

    (a)  the offence:

    (i)  involves violence against a person; or

    (ii)  is a serious drug offence; or

    (iii)  involves serious damage to property; or

    (iv)is an offence against section 197A or 197B (offences relating to immigration detention); and

    (b)  the offence is punishable by:

    (i)  imprisonment for life; or

    (ii)  imprisonment for a fixed term of not less than 3 years; or

    (iii)  imprisonment for a maximum term of not less than 3 years.”[5]

    [5]Act, s 5 (definition of “serious Australian offence”).

18. The Applicant accepts that he has committed a “serious Australian offence” on at least one occasion. His counsel wrote that: “the applicant’s convictions for the threat, assault and injuries towards [his former partner] […] for which he was sentenced on 23 December 2016, were clearly “serious Australian offences” within the meaning of s 5(1) of the Act.”[6]

    [6]A1, [8].

19. The sentencing remarks before the Tribunal about what happened are “informal”, which appears to be because they were delivered in the Children’s Court of Victoria. They are sparse on details:

    “I have not prepared a written sentencing decision and I think what I will do is make some sentencing remarks to the bar table and then say something at the end.

    […]

    This case involving [the Applicant] is a tragic case, as everybody would understand. It is tragic because of the shocking assault on [the Applicant’s] girlfriend, the victim in this case, and the ongoing impact upon her of the events through the relationship and, particularly, the stabbing, which has led [the Applicant] to plead guilty to the most serious of all of the charges he is facing, the intentionally cause serious injury charge. It was a horrible, horrible event coming on top of previous assaults and then the deliberate refusal to comply with an intervention order preventing contact between [the Applicant] and his former girlfriend, the victim in this case. It is important obviously to emphasise the impact on the victim – nothing can turn the clock back about all that.”[7]

    [7]T, 488–491.

20. Having considered the oral evidence of the Applicant, as well as the numerous psychological reports, and the police notes, it seems that the following happened. The Applicant was in a volatile relationship with a young female (“Former Girlfriend”) for some time. That relationship had begun to break down, and there is evidence of ongoing domestic violence between them. The Applicant travelled some distance to the house of his Former Girlfriend’s family, and charged through their front door. He then armed himself with a 30cm long kitchen knife (it is not clear whether he brought it with him or acquired it once inside), and stabbed his then-pregnant Former Girlfriend numerous times. She was severely injured, suffered a collapsed lung and was hospitalized. In a further act of cowardice, the Applicant fled on foot. He later lied to the police about what happened.

21. It is readily apparent that this conduct involved violence against a person. The Applicant stabbed a person with a knife. That is enough to satisfy the criterion in sub-paragraph (a)(i) of the definition of serious Australian offence. And the offence of “intentionally cause serious injury” is punishable by a term of imprisonment of 20 years.[8] That is enough to satisfy the criterion in sub-paragraph (b)(iii) of the definition of serious Australian offence.

    [8]Crimes Act 1958 (Vic) s 16.

22. Therefore, the second question in s 36(1C)(b) arises.

    SUB-ISSUE 2: WHETHER THE APPLICANT IS A DANGER TO THE AUSTRALIAN COMMUNITY

23. At the outset, I note that the only question for me is whether the Applicant is a danger to the Australian community. As the Full Court of the Federal Court of Australia explained in SZOQQ, s 36(1C) of the Act does not allow me to engage in a “balancing exercise”. I cannot weigh the consequences for an applicant of, for example, refoulement, against whatever danger an applicant might pose:

    “[…] we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise.”[9]

    [9]SZOQQ [49] (Jagot and Barker JJ), [27] (Flick J, agreeing).

24. In WKCG, Deputy President Tamberlin QC explained that whether a person is a danger to the Australian community is a question of fact and degree.[10]

    [10]See WKCG [25].

25. The learned Deputy President Tamberlin QC explained the task for the Tribunal in answering the second question in s 36(1C)(b) as follows:

    “The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.”

26. In DOB18 v Minister for Home Affairs, Logan J explained that for s 36(1C)(b) to be made  out, the Tribunal has to be satisfied that the applicant “is and will into the indefinite future be a danger, not that the person once was a danger.”[11] Logan J further explained that danger “means present and serious risk.”[12]

    [11]DOB18, 655[78].

    [12]DOB18, 657[83].

27. Beyond the factors identified in WKCG, I must also have regard to all substantial, clearly articulated and relevant contentions propounded by the parties.[13]

    [13]See generally LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 25[31]–27[40] and the cases cited in those paragraphs.

28. I will consider each of the factors in WKCG, then the parties contentions, in turn. For clarity, I will adopt the following formulaic approach in the consideration of the WKCG factors. First, I will consider the Applicant’s criminal history and general conduct. Second, I will consider the Applicant’s risk of re-offending and prospects of rehabilitation.

    The criminal history

29. The learned Deputy President Tamberlin QC explained in WKCG that the following aspects of an applicant’s criminal history are relevant to the Tribunal’s task:

    “Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. […]”[14]

    [14]WKCG [26].

30. The Applicant’s criminal history shows the following convictions:

Court	Court date	Offence	Court Result
Melbourne County Court	14 December 2017	Criminal Damage (Intent Damage/Destroy)	Aggregate 3 Months Youth Justice Centre. Concurrent with sentence now serving
Melbourne County Court	14 December 2017	Burglary
Melbourne County Court	14 December 2017	Affray (Common Law)
Melbourne Childrens Court	23 December 2016	Unlawful assault in company	On each charge: convicted and ordered to be detained in a Youth Justice Centre for  7 days
Melbourne Childrens Court	23 December 2016	Assault in company
Melbourne Childrens Court	23 December 2016	Intentionally cause injury assault with weapon	Convicted and ordered to be detained in a Youth Justice Centre for  6 months. Cumulative order upon other cumulative and part concurrent period of detention imposed.
Melbourne Childrens Court	23 December 2016	Make threat to kill	Convicted and ordered to be detained in a Youth Justice Centre for a period of 3 months.
Melbourne Childrens Court	23 December 2016	Intentionally cause serious injury	Convicted and ordered to be detained in a Youth Justice Centre for a period of 20 months. (Recorded as the “base sentence”)
Melbourne Childrens Court	23 December 2016	Aggravated burglary – person present	Convicted and ordered to be detained in a Youth Justice Centre for a period of 12 months.
Melbourne Childrens Court	23 December 2016	Common law assault	Convicted and ordered to be detained in a Youth Justice Centre for a period of 2 months.
Melbourne Childrens Court	23 December 2016	Persist Contra Family violence NTC/Order	Convicted and ordered to be detained in a Youth Justice Centre for a period of 8 months.

1. The Applicant is currently aged 23 years. Although born in Syria, he has been found to be a stateless Palestinian.[15] He arrived here as an unauthorised maritime arrival on 14 December 2013.[16] On 22 February 2015, the Applicant was released into community detention in Victoria.[17] Upon his release into the community, the Applicant resided with his family who comprised his parents and his four siblings.[18]

   [15]T, 10.

   [16]T, 10.

   [17]T, 165, 227[8], 230[25], 962.

   [18]T, 129.

2. By late 2015, the Applicant’s conduct in the family home was such as to cause his parents to invite police intervention.[19] The Applicant’s conduct culminating in the Melbourne Children’s court issuing an interim intervention order protecting the Applicant’s parents and his three siblings from the consequences of his conduct.[20] There can be no cavilling with the making of this order because the Applicant was present when the order was made.[21]

   [19]T, 231[27].

   [20]T, 492–493.

   [21]T, 493. See also Transcript, 32–34.

   Offence on 7 February 2016

3. The Applicant’s more serious conduct appears to have its roots in his troubled relationship with his Former Girlfriend. His predisposition towards violent means of asserting a position in that relationship manifested as early as 7 February 2016. He threatened to throw a glass at his former girlfriend. He was charged with one count of unlawful assault and, upon pleading guilty to that charge, was convicted and sentenced to two months in a youth justice centre.[22]

   [22]T, 288.

4. The circumstances of this offending were put to the Applicant in cross-examination. The Applicant flatly denied commission of the offence even though he pleaded guilty to the charge. The denial seems to be based on the Applicant pleading guilty “[…] without confirming that charge.”[23]

   [23]See Transcript, 43, lines 22–45.

5. At first blush, a threat to a throw a glass at someone may not seem to be as serious as actually throwing the glass at the person such as to ensure the glass makes contact with that person. Be that as it may, such a threat cannot be dismissed as anything less than a serious offence. It clearly resulted in the Former Girlfriend having serious apprehensions about her safety in the presence of the Applicant. The offending represents an unwarranted imposition of the Applicant’s will upon the Former Girlfriend.

6. It is plain that detention of a child in a youth justice centre is a sentence of last resort. In its SFIC, the Respondent has helpfully laid out the relevant provisions of the Victorian Children, Youth and Families Act 2005 (Vic) (“Vic. CYF Act”) as in force at the time the Applicant was sentenced. Section 360(1) of that legislation provides 10 sentencing options.

1. Further, s 361 of the Vic CYF Act compels a court to refrain from imposing any of the 10 abovementioned sentencing options “[…] unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph of that section”. Only the last of those 10 sentencing options facilitates (1) conviction of the child and (2) detention of the child in a youth justice centre. On any objective analysis, the preceding 9 options are milder sentencing alternatives.

2. Viewed in the context of juvenile offending, I consider that this offence was serious. It was punished by the 10^th and most punitive of the sentencing options contained in s 360(1) of the Vic. CYF Act. There are two discernible aggravating features specific to this offending. They comprise (1) the use of the glass as a weapon; and (2) the making of the threat to a woman.

   Offences on 27/28 March 2016

3. In the late hours of 27 March 2016 and into the early hours of the following day, 28 March, the Applicant assaulted his Former Girlfriend following a domestic disagreement between them.

4. A pre-sentence report in the material summarises the circumstances of the offending.[24] The pre-sentence report says that at 1am on 28 March, the Applicant asked his then-pregnant Former Girlfriend to have sex with him. She declined the request and he reacted in a very adverse way by grabbing her around the throat with both hands and commencing to choke her by forcing his hands into her neck and throat. He then picked up a knife from a nearby coffee table and told his Former Girlfriend: “shut up or I will kill you”. He then punched her to the stomach region numerous times while she was on the ground crying and begging him to stop. The attack caused the Former Girlfriend severe pain to her abdominal and throat areas. She feared she had lost her baby due to the nature and effect of the attack.

   [24]S, 556.

5. In sentencing remarks made by the Melbourne Children’s Court on the date of the Applicant’s sentencing for this offence (23 December 2016), the presiding Magistrate said

   “[…] I am particularly troubled also by Charge 2, the intentionally cause injury charge, which is about [the Applicant] assaulting the [Former Girlfriend] only three days before the events of the 31^st of March. She was pregnant with their child and he was assaulting the victim in ways which may not only have caused harm to the victim but also caused harm, but fortunately not so, to the now born child.”[25]

   [25]T, 287.

6. Following arrest and interview by the police on the following day, 29 March 2016, the Applicant denied assaulting his Former Girlfriend. That denial has been maintained in written material before the Tribunal. In his statement made on 2 October 2018, the Applicant said “[o]n the night of 27 March 2016, I deny that I attacked [the Former Girlfriend] by chocking [sic] her, punching her or threatening her with a knife. [She] was not at my house on 27 March 2016.”[26] The Applicant has propounded the same position of denial at a previous ventilation of another matter at this Tribunal (differently constituted).[27]

   [26]T, 668.

   [27]T, 613.

7. The Applicant maintained his position of denial during his oral evidence in cross-examination. He repeated that his former girlfriend “was not even in my house that night, she was at her family house.”[28] The circumstances of the offence were clearly described and put to him and he said “I promise you I did not do that.”[29] He sought to ground the denial on whether or not the Former Girlfriend was captured by a camera on the street of the Applicant’s residence at the time of the offence. He then configured his evidence on the basis that the police became apologetic and regretful towards him for having troubled him with the matter. He quoted police telling him “Sorry, we will tell her if she do that again, we will charge her with false statement.”[30] He invited the Respondent’s representative and the Tribunal to consult the material “[…] and you can read the police, I’m sure they said that somewhere.”[31] There is nothing in the material to corroborate the Applicant’s stated position about any camera on the street where his residence was then situated. Nor is there any retraction or withdrawal of the matter by the police or any suggestion that they would charge or deal with the Former Girlfriend for making a false statement against him.

   [28]Transcript, 44, lines 17–18.

   [29]Transcript, 44, line 20–21.

   [30]Transcript, 44, line 46; 45, line 1.

   [31]Transcript, 45, lines 1–2.

8. During the hearing, there was an objection initially raised by the Applicant’s representative about the capacity of the Tribunal to entertain questions about the factual circumstances of this offending where those facts are not explicitly recounted in the sentencing remarks. It is well-established that the Tribunal cannot impugn the correctness of an Applicant’s convictions or their essential factual elements.[32] The essence of the objection as I understood it was put on the basis that the Applicant could quite rightly be asked about whether he pleaded guilty to intentionally causing injury and assault with a weapon, but whether or not his motive for committing those offences was due to her refusal of sex should not be allowed to be put to him.

   [32]HZCP and Minister for Immigration and Border Protection (2019) 273 FCR 121. Special leave refused: [2021] HCATrans 168.

9. Ultimately, the objection went nowhere because the Applicant was taken to the abovementioned pre-sentence report which contains the above-described factual circumstances of the offence. At its commencement, the pre-sentence report confirms that it has been prepared for the Applicant’s sentencing hearing – that is, the hearing on 23 December 2016 at the Melbourne Children’s Court, before the Magistrate who sentenced the Applicant.[33]

   [33]Note: the “hearing date” noted on the pre-sentence report is 22 December 2016. However, the sentencing took place on the following day, 23 December 2016. I do not think this slight discrepancy in the date recorded as the hearing date is material.

10. It is plain that the sentencing magistrate was troubled by this offending. As am I. It is obviously very serious offending which had no rational justification and which was perpetrated on a female victim who was pregnant. He struck her while she was virtually defenceless on the ground in front of him, and he continued to strike her even though she asked him to stop. He sought to control any reaction by her that could have raised attention to his conduct by making an appalling threat against her with a knife.

11. The Applicant was convicted of two offences arising from this conduct. First, he was convicted for “intentionally cause injury” pursuant to s 18 of the Crimes Act 1958 (Vic) (“Crimes Act”). That offence carries a maximum penalty of 10 years imprisonment, and it falls within the definition of “serious Australian offence” which is, in and of itself, another indicator of the seriousness of the Applicant’s offending. He was sentenced to custodial period of six months in a youth justice centre.

12. Second, the Applicant was convicted “assault with weapon” pursuant to s 24(2) of the Summary Offences Act 1966 (Vic). This offence carries a maximum term of imprisonment of two years. The Applicant was sentenced to a custodial term of six months in a youth justice centre.

13. In relation to each of the sentences imposed, I repeat and rely on my earlier comments about the structure of the Vic CYF Act and what it has to say about the nature of each of the sentences imposed.[34]

    [34]See [‎36]–[‎38], above.

14. Viewed in the context of juvenile offending, I consider that these two offences were very serious. Each was punished by the 10^th and most punitive of the sentencing options contained in s 360(1) of the Vic. CYF Act. There are two discernible aggravating features particular to this offending. They comprise (1) the use of a knife as a weapon; and (2) the victim was a woman; and (3) the victim was pregnant; and (4) he continued to assault the victim while she was on the ground, and after she repeatedly asked him to stop.

    Offences on 31 March 2016

15. On 29 March 2016, consequent upon the Applicant’s conduct towards the Former Girlfriend on the previous day, a family violence intervention order was made against him. That order was stated to expire on 31 December 2019. The order prohibited the Applicant from contacting the Former Girlfriend, “[…] in any way and not to attend her home address or go within five metres of her.”[35] He was duly served with this order.

    [35]S, 557.

16. The Applicant immediately breached this order with potentially catastrophic consequences. According to the pre-sentence report, the Applicant attended the Former Girlfriend’s home address at 1:20pm on 31 March 2016. He gained entry to those premises, he was armed with a 30cm kitchen knife, and proceeded to very seriously assault the former girlfriend. The circumstances of the assault involved him grabbing her hair and cutting that hair with the knife. The Applicant then stabbed the former girlfriend “multiple times to her chest, shoulders, head and back.”[36] Apparently, the Applicant did not speak during the assault.

    [36]S, 557.

17. The assault was witnessed by the Former Girlfriend’s mother, sister and the sister’s friend. They attempted to separate the Applicant from the Former Girlfriend. He resisted the purported intervention of the witnesses and, in fact, threw a chair at the Former Girlfriend’s sister and attempted to stab that sister while she was trying to protect the Former Girlfriend. After the assault, the Applicant fled the address on foot. He discarded the knife in a nearby front yard.

18. Approximately four hours later at 5:30pm on that day, the Applicant himself contacted local police and was directed to attend the local police station on an immediate basis. Accompanied by his parents, he arrived at the local police station at 6:46pm on the day of the assault. During interview, he denied the incident saying he had not seen the Former Girlfriend for a month.[37] He also said that he still loved her.[38]

    [37]S, 557.

    [38]S, 557.

19. The sentencing magistrate said the following about the circumstances of the offending:

    “This case involving [the Applicant] is a tragic case, as everybody would understand. It is tragic because of the shocking assault on [the Former Girlfriend], the victim in this case, and the ongoing impact upon her of the events through the relationship and, particularly, the stabbing, which has led [the Applicant] to plead guilty to the most serious of all of the charges he is facing, the intentionally cause serious injury charge. It was a horrible, horrible event coming on top of previous assaults and then the deliberate refusal to comply with an intervention order preventing contact between [the Applicant] and his former girlfriend, the victim in this case. It is important obviously to emphasise the impact on the victim – nothing can turn the clock back about all that.”[39]

    [39]T, 286.

20. The sentencing magistrate also took into account the Applicant’s psychological symptomatology impacting upon the offending. I will discuss those symptoms later in these reasons with specific reference to the risk of recidivism. However, for present purposes, the sentencing magistrate said: “None of that, of course, justifies the assaults upon the victim […] and none of it justifies the other behaviours exhibited as elements of the various offences.”[40]

    [40]T, 287.

21. In cross-examination, the Applicant was taken to the circumstances of his offending on 31 March 2016. He accepted that he went to the Former Girlfriend’s home in suburban Melbourne and that he gained access into the subject residence.[41] His oral evidence was not clear about whether or not he accepted grabbing her by the hair and cutting it with a knife.[42] However, he accepted that he stabbed her and that he was very regretful and ashamed of what he did.[43] He accepted that the stabbing was performed on a repeated basis.[44] He did not recall flagging down a female driver after fleeing from the Former Girlfriend’s home, but he did recall that he ended up at a friend’s house in the local area.[45]

    [41]Transcript, 57, lines 22–30.

    [42]Transcript, 57, lines 32–35.

    [43]Transcript, 57, lines 32–35.

    [44]Transcript, 57, lines 37–39.

    [45]See Transcript, 58.

22. He also accepted that there was a lot of blood on the clothes he was wearing and that while at the friend’s house, he took those clothes off and changed into fresh clothes and washed the blood of his hands and the rest of his person. He accepted that he then rang his parents to collect him from the friend’s house. When asked about what he told his parents, he told them that he had stabbed the Former Girlfriend. When the Applicant’s parents collected him from the friend’s house, they took him to the local police station, where he submitted himself to a police interview. In his oral evidence, he said the following initially occurred when he was interviewed by police:

    “MS HOOPER:  And what did you tell the police had happened?

    WITNESS:  I denied it.  I was so scared that time, I couldn’t believe that was me done that.  I was very scared.  Yes.  I will never forgive myself.

    MS HOOPER:  You made up a story to the police that you were assaulted at a railway station earlier that day, that's correct, isn’t it?

    WITNESS:  Yes.”[46]

    [46]Transcript, 59, lines 20–28.

23. When the suite of charges came before the court for sentencing in 2016, the Applicant accepted that he was legally represented and that amongst the initial group of charges proffered against him was a charge of attempted murder. He accepted that approximately nine or 10 months after he was charged with the initial group of charges, a number of charges were dropped, the totality of charges reduced in number, and based upon that re-formulation of charges, he agreed to plead guilty to them. He accepted that the final bundle of charges to which he pleaded guilty did constitute very serious offending:

    “MS HOOPER:  Pleading guilty to the bundle of charges that you were convicted for.  You understood that an outcome of that could be staying in juvenile detention?

    WITNESS:  Yes, of course.  I got sentenced at the Children’s Court.

    MS HOOPER:  Yes.  So you knew it was a very serious matter.

    WITNESS:  Yes, I knew it’s very serious.  That’s why I’m very ashamed of my mistakes, and I will never forgive myself.

    […]

    MS HOOPER:  What I’m putting to you is that you knew when you were pleading guilty to this bundle of charges that they were very serious matters and if you pleaded guilty, you might have to stay in juvenile detention.  And, therefore, it’s not a decision to plead guilty that you made lightly or easily.  It was an important decision.  Do you agree with that?

    WITNESS:  I - I’ve done mistake.  I take responsibility for my actions, and I plead guilty because I did it.  And that’s why I plead guilty, because I did it.  I deserve to be punished for what I’ve done.”[47]

    [47]Transcript, 64, lines 1–10, 39–47.

24. The sentences imposed (on 23 December 2016) for the five convictions resulting from this offending – especially when one bears in mind that they were imposed on an offender then under 18 years of age – make for sombre reading.

25. First, he was convicted for one count of making a threat to kill, pursuant to s 20 of the Crimes Act. That offence carries a maximum penalty of 10 years imprisonment, which is another indicator of the seriousness of this offence. The Applicant was sentenced to a three month custodial term in a youth justice centre.

26. Second, he was convicted for one count of intentionally causing serious injury, pursuant to s 16 of the Crimes Act. This offence carries a maximum penalty of 20 years imprisonment and it also constitutes a “serious Australian offence”, which is another indicator of the seriousness of this offence. He was sentenced to a 20 month custodial term in a youth justice centre.

27. Third, the Applicant was convicted of one count of aggravated burglary (person present) pursuant to ss 76 and 77 of the Crimes Act. Section 76(1)(b) of the Act says that this offence is made out in circumstances where a person enters a building as a trespasser with intent to commit an assault inside those premises, when other people were inside the building, and with knowledge that there were other people in the building.[48] This conviction is punishable by a maximum term of imprisonment of 25 years. The Applicant was sentenced to two months of custodial time at a youth justice centre.

    [48]See S, 439.

28. Fourth, the Applicant was convicted of one count of common law assault, pursuant to s 23 of the Summary Offences Act 1966 (Vic). Such a conviction attracts a maximum penalty of three months imprisonment or 15 penalty units. This was the offending against either the sister of the Former Girlfriend, or the friend of that sister who, together with the Former Girlfriend’s mother witnessed the incident.[49] The Applicant was sentenced to two months imprisonment in a youth justice centre.

    [49]See S, 441. Note: in the charge sheet, the victim of this common law assault does not share the same surname as the Former Girlfriend. At first blush, this may be the friend of the sister of the Former Girlfriend. Alternatively, it may be the Former Girlfriend’s sister with a married name. Either way, nothing material turns on the identity of this victim. I am satisfied it was one of the three witnesses to the incident. 

29. Finally, the Applicant was convicted of “Persist Contra Family Violence NCT/Order” pursuant to s 125A of the Family Violence Prevention Act 2008 (Vic). To be made out, this section of the legislation requires that on at least three occasions within a period of 28 days, the person engaged in conduct which was a contravention of a family violence intervention order.[50] The Applicant was sentenced to eight months of custodial time in a youth justice centre for this offence. A specific aggravating feature of this offence involves the Applicant’s failure to respect the lawful authority represented by duly made orders by a court or other instrument of lawful authority. The breaches were not inadvertent or accidental. The Applicant not only breached the order on multiple occasions, but those occasions could have resulted in a catastrophic outcome for the Former Girlfriend who was one of the named protected persons on the order.

    [50]See Family Violence Protection Act 2008 (Vic) ss 125A, 123.

30. In relation to each of the five sentences imposed for this offending, I repeat and rely on my earlier comments about the structure of the Vic CYF Act and what it has to say about the nature of each of those sentences.[51] Viewed in the context of juvenile offending, I consider that these five offences were very serious. Each was punished by the 10^th and most punitive of the sentencing options contained in s 360(1) of the Vic. CYF Act.

    [51]See [‎36]–[‎38], above.

31. There are a number of discernible aggravating features of the offending arising from these five convictions. They comprise (1) the use of a knife as a weapon; (2) the primary victim (ie, the Former Girlfriend) was a woman; (3) she was pregnant; (4) the offending conduct brought three other people into its immediate orbit comprising the Former Girlfriend’s mother, sister and the sister’s friend; (5) the Applicant unlawfully entered the Former Girlfriend’s residential dwelling to commit the offences; (6) despite having knowledge of an order imposed upon him to specifically curb and prevent this type of very serious conduct, the Applicant ignored that order and committed these very serious offences; and (7) the Applicant initially adopted a position of denial and obfuscation about the incident and suggested that he had been the victim of an assault at a railway station earlier that day.

    Offences in juvenile detention on 2 July 2016

1. While awaiting sentence for his abovementioned offences committed on 7 February, 27/28 March and 31 March 2016, the Applicant was detained at the youth justice centre located at Parkville. On 2 July 2016, the Applicant became involved in an incident at the Parkville facility resulting in respective convictions for (1) unlawful assault; and (2) assault in company.

2. Relevant police documents record that the victim, the Applicant and the Applicant’s co-accused were all in custody at Parkville.[52] On Saturday 2 July 2016, these three individuals were located inside the Remand South Wing of the Parkville facility. The documents record that the victim was seated on a couch and talking on the telephone while the Applicant and his co-accused were playing table tennis. At 7:02PM, the Applicant and his co-accused walked up to the victim. The co-accused struck the victim to the head and face multiple times. The Applicant then pulled the victim from the couch by his leg. This conduct resulted in the intervention of supervising staff who sought to restrain the Applicant and his co-accused.

   [52]S, 420, 3704.

3. Despite these attempts, the Applicant continued to punch and kick the victim to the upper body region before eventually being restrained by the Parkville staff. The police documents record that the victim suffered some swelling to his face as a result of the attack. Further, the incident was captured on CCTV.

4. The circumstances of this offending were put to the Applicant in cross-examination. He accepted the accuracy of the summary in the relevant police documents. He also accepted that he pleaded guilty to both of the offences resulting from the incident. He sought to explain his involvement in this incident on the basis that he was forcibly co-opted to participate as a result of threats made to him by his co-offender. The Applicant said:

   “WITNESS: That person that I was playing table tennis, I was very scared of him.  He was charged with murder, and he was African and - yes.  So he told me, “Look, if you don’t come with me and, like, hit this guy” - he would hit me and he would - he would punch me, and he would, like, hurt me. 

   So I was so scared to say no.  And that’s the problem in the juvenile centre.  If you say no to - they will hurt you somehow.”[53]

   [53]Transcript, 72, lines 31–37.

5. The Applicant was convicted of these offences on 23 December 2016 and for each, was ordered to be detained in a youth justice centre for seven days. In relation to each of the sentences imposed for this offending, I repeat and rely on my earlier comments about the structure of the Vic CYF Act and what it has to say about the nature of each of those sentences.[54]

   [54]See [‎36]–[‎38], above.

6. Viewed in the context of juvenile offending, I consider that these offences were serious. Each was punished by the 10^th and most punitive of the sentencing options contained in s 360(1) of the Vic. CYF Act. The conduct was perpetrated upon a single victim, in circumstances where the victim was isolated and attacked by the Applicant and his co-offender. The Parkville staff sought to initially intervene, and to control the situation. Even after the intervention, the Applicant’s conduct continued. This is demonstrative of him, at that time, not respecting the lawful authority represented by those intervening staff members. 

   Offences in juvenile detention on 13 and 14 November 2016

7. On 13 and 14 November 2016, while still awaiting sentencing for earlier offending, the Applicant participated in certain conduct in the Parkville facility which comprised part of an incident which I will hereafter refer to as the “Parkville Riot”. There are extracts of a 48 page report in the material which appear to have been prepared in relation to the criminal court proceedings against the riot participants.[55] They appear to have come from the records of the Melbourne Children’s Court.

   [55]See S, 388–394.

8. At the time of the Parkville Riot, the Applicant was housed in the Southbank Unit of Parkville with nine other clients.[56] The relevant report in the material records that other clients from another part of the facility (Oakview Unit) had escaped from that unit and had caused staff to retreat apparently in fear of their safety. In the absence of any control over their conduct, the escaping clients from the Oakview Unit made their way across to the South Bank unit. The relevant report then says that these clients from the Oakview Unit then forced their way into the South Bank unit via the roof cavity. They then commenced damaging air conditioning facilities located in the ceilings by kicking in the air conditioning vents such as to enable clients from the South Bank unit to breach their respective secure cells.

   [56]The inmates of Parkville are referred to in the material as “clients”.

9. Upon breaching their secure cells the clients from the South Bank unit participated in conduct crudely described in the report as “affray/criminal damage”. The report discloses that the Applicant then accessed the roof of the South Bank Unit which allowed him and his co-clients to access surrounding areas and buildings of the Parkville facility. The report further records that “[the Applicant] in company with other clients engaged in riotous behaviour.”

10. The report discloses that the incident then gathered momentum, causing staff at the Parkville facility to retreat into the Control Centre. They did so in fear of their own safety and because the rioting clients were arming themselves with improvised weapons. By that stage of the riots, the report discloses that the rioting clients had achieved “free reign within the precinct grounds”.

11. In terms of the Applicant’s involvement in the incident, the report says that his total involvement is not known because the CCTV system at the facility was, for a time, disabled as a result of either being destroyed by the rioting clients or as a result of the facility manager’s deliberate cessation of power supply to the affected building complexes due to fear that those rioting clients would be exposed to dangerous live electricity cords as a result of the damage they had caused.

12. In terms of recorded forensic evidence detailing the Applicant’s ascertainable involvement in this incident, the report discloses the following:

    “Forensic Evidence:

    […]

    CCTV footage captured [the Applicant] undertaking the following in the Southbank Unit and Program Centre:

    • Kicking external glass entry door of Program Centre in company with other clients

    • Damaging glass windows in Waiting Room area of Program Centre by throwing a fire extinguisher against the glass

    • Hitting a glass picture frame in the Waiting area of Program Centre with a fire extinguisher (unknown damage)

    • Attempting to damage perplex windows in Southbank Unit by throwing steel object into windows

    • Entering restricted staff offices in the Southbank and Program Centre where he causes damage”[57]

    [57]S, 393.

13. The circumstances of the Parkville Riot were put to the Applicant in cross-examination. He accepted that he took part in the incident. The five dot-points summarising what was recorded on the TV footage were specifically put to the Applicant. He agreed that he did those things. During cross-examination, he sought to explain what was behind him doing those things.

14. He told the hearing (before me) that he was asleep in his cell that he shared with a cellmate. Upon hearing a “really big bang” he woke up and noticed a large hole in the ceiling of his cell. He noticed “four or six prisoners covering their face and holding sticks and weapons and trying to – saying, ‘come, come, come’.”[58] Upon seeing the other rioters through the cavity in the ceiling, the Applicant said he became shocked and “really scared”.[59] He thought the rioters “looked very scary”.[60] This apparent fear was said to manifest in a threat to him which he explained in his oral evidence thus:

    “WITNESS: So I was so scared.  And I said, “No.”  And I said, “No.”  But if I - and then they said, “If you don’t join us, we’ll come down and we grab you.”  So I had no choice but to go with them.  Then after that, with them, they told me, “Go do this.  Go do this.”  And if I do - there was no officers.  There was no guards.  They all evacuated.  So there’s no one - no one can guarantee my safety at that time. 

    So if I didn’t do what they said to do, I would have been - I think, in my perspective, I would have been really, really bad hurt.”[61]

    [58]Transcript, 76, lines 9–11.

    [59]Transcript, 76, line 12.

    [60]Transcript, 76, line 16.

    [61]Transcript, 76, lines 17–24.

15. The Applicant was fearful of being rendered a “dog” by fellow inmates/rioters if he did not become involved in the riotous conduct.[62] Consistent with this position of being forcibly co-opted into the incident, he told the hearing that his fellow rioters “gave me a stick and things.”[63] The Applicant noted that none of this riotous conduct was being regulated by any officers or guards and he said in his evidence that there were “[…] no officers or guards to run to to [sic] go get help or go surrender. As soon as I had an opportunity to surrender my self to the police, I ran straight away.”[64] The Applicant said that he was fearful that he “[…] could have been hurt really badly.”[65]

    [62]See Transcript, 76.

    [63]Transcript, 76, line 31.

    [64]Transcript, 76, lines 32–35.

    [65]Transcript, 76, lines 42–43.

16. As best as I understood his explanation for becoming involved in the incident, the Applicant felt compelled to do so in order to avoid later punitive treatment resulting from any refusal by him to participate:

    “WITNESS: They brought me out, and it was a horrible moment where I had no choice but to join them, otherwise I would have been hurt really badly.  And I know how they hurt people.  I’ve been jumped before by them.  I’ve been hitting by them.  And you can read my history from Parkville.  I’ve been a victim a lot of time. 

    And it was a scary moment.  I’ve been really - I was forced to do it, and that’s what I had to explain to the Magistrate as well when I put my appeal.”[66]

    [66]Transcript, 76, lines 45–47; 77, lines 1–5.

17. The Respondent’s representative sought to test the Applicant’s evidence about the extent of his participation in the incident prior to offering himself for surrender. It was suggested to him that he participated in the riots for around four to five hours before surrendering to police. He responded with:

    “WITNESS: I was looking somewhere - I was looking somewhere to surrender.  There was nowhere to surrender.  They were - firstly, there was no police for at least two, three hours.  There was nowhere to surrender.”[67]

    [67]Transcript, 77, lines 18–19.

18. The Respondent’s representative further suggested that there were in fact constant negotiations between the authorities and the clients to end the riot. In response, the Applicant said that:

    “WITNESS:  Is there - there was, like - there was, like, a war there.  There was no negotiation.  They were - the prisoners had radios talking to them.  Negotiation - you know what the negotiation is?  They said, “Bring us pizza.  Bring us smoke.  And if you don’t, we don’t surrender.”  That’s what the negotiations.  I couldn’t leave the group I’m stuck with.  They were with me, like, the whole time.  As soon as I had a chance to surrender, I handed myself straight away.”[68]

    [68]Transcript, 77, lines 38–44.

19. The Respondent’s representative further suggested the Applicant was not the first of the rioters to surrender. The Applicant responded:

    “WITNESS:  I think I was the first one, because I didn’t see - from my perspective, I didn’t see anyone surrender before me, and that’s what they call me a dog.  After I went to Malmsbury, I was punched, I was hit because of them when they got transferred also.  They said, “Oh, he (indistinct) us.  He snitch or he surrender.  He’s this” and I was in my room all the time.  So, yes, it’s a horrible moment I was in.”[69]

    [69]Transcript, 78, line 1–6.

20. The Applicant’s conduct in this incident resulted in him being charged with three offences: criminal damage; burglary; and common law affray. The abovementioned report further discloses that “[t]he accused participated in damage to property to the value of $82,432.00.” At first instance (on 29 June 2017),[70] the Applicant was sentenced as follows:

    ·criminal damage (intent damage/destroy): convicted and detained for a period of 6 months;

    ·burglary: convicted and detained for a period of 6 months;

    ·affray (common law): convicted and detained for a period of 12 months.

    [70]See S, 3726.

21. When dealt with at first instance, the Applicant appeared in the Melbourne Magistrates Court for sentencing. He was initially sentenced to two sentences of six months each, with a partial concurrent period of four months; and a base sentence of 12 months in a youth justice centre.

22. The Applicant appealed those sentences. On 14 December 2017, His Honour Judge Dean of the County Court of Victoria pronounced the following sentencing regime in substitution of that imposed on the Applicant at first instance:

    “On the three charges, the appellant is convicted and sentenced to a term of Youth Justice of three months. I declare that he has served 23 days by way of pre-sentence detention. But for his plea of guilty I would have sentenced him to the total effective term of Youth Justice detention of six months.”[71]

    [71]T, 483.

23. While it can be accepted that the sentences imposed for these three convictions may not be of an extent such as to objectively demonstrate a high level of seriousness of the offending conduct, the offending can be safely categorised as very serious for other self-evident reasons. First, the Applicant’s participation in the Parkville Riot is a clear demonstration of his refusal to accept the lawful authority represented by those charged with responsibility for the safe and regular operation of that facility.

24. Second, there is questionable credibility around his story about being forcibly co-opted into the incident. He remained an active participant in the disruption for a number of hours.

25. Third, while the Applicant says he “had no choice but to join [the rioters]”, the reality is that upon joining them, he participated in damage to property of approximately $83,000.[72]  

    [72]See R3, which shows that the charge sheet the Applicant was convicted on included an amount of “$82,432.00”.

26. Fourth, the Applicant contributed to a situation that could have resulted in serious injury to himself, the other participants in the riot, and the managers/administrators of the facility. He is recorded on CCTV footage as throwing some kind of steel object into windows. As referred to in the subject report, the property damage wrought by the rioters had the potential to expose them to electrocution. 

    Length and extent of criminal history

27. The Applicant has a less than exemplary criminal history for a person barely in his mid-20s. That said, the totality of his offending arises from five incidents that occurred within a one year period – 2016. Those five incidents occurred on 7 February, 27/28 March, 31 March, 2 July and 13–14 November. For reasons that follow, I am of the view that the remainder of the Applicant’s offending or other contrarian conduct is unremarkable.

28. He has convictions for 12 offences deriving from the abovementioned five incidents. Perhaps the most concerning aspect of his criminal history is that it lacks the more familiar trajectory of low-level misdemeanour-type offences at the beginning with a crescendo towards more serious offending in its latter phases. This Applicant’s offending pattern is very serious from its outset. It betrays an almost unfettered predisposition towards violence or threats of violence to establish his position in a given situation.

29. The further concerning element of his offending is that it not only lacks restraint in difficult situations when he is in the community, he seems to have readily defaulted to positions of threatened or actual violence within the closed confines of youth detention. The further resulting complication is that this predisposition must lead to a conclusion that he has lacked a measure of respect for lawful authority represented by those who are charged with responsibility for ensuring both his safety and the safety of his fellow inmates in that closed environment.

    The Applicant’s General Conduct

30. The Respondent points to a number of aspects of the Applicant’s general conduct which, it is contended, indicate the Applicant is a danger to the Australian community. These incidents include: (1) aggressive behaviour in the family home; (2) violence against the Former Girlfriend which did not result in convictions; (3) miscellaneous behaviour in youth detention; and (4) miscellaneous behaviour in immigration detention.

    Aggressive behaviour in the family home

31. This additional conduct derives from incidents occurring specifically during the period 2015–2016. At that time, the Applicant was exhibiting aggressive and difficult behaviour while residing at his family home. There is evidence that as a result of such conduct, he caused damage to the family’s residential dwelling and, in particular, that he broke a window. It is contended by the Respondent that the Tribunal should find that his conduct during these incidents was more extreme than the Applicant, his parents, or his brother made out in their oral evidence.

32. The basis of the contention is that the evidence of the Applicant and his family members should be found to be lacking in credibility when benchmarked against certain documents in the material. For example, with reference to the damage the Applicant caused to the family home, the Respondent has referred to the observations of a GP dating from 5 March 2016.[73] There, the doctor speaks of: “Father called police twice in last few weeks to get help as [the Applicant] had uninhibited behaviour (damaged furniture, broke the window) […]”[74]

    [73]T, 1563.

    [74]T, 1563.

33. The Respondent refers to a further incident occurring on 4 November 2015 involving apparently aggressive behaviour exhibited by the Applicant towards his family in a domestic context. The relevant police record notes that the Applicant became irate with other members of his family and made threats about damaging the family car. Upon being locked out of gaining access to the garage where the car was situated, the police summary indicates that he picked up a stick and started striking the locked garage door with that stick “causing some damage” to the garage door. Upon becoming frustrated at being locked out of the garage, and thus denied access to the car, the police narrative then records the Applicant used the stick he was holding “[…] and started hitting the glass window of the house.” When his parents attempted to becalm him, he apparently picked up a cup and threw it at the glass window causing that window to smash.

34. The police narrative further records that the Applicant’s family retreated into the dwelling and locked themselves in there “fearing for their safety” and, on that basis, they contacted police. Upon arriving at the address, police found the Applicant’s family in a state of distress. The concluding portion of the police narrative notes that “[the Applicant’s family] do not want [the Applicant] to live with them anymore.”[75]

    [75]S, 3709.

35. The Respondent’s contention then evolves into one of requesting that the Tribunal make adverse findings about the credit allocable to the evidence of the Applicant’s parents and his brother when they sought to re-cast this incident in their evidence. The parents, for example, would not agree with the version of the incident appearing in the police narrative and, instead, attributed the circumstances of the incident to their then limited English which caused them to not be understood that what they were really after was not so much police intervention to restrain the Applicant’s conduct but intervention more in the realm of hospitalisation for the Applicant. Similarly, the Applicant said that whatever damage was caused to the window to the dwelling was not the result of the Applicant striking it but occurred because children were kicking a ball in the yard adjacent to the window.

1. A similar counterpoint, says the Respondent, to the evidence of the Applicant’s family is to be found in the report of the clinical psychologist, Mr Guy Coffey, who, in one of his early reports from 2016 recorded the following observations:

   “[The Applicant’s] mood was volatile and he directed his disaffection at his parents. He argued about school attendance; money and going out at night after the curfew. When angry, he broke property and the parents took out intervention orders in October and November 2015 which were subsequently withdrawn.”[76]

   [76]T, 244.

2. I think the Respondent’s following contention is well made: the note of the GP, the police record, and Mr Coffey’s observation in his 2016 report are each more closer in time to the actual events in question occurring at the family home than the hearing. In those circumstances, contends the Respondent, the contemporaneous version of events in the documents should be preferred to the explanations of the incident by the Applicant and his family.

3. The Tribunal is urged to take note of the configuration of the Applicant’s evidence where he denied any such behaviour on the basis that he either did not recall it, or that he otherwise blatantly denied it. The Respondent contends that the Applicant’s predisposition towards seriously minimising or totally denying the full extent of his behaviour is adverse to his credit and that it constitutes conduct informative of his overall risk of recidivism. I think there is merit and weight to that contention.

   Other violence against the Former Girlfriend

4. There is an extant factual dispute between the parties about the extent of violence in the relationship between the Applicant and the Former Girlfriend prior to the stabbing incident on 31 March 2016.[77] Mr Coffey recorded the Applicant telling him that “when they argued they would be physically aggressive to one another.”[78] Mr Coffey also recorded the Applicant telling him that he would be able to teach the Former Girlfriend a lesson “by hitting her”. Mr Coffey further noted that the Applicant said the first time he slapped his Former Girlfriend he “[…] felt temporarily relieved that he was ‘in control … I felt like a man”.[79]

   [77]See [‎51]–[‎59], above.

   [78]T, 234[48]–235[48].

   [79]T, 237[63].

5. During cross-examination, the Applicant was asked whether he had physically hit the former girlfriend on any occasion before 31 March 2016. He responded with:

   “WITNESS:  The incidents that happened on 31 March, that’s when the incident happened.  That’s when I stabbed [Former Girlfriend], but before that, there was no physical problem.”[80]

   [80]Transcript, 66, lines 41–43.

6. In the final analysis, I think it can be safely found that there had been some level of physicality between the Applicant and the Former Girlfriend prior to the stabbing incident on 31 March 2016. The Applicant avoided any acceptance of a suggestion that he deliberately or wantonly administered physical redress upon the Former Girlfriend. Instead, he sought to configure his evidence on the basis of him reacting towards her in a physical way only for the purposes of protecting himself:

   “WITNESS:  It might be – it might be an assault for her, but I had to push her to – to – like she’s stabbing me with a pen, and I’m – obviously I had the reaction there to protect myself.  So I don’t remember the full story because there was a lot of – going on, but this – I pushed her, that’s clearly like anyone would have reaction and anyone would react in a – in the way that it was being hurt, and then you’re just trying to move the other person away.  So yes, that’s my answer.”[81]

   [81]Transcript, 68, lines 37–44.

7. The clinical and forensic psychologist engaged by the Respondent, Mr Patrick Newton, recorded similar observations to Mr Coffey. In his report of 12 May 2021, Mr Newton made these observations.

   “On [the Applicant’s] report, they argued frequently: with the arguments regularly reaching the level of physical violence which he said was mutual.

   The situation between them became more problematic in January 2016 when [the Former Girlfriend] fell pregnant. On [her] account the behavioural problems escalated with [the Applicant] becoming increasingly controlling. […] [The Applicant] acknowledged that he had punched and hit [Former Girlfriend] in this period.”[82]

   [82]R4, 8[24]–[25].

8. The safe conclusion about physical (and non-physical) family violence between the Applicant and his Former Girlfriend prior to the stabbing incident in March 2016 must surely be that (1) there had been such violence; but that (2) the extent of it remains undetermined. On the one hand, the Applicant’s credit could be attacked on the basis of his denial of any violence in the relationship prior to 31 March 2016. Yet on the other hand, as I have sought to demonstrate from his transcribed evidence in cross-examination, he accepted there had been some level of physicality in their relationship. His attempt to ameliorate this issue by asserting he was merely protecting himself from her aggressive behaviour is not convincing.

9. Not much turns on this for two reasons. First, it appears the clinicians had ample evidence about this conduct, including evidence from the Applicant. Second, as I will detail later, the clinicians said that denial of these incidents would not affect their opinion about the level of his recidivist risk.[83]

   [83]See [‎152]–[‎156], below.

   Behaviour in youth detention

10. There are numerous instances of additional problematic behaviour by the Applicant in the closed confines of youth detention and immigration detention. I will address each incident put to the Applicant in cross-examination:

    ·In June 2016 at Parkville: the material includes an individual behaviour management plan that details certain conduct by the Applicant. It is said that on that 15 June 2016, assaulted a young person in the company of another peer at the YMCA.

    ·On the following day (16 June) he assaulted a staff member. The assault included punching the staff member in the head multiple times.

    This conduct was put to the Applicant in cross-examination. He said the following:

    “WITNESS:  (Indistinct) no.  I think that’s incorrect, I’ve never punched staff in juvenile and if I did I’ll be charged and I’ve never been charged with that.  So, I just want to know more about this because first time I’m reading it.”[84]

    [84]Transcript, 88, lines 40–42.

    ·In or about June 2016 at Parkville: the Applicant received a warning for certain conduct, described in the relevant document thus:[85] the Applicant was told about a concerning pattern in his behaviour towards women in the remand unit. He was warned about his use of derogatory and sexually explicit language to degrade and insult female staff.

    [85]S, 3166.

    The content of this document was put to the Applicant in cross-examination. He accepted that he had used derogatory and sexually-explicit language towards female staff.

    ·October–November 2016 at Parkville: there is a ‘Separation Safety Management Plan’ in the material.[86] It records the following conduct by the Applicant:

    [86]S, 2728–2729.

    o23 October 2016: the Applicant made threats towards staff, particularly female staff, and indicated an intention to assault them.

    oMonday 24 October 2016: the Applicant consistently verbally abused staff and threatened to assault a specific female staff member. This conducted involved him saying he was going to “kick the shit out of her on Wednesday”.

    oThursday 27 October 2016: the Applicant deliberately activated the sprinkler in his bedroom. He was moved to another bedroom. He purported to use the facility’s intercom system to verbally abuse female staff. He called them derogatory names such as “sluts”. He faked having a seizure. His conduct resulted in the calling of a “code blue” by the facility staff. The Respondent eventually got up off the floor from his fake seizure and laughed at the situation.

    o28 October 2016: the Applicant continued to abuse staff, threaten self harm, and engage in property damage. He returned to his bedroom, broke the sink, and caused the resulting water flow to flood his bedroom and the hallway. He told the facility’s staff that he had an improvised plastic weapon and continued to abuse the staff, directing them towards the water and saying “wipe it you fucking bitch, that’s your job” and “you fucking Arab dog, your mum and sister are sluts.”[87]

    [87]S, 2729.

    o2 November 2016: upon being provided with a mop and broom to clean his bedroom, the Applicant proceeded to hit the ceiling of his room using the mop and broom to cause damage to the overhead roof space. Upon causing this damage, he told supervising staff that “[t]his is how I’m going to get out of this unit.” He also set the sprinkler off. Further staff were required to extract him from his bedroom to prevent him accessing the newly created cavity in the roof space. He was transferred to different room.[88]

    [88]S, 2728.

    Each of these incidents were put to the Applicant. With reference to the incidents on 23 and 24 October 2016, he initially said he did not remember the incidents but agreed that during his time in juvenile detention, he did make threats to staff members. He said “[…] I admit it, yes, and that was wrong.”[89] With reference to the incident on 27 October, the Applicant attributed this conduct to, again, not feeling safe. He agreed that he did use derogatory and abusive language and that he should not have done so. He said after the incident “I had a meeting with them and I said I’m sorry for saying that.”[90] With reference to the incident on 28 October 2016, he agreed that he said “something bad to a  male staff member”  but he denied making the comment “your mum and sister are sluts.”[91] He attributed his conduct on 2 November 2016 to not feeling safe in the unit allocated to him. He said “I told them, I’m not feeling safe if you could please move me to another unit because of the things that happen to me and I don’t feel safe.”[92]

    [89]Transcript, 87, line 16.

    [90]Transcript, 86, lines 42–45.

    [91]Transcript, 86, lines 30–35.

    [92]Transcript, 86, lines 20–22.

    ·9 January 2017 at Parkville: the relevant client incident report form discloses that the Applicant had been involved in alleged inappropriate touching of his roommate. The allegation from the cellmate was that the Applicant touched him inappropriately on several occasions. The cellmate alleged that this behaviour involved the Applicant touching the complainant’s penis and buttocks. The complainant further alleged the Applicant had jumped on top of him, mimicking sexual actions, and that the Applicant had made comments of a sexual nature on more than one occasion.[93]

    [93]S, 2431–2432.

    Any suggestion of such conduct was flatly denied by the Applicant in cross-examination. He said “if you can see it, it’s allegation, it’s not like – I didn’t do it. I would never touch, I hate that things. It happened to me. It’s allegation […] and I’m never touching anyone inappropriately.”[94]

    [94]Transcript, 85, lines 32–33.

    ·18 January 2017 at Parkville: the relevant case note records that just prior to evening lockdown, the Applicant was observed talking to other inmates regarding them becoming involved in an assault against a specific inmate. During this discussion, the Applicant was heard to comment “[l]et’s assault the staff Fucking Dogs”, laughing as he said it. Other inmates were resistant to the idea saying “no, that’s not funny […]”. When the matter came to the attention of Parkville staff, the Applicant was told to desist from making these kinds of comments or he would be compelled to go straight to his room. He responded with “make me fucking dogs” towards the Parkville staff. This conduct resulted in all of the inmates in the lounge area being placed into lockdown.[95]

    [95]S, 2405.

    In cross-examination, the Applicant denied this conduct. He specifically denied any suggestion about participating in an assault against the Parkville staff. To the extent other inmates may have recalled the incident, the Applicant said if they did recall it, it wasn’t him who made the suggestion about assaulting the staff. He insisted with “I promise you, I didn’t say that, the other prisoners say that.”[96]

    [96]Transcript, 84, line 40; See also Transcript, 84, lines 30–38.

    ·February–March 2017 at Parkville: the relevant case note is dated 6 March 2017, but seeks to summarise conduct observed on earlier dates in March.[97] It appears to be a copy of an email sent to two people who respectively have the titles “Cultural Worker” and “Practice Leader”. The general observation in the case note was that the Applicant’s behaviour “is escalating in frequency and severity.” The author noted that “I am hoping you can provide some thought [sic] of therapeutic intervention where we can address this behaviour.” The behaviour was recorded as follows:

    [97]See S, 2156–2157.

    oOn 27 February 2017, the Applicant was recorded to have verbally abused a Parkville staff member resulting from a request that he allow access to his room.

    oOn 4 March 2017, the Applicant was recorded as having had “a very poor day today” as a result of difficulties he perceived in obtaining a laptop computer for his room.

    oOn 5 March 2017, the Applicant was directed to cease “playfighting” with other inmates. This resulted in him delivering a “tirade of abuse” at the Parkville staff member. He was told that if his behaviour continued, his TV time would be reduced, to which the Applicant responded “take it you fucking dog”, “you’re a fucking rat”, and “you’re not the fucking boss you cunt” among other words of abuse. The Applicant’s conduct caused Parkville staff to declare a “code black” with the Applicant taken to “ISR” for one hour.

    oAlso on 5 March 2017, upon being released from ISR, the Applicant was directed to return to his room. En-route to his room, “he banged on the supervisor’s door and asked if [they] would come out”. The Applicant then called the supervisor “a fucking slut and appeared to be fronting up”. Additional staff were required to escort the Applicant back to his room.

    When the content of this case note was put to the Applicant in cross-examination, he said “[…] there is a lot of things that is untrue there. […] There’s most of this incidents I really don’t remember, so I really don’t have an answer for it. […]”[98]

    ·3 May 2017 at Parkville: the Applicant was told he could not immediately use the gym. He reacted in an aggressive and threatening manner towards the Parkville staff member, saying “let me go to gym you fucking fat cunt. I’m allowed to go to gym.” His behaviour escalated such that he tipped a nearby table tennis table in the direction of the Parkville staff member. Upon a request that he cease and desist from such conduct, the Applicant proceeded to violently and repeatedly kick the laundry door, threatening to “fucking smash the place” if he were not allowed to attend the gym. This conduct resulted in a “No Movements” prohibition being placed upon the Applicant. [99]

    In cross-examination, the Applicant readily accepted that the incident occurred.[100] He attributed his conduct to personal animosity between him and the relevant Parkville staff member. The Applicant said “yes, it did happen, I admit it, but this [staff member] had very, very, very hate on me.”[101]

    ·9 January 2018 at Malmsbury: the relevant case note records that the Applicant was observed making an attempt to strangle himself with a torn up T-shirt. He was also observed attempting to flood his room using his torn up clothing to block the drains. He was observed smearing food all over his room and spraying the lights and television with water. He was also observed smashing his TV “many times”.[102]

    In cross-examination, the Applicant agreed the incident occurred as recorded in the case note. He again attributed his conduct to not feeling safe in the facility. He told the hearing “I was trying to hang myself because I wanted to end my life, because I was going through a lot and I keep saying it […] I was suffering in there and the guards and think they not helping me.”[103]

    ·9 January 2018 at Malmsbury: the Applicant was involved in exhibiting aggressive behaviour towards Malmsbury staff and taking an implement from the kitchen. The incident derived from a request that he terminate a private phone call he was on because lockdown had commenced at 5pm and the Applicant was still on the phone at 5:08pm. The Applicant smashed the phone in frustration, causing shattered pieces to fly off the phone. When staff attempted to guide the Applicant towards his cell, he was observed to reach into his shorts and pull out a long plastic implement with a sharp edge. He waved and pushed that plastic implement towards staff while simultaneously saying “I’m going to kill you, I’m going to get people to fuck you up, get the fuck away.”[104]

    When this incident was put to the Applicant in cross-examination, he said “Yes, it happened. Yes.”[105]

    ·10 January 2018 at Malmsbury: the Applicant became involved in a dispute with one of the Malmsbury staff members about an apparent refusal of a condiment (tomato sauce) he requested with his food. The Applicant became verbally abusive and threatening to the staff member saying these things: “fucking piece of dog shit”; “I’ll stab you when I get out of here”.[106] This conduct resulted in the Applicant being removed from the unit and isolated into a holding cell.

    In cross-examination, the Applicant recalled the incident but did not recall the threatening words to the Malmsbury staff member. He configured his evidence on the basis of having to act in an aggressive way because he felt “very unsafe” while in youth detention.

    [98]Transcript, 84, lines 7–8, 15–16.

    [99]S, 1992.

    [100]Transcript, 82, line 45.

    [101]Transcript, 83, lines 12–13.

    [102]T, 1566.

    [103]Transcript, 81, lines 23–27.

    [104]S, 1567.

    [105]Transcript, 82, line 27.

    [106]S, 1544.

11. To my mind, the Applicant’s evidence about the totality of his other conduct while in youth detention can best be gleaned from the following portion of his oral evidence given in cross-examination. While he may have purported to deny one aspect of it, he seemed to accept another.

    “MS HOOPER:  Your behaviour when you were in juvenile detention was often very aggressive, wasn’t it?

    WITNESS:  Sorry, the environment made me aggressive.

    MS HOOPER:  You were very aggressive and you often verbally abused the staff, didn’t you?

    WITNESS:  I don’t remember everything, but I was abusive, yes, I admit it and I am sorry, I shouldn’t reacted that way.  I was in - I wasn’t think straight.  But the environment did not help me mentally.  It did not help me, it did not help my behaviour to become better.  I’m supposed to get better there, not to get worse.

    MS HOOPER:  You damaged property when you were in juvenile detention, didn’t you?

    WITNESS:  Sorry, the riot, that’s what - when I explained it to you and the Member (indistinct).

    MS HOOPER:  Other than the riot, you also damaged property in the centres, didn’t you?  For instance, in your room?

    WITNESS:  The sink, yes.  Yes.  Just to get out of the place, because they wouldn’t move me and I asked them nicely and I wasn’t feeling safe and I was not in my right headspace.  That’s why my behaviour was not good.”[107]

    [107]Transcript, 89, lines 13–38.

    Behaviour in immigration detention

12. The Applicant’s behaviour in immigration detention was, in many respects, consistent with his behaviour in youth detention. There were a number of records from the Respondent’s department, which were collected at earlier stages in the lengthy history of the Applicant’s SHEV application.[108] The Applicant has had an opportunity to respond to these records, with the assistance of lawyers, in the past.[109] He accepted he has had an opportunity to respond to most of the detention records at the hearing.[110]

    [108]See T, 2016–2068.

    [109]T, 2136–2141.

    [110]See Transcript, 91.

1. On this issue of cultural differences in a future relationship giving rise to a stressor(s) adversely impacting the Applicant’s recidivist profile, Mr Newton seemed to be of one mind with Mr Coffey. Mr Newton thought the Applicant’s index offending against the Former Girlfriend must be viewed in the context of his then mid-adolescence and the circumstances in which he found himself at that time:

   “MR COFFEY: I think there is a very strong bond [between the Applicant and his family], certainly when the applicant speaks to me about his family or spoke to me about his family, he spoke with evident affection and a clear, emotional bond to them.

   And a clear degree of respect for them now.  That wasn’t evident when he was a young adolescent or perhaps mid-adolescent, 16, 17 years old at the time of the offending.  He was clearly going through his own problems and as Mr Coffey has said in his response, the family was also going through a deeply problematic period in its life, having multiple strains.  Not just in terms of the refugee experience but also in terms of the stage of its development it was going through with and infant child and other demands on its plate.”[151]

   [151]Transcript, 201, lines 12–23.

2. Speaking in a more contemporary context, Mr Newton spoke of the extent to which the Applicant would now be able to manage a problematic relationship with a partner upon a return to the community. Mr Newton thought the time the Applicant has invested in treatments – particularly with reference to relationship counselling – will stand him in good stead to deal with a conflicted relationship and to emerge form it without the commission of further very serious offences:

   “MR NEWTON: Going perhaps to your first question around the choice of partners and how will we cope in another relationship that becomes conflicted, I think you’re correct to say that any 23 year old is going to have needs for affection, for companionship and for – to a certain extent, romantic connection.  That’s going to be there and that would be the case for the applicant as well as for any 23 year old.

   I think it is significant that he has invested so much time and proactively.  Like Mr Coffey, I see many people in detention centre environments.  I see some who do initiate these sorts of connections with others on the outside but it’s a rarity rather than the normative experience.  And even among those few that do initiate connections with relationship counsellors or anger management treatment of some sort, it’s rare to see one who is described as thirsty for knowledge by the counsellor or to see someone who is so cogently in his counselling – in his discussions with me, is able to talk about what he’s learned through his relationship counselling.

   So again – and even if I take you outside the detention centre environment to young 23 year old, interpersonally violent offenders that I’ve seen – and there would be hundreds of these in the last five years or so.  It’s usually me saying, “I think you should do an anger management program.  I think you would benefit from some counselling.  I would really like to see you address the way you think about your relationships with women.  You seem to have an issue about control.  It seems important for you that she does what you tell her to.”  And so forth.  There’s many things I’ll point but it’s very rare that they’ll be able to talk about those things meaningfully, let alone express the desire to say, “And I should change that.”  Most of them, “Well isn’t that the way relationships are?  Isn’t that what you do?  Isn’t that how a man behaves?”

   And they’re flabbergasted sometimes to hear that it’s not and that it’s considered to be criminal.  The applicant can be distinguished from those more run of the mill early 20’s offenders.  Certainly his offending his [sic] horrific and serious.  There’s no demurring from that at all but it took place in a context where he was an adolescent who had been traumatised, who had severe problems across the spectrum of his psychological functioning and in a sense, I would say like calls to like.

   That when one looks for a prospective partner, there tends to be a filtering process so that the level of maturity that one looks at, the level of emotional stability, the level of perhaps capacity for regulation that one looks at is often very similar to that of the partners with whom one affiliates and I think BBRL’s case, that was the case when he was a 16 year old.  I think the man now who would be looking to affiliate for a partner can be characterised as very different on all of those levels because of the treatment he has undergone.

   Because of the impact of detention itself but also because of the knowledge he has gained through the experiences he’s had since that time, so that when like calls to like now, it will call to a very different person and accordingly, the relationship would be very different as well. 

   SENIOR MEMBER:  Thank you.  Okay.  Any other comments, Mr Coffey?

   MR COFFEY:  No.  I mean, I agree entirely with Mr Newton’s comments.  I don’t wish to add to them.”[152]

   [152]Transcript, 201, lines 30–45; 202, lines 1–39.

3. The evidence of the experts about the Applicant having developed specific protective mechanisms to deal with stressors giving rise to possible future offending had its echo in the written statement of the abovementioned Ms Leonie Nolan from Open Doors Counselling and Educational Services Inc.:

   “I have seen my role as helping him to build a ‘Tool Box’ of skills and strategies to help him deal with difficult situations, as well as building healthy, ‘safe’ relationships, especially with women. We have worked on self-regulation skills for when he is overwhelmed. He has done some impressive work on defining his values and his goals for the future.”[153]

   [153]A12.

4. I also sought to explore with the experts the impact of the amount of time the Applicant has spent away from his family has had and may have upon his recidivist risk profile. I also asked about what, if any, effects an ongoing existential threat over the Applicant’s visa status in the event of further offending would have on his recidivist risk profile. The following exchanges transpired:

   “SENIOR MEMBER:  All right.  One final question for both of you if I may.  You’ve spoken about treatment and you’ve spoken about family support and you’ve spoken about his maturity levels and how they’ve developed.  You’d agree wouldn’t you that the period that he spent removed from the community has had its impact on him?  You’d agree with that, Mr Coffey, in that he wouldn’t want to go back to that sort of removal again?

   MR COFFEY:  The period he’s had away from his family has had an effect on his family relationship, is that the question or - - -

   SENIOR MEMBER:  Yes. Yes.  Yes.

   MR COFFEY:  Yes, I think he’s missed them profoundly and the, you know, obviously the COVID regulations and the inability to actually see them face to face has made this a very difficult time for him in terms of being able to fulfil his desire to be with his family.

   SENIOR MEMBER:  All right.  And a similar effect you think he has taken from – what do we call it – the existential threat to his visa status to remain here in the context of his offending and not repeating it in future?

   MR COFFEY:  I think very much so.  I think there’s been a whole variety of motivations.  I think he genuinely wants to become a better person.  So I don’t think is some kind of facile thing to preserve his – regain his visa status but obviously that’s sitting there as well and, you know, the – he knows that without his ability to regain a visa he’s never going to be with his family again.

   SENIOR MEMBER:  Very well.  Mr Newton, any comments?

   MR NEWTON:  I think I would echo the comments in some ways.  Being way [sic] from his family, being in a custodial environment, whether that’s been youth detention or immigration detention, has in my assessment certainly resulted in a deterrent effect upon the applicant in terms of being aversive, in terms of convincing him that behaving in a way such as this in the future would have remarkably adverse consequences for him.

   MR NEWTON: Similarly, the existential threat as you’ve posed it is one that he takes very seriously.  He expresses a firm commitment to settlement here and to a new life with his family and prospectively going forward and the idea of a return to Syria was one that when I canvassed that with him, seemed to fill him with horror.  Not something that he wanted to contemplate at all.”[154]

   [154]Transcript, 202, lines 41–46; 203, lines 1-35.

   The convergence of expert opinion about risk

5. Earlier in these Reasons, I referred to my perception of a seemingly inevitable convergence in the expert clinical opinion about risk. Before me, I have two experts proffering two risk assessments. Mr Coffey refers to a low risk. Mr Newton refers to a “low-medium” with a clearly defined trajectory towards “low”. In circumstances where I am not rejecting the opinions of either or both of the experts, I am aware of the dangers of forming a view about recidivist risk were I to reject that evidence in whole or in part. I will not do so.[155]

   [155]See Doan v Minister for Home Affairs [2019] FCA 1172 [72].

   Note: the Applicant’s representative, Mr Poynder, referred to this case in closing argument. As far as I could tell, it was not cited in the Applicant’s written arguments. Mr Poynder referred to Doan, a matter which he acted in, as follows:

   “Mr Poynder: Our psychologist said the applicant was at a low risk of reoffending.  The Minister’s psychologist said that he was at a low medium risk of reoffending.  The tribunal […] deviated from both of their assessments to arrive at a decision that the applicant was at a low to low medium risk of reoffending.

   Griffiths J set aside the decision on the basis that it was simply irrational to do that, because neither psychologist had said low to low medium.” (See Transcript, 225).

   With respect, the explanation is a slight oversimplification of the holding in Doan.

   The issue in Doan was that the Tribunal impugned the evidence of the experts, but then implicitly accepted both reports to determine the boundaries for its decision of a risk range.

   Griffiths J explained that because the Tribunal had impugned the expert evidence, it could have made its own risk determination, even if that risk determination was different to the experts. 

6. Mr Newton actually made two risk assessments. The first was with reference to violent recidivism, and he assessed the Applicant as representing a low to moderate recidivist risk for that type of offending. Additionally, Mr Newton explained that the risk of violent recidivism was really a “future” risk (as opposed to a present risk) because it is conditional on a failure of “clinical” and “risk management” factors.[156] Second, he made an assessment about the Applicant’s general recidivist risk and found him to represent a low risk. In the final analysis, Mr Newton thought that “[b]ased on that[157] and the totality of the information, including the (indistinct) information or earlier history of mental state it was my view he was of a low to moderate risk.”[158]

   [156]See [‎137], above.

   [157]Mr Newton had regard to the assessment framework applicable to the HCR-20 version 3.

   [158]Transcript, 188, lines 28–30.

7. The point of convergence between the global risk assessments of the experts can be seen in the following exchange between counsel for the Applicant and Mr Newton:

   “MR POYNDER:  Just something for Mr Newton.  You heard the tribunal member say to – sorry, did Mr Coffey accept the tribunal’s suggestion that – is your position that his risk remains low – and you of course said slightly above that but we know now that you really – you’re almost saying the same thing, it just depends on – I think yours is conditional on him obtaining the post-release support.  But if that does occur – sorry, will the position remain so and if he does have that post-release support, we won’t have another [Former Girlfriend] episode.  That’s really what the question was to Mr Coffey.  Do you agree with that as well?

   MR NEWTON:  I think I agree with the proposition that provided that the applicant continues to participate with the treatment that’s been arranged and continues to engage with it in the manner that he has been engaging with it, that there is a very low risk indeed of there being another [Former Girlfriend] episode.

   MR POYNDER:  And low risk indeed sounds emphatically low.

   MR NEWTON:  Yes.”[159]

   [My emphasis and underlining]

   [159]Transcript, 204, lines 1–20.

   Questions to the experts by the Respondent’s representative

8. During the hearing, the parties agreed to a protocol or methodology of how questions would be put to the experts who gave their evidence concurrently. Prior to commencing her questions to Mr Newton, the Respondent’s representative made it clear that, in accordance with the abovementioned protocol, she proposed to “ask Mr Newton to give a brief oral exposition, so I'll ask him firstly to do that, and then I'll ask some questions arising from that.  And then finally, Mr Newton, I'll ask you if you have any comments on what Mr Coffey has said by way of his opening.”[160]

   [160]Transcript, 187, lines 16–21.

9. The following themes or questions were then put by the Respondent’s representatives to Mr Newton. First, Mr Newton was asked whether, in addition to the defined treatment regime, ventilated by the Applicant there would be any further benefit in some type of targeted treatment in the form of intervention by a forensic clinician:

   “MS HOOPER: […] What I'm interested to know in particular your opinion on is whether any recommended regime requires some sort of offence targeted treatment, for example, the intervention by someone who is a forensic clinician.  What is your opinion on that?

   MR NEWTON:  In the applicant’s case I don't believe that that treatment is required.  There would be cases similar to his where that would be absolutely necessary but in his particular case I don't believe it’s required.  That’s because the relationships counselling he has undertaken has done a lot of work on anger management, good relational practice, understanding of attitudes towards relationship conduct, gender roles and so forth.  The relationship counsellor writes quite cogently of that in her most recent report.  […] There would be perhaps some value in having him engage with an individual forensic clinician on an ongoing basis on issues of conflict management but I think that’s adequately dealt with by the counselling program that he has in place at present.”[161]

   [My emphasis and underlining]

   [161]Transcript, 189, lines 16–29, 37–41.

10. Second, the Respondent’s representative asked Mr Newton about whether the Applicant’s denial of commission of any of the offences speaks adversely to his recidivist risk. Mr Newton did not think so:

    “MS HOOPER:  Speaking generally now in relation to recidivism risk is it in your opinion relevant to someone’s risk of recidivism if they deny their guilt of offences that they have committed?

    MR NEWTON:  Well, the research n [sic] that tends to show a very small element of contribution from denial per se to the offence risk in general.  It very much depends upon how that denial is worked into the overall pattern of the person’s cognitions about their offending, their insight into their offending, and their attitude towards preventing further offending.  Denial of specific instances in the context of acknowledgement of a broad trajectory of behaviour is less concerning, so quibbling about one or two things here and there.  (Indistinct) denial, extreme denial or minimisation, blaming of victims and so forth that’s typically more concerning and usually is associated with more offence supporting cognitions and hence are of a greater increase in the risk of recidivism.

    MS HOOPER:  BBRL has given evidence in which he has denied his guilt of two or three rather particular offences.  They arose from a threat to hitting [Former Girlfriend] with a glass on 7 February and then two further convictions that arose from an incident which occurred on the night of the 27th and the morning of 28 March.  And I want you to assume that the tribunal will take its correct - the convictions for those three offences and it won't seek to undercut those.  BBRL pleaded guilty in relation to the particular convictions and now tells the tribunal that he, in fact, was innocent.  Is that relevant at all to your assessment and, if so, how?

    MR NEWTON:  Well, it makes relatively little difference to my assessment and the reason for that is because in making my assessment I factored into the assessment those convictions, so I took into account that behaviour as if it had happened. […]”[162]

    [My emphasis and underlining]

    [162]Transcript, 191, lines 1–31.

11. Mr Newton concurred with Mr Coffey in the sense that the real context of the Applicant’s violent offending must be understood in the circumstances of his emotional dysregulation as a result of his post-traumatic stress symptomatology:

    “Be that as it may, as Mr Coffey explained in his evidence, it’s the overall trajectory of the violence that’s important and the context in which it occurred.  And it’s clear in BBRL’s case that the context of the violence is very much when he is symptomatic for post-traumatic stress, when his emotional regulation mechanisms are overwhelmed, when his behavioural control mechanisms overwhelmed.”[163]

    [163]Transcript, 191, lines 36–41.

12. Third, the Respondent’s representative configured a question to Mr Newton arising from the Applicant’s denial of mutually violent incidents between himself and the Former Girlfriend prior to commission of the index offending. Mr Newton did not think either a denial or a failure to disclose that earlier physicality in the relationship adversely impacted on his assessment of the Applicant’s recidivist risk:

    “MS HOOPER:  In paragraph 25 of your report you’ve got a sentence:

    BBRL acknowledged that he had punched and hit [Former Girlfriend] in this period.

    I think you were talking there about the period of early 2016, is that right?

    MR NEWTON:  That’s correct.

    MS HOOPER:  And so he was quite clear when you spoke to him, and this was fairly recently I think when you interviewed BBRL, it was March and April 2021, he was quite clear to you at interview, was he, that he had punched and hit [Former Girlfriend] in that early 2016 period?

    MR NEWTON:  Yes, that was my understanding of what he had said to me.

    MS HOOPER:  Would it cause you concern or impact your assessment at all if he in his evidence to the tribunal yesterday denied that he had ever been physically violent to [Former Girlfriend] in that way?

    MR NEWTON:  It would be surprising to me but it would not in the overall fashion for the reasons I've explained in an earlier answer effect [sic] my evaluation of his risk.”[164]

    [My emphasis and underlining]

    [164]Transcript, 192, lines 8–30

13. Fourth, the Respondent’s representative took up the issue of denial of certain aspects of the Applicant’s offending by members of his family and how, if at all, their denial or obfuscation of the Applicant’s offending spoke to his recidivist risk. As best as I understood his evidence, Mr Newton thought it important for the Applicant’s family “to have a full idea” of what offences the Applicant had committed. He was, nevertheless, more concerned with the role to be played by the Applicant’s family in his rehabilitation and he seemed expectant of the family meeting this requirement:

    “MS HOOPER:  Now, mention has been made of the role of the applicant’s BBRL’s family, indeed the critical role that they potentially play as a protective factor.  Today evidence was given by BBRL’s mother, father and his brother BBRL Brother.  All three of those witnesses said that BBRL, and I'm paraphrasing the effect of their evidence, they were not aware of any convictions or offences except for the stabbing.  Is it important or not important that BBRL’s family are aware of the full extent of his criminal convictions and they do not endorse the view that he is innocent of any of those convictions?

    MR NEWTON:  It would certainly be important in my view for them to have full information about the history that he has manifest and experienced.  It would be important for them to be giving informed consent to their continued participation going forward and for that reason it’s important to have a full idea of what happened.  I would be concerned if there were minimising or offence supporting cognitions or attitudes being manifest by the family going forward.  But absent that an ongoing dialogue about how the offences occurred and what happened there, what the issues were that led to them and so forth would be positive and helpful.  The comments made in other reports have suggested that they’ve been very supportive of his treatment and rehabilitation and so that gives some degree of reassurance on that score but that’s the most important thing is that they’re reassuring and helpful going forward rather than counterproductive.”[165]

    [165]Transcript, 193, lines 14–30.

1. Finally, the Respondent’s representative asked Mr Newton whether he had any further comments or observations about the written or oral evidence of Mr Coffey. To my mind, it is not inaccurate to say that the evidence of Mr Newton did, for all intents and purposes, effectively “fold into” the evidence of Mr Coffey. Hence, my earlier observation about the convergence trajectory of the experts’ evidence in this matter:

   “MS HOOPER:  I said at the outset I'd ask you if you had any particular comments on what Mr Coffey said by way of his oral exposition in answer to Mr Poynder.  You don't necessarily have to make any comments but having heard what Mr Coffey said is there anything in particular that you would wish to comment on or respond to?

   MR NEWTON:  There was nothing that I took issue with from Mr Coffey’s evidence and there was no way in which I felt that he'd inaccurately - I think he used the phrase “Put words in my mouth” when talking about the views we had reached and the discussions we had had.  I think it fairly represented our views and the concurrence of our opinion.  And I think he fairly and accurately represented the important issues that are salient here in terms of the connection between the applicant’s traumatisation and his acting out, his violence, and the important strategies that are in place to manage that.”[166]

   [166]Transcript, 193, lines 38–47; 194, lines 1–4.

2. When cross-examining Mr Coffey, the Respondent’s representative put the following questions to him. First, as she did with Mr Newton, she asked Mr Coffey whether there was a requirement for offence targeted treatment or whether this was no longer necessary:

   “MS HOOPER: You heard what Mr Newton said about that and I wanted to ask you whether it’s still your view that there needs to be offence targeted treatment or whether that is no longer your view.

   MR COFFEY:  No.  Look, I agree with Mr Newton on that point.  What’s happened – what’s overtaken that earlier opinion is that through his counselling, some of the specific criminogenic risk factors he had such as his thinking about relationships, his values with respect to how relationships are conducted have been canvassed quite comprehensively in the existing treatment – ongoing treatment.”[167]

   [My emphasis and underlining]

   [167]Transcript, 204, lines 40–47; 205, lines 1–2.

3. Second, the Respondent’s representative took Mr Coffey to the first of his 6 reports, dated 15 December 2016. As best as I understood this line of questioning, it was intended to impugn the findings of Mr Coffey in that first report when viewed in the context of findings he made about recidivist risk in his subsequent reports. Ultimately, I am of the view that these questions went nowhere because, as Mr Coffey said, it took a while for the Applicant to become involved in a “solid treatment relationship” but when he did, Mr Coffey was of the view that his recidivist risk could more reliably be defined as low:

   “MS HOOPER:  In your – this is the same report, 15 December 2016, paragraph 113 on T documents page 247.  Now, at the time you wrote this particular report BBRL had not yet been convicted of the Parkville riots and you didn’t have the benefit of all of the information that you now have about the behaviour that he’s engaged in in immigration and juvenile detention.  And then this time we’ve just had the index offences, so the stabbing and also of course the events that predated that, including 7 February and 28 and 29 March 2015.  In your report at paragraph 113 you’ve indicated that BBRL has not and has never presented a risk of violent offending more generally.  My question for you is whether having regard to the subsequent riots, the incidents in immigration and youth detention and all of the information that you now have the benefit of some five years later, is it still your view that BBRL is of no prospect at all of general violent recidivism or do you need to now qualify that?

   MR COFFEY:  Well, Mr Newton’s looked at that in his report and he’s looked at the central eight risk factors for more general recidivism and I generally agree that it’s low but at that point he was very uncontained, very unwell and he was directing his anger at those people around him and that included staff in the custodial units he was in.  So you will see that subsequent to this report in – and this is not specifically on point but this is more generally of relevance, in my report of October 2018 I’ve sat at paragraph 57, “Contrary to the more optimistic view I then held,” referring back to earlier reports, “it’s now evident BBRL’s complex PTSD has not responded substantially to treatment.”  So I think it’s relevant in the sense that I may have thought his trajectory with treatment in custody was going to resolve things more quickly than they did and he actually went on, as we know, to behave in a variety of aggressive ways for a long time in custodial settings.  So, yes, with hindsight I can say that – or by October 2018 I was able to say that things hadn’t progressed as much as they might have.

   MS HOOPER:  So it’s fair to say that the path along someone’s road to rehabilitation is not necessarily always predictable.  Things can change unexpectedly?

   MR COFFEY:  With respect to how he responded in the – yes, that’s – look, that’s true and that was particularly true of what was happening in the custodial environment.  So it took a while for him to get into a solid treatment relationship.  It took a while for him to respond to treatment and there was a whole lot of environmental stimuli that was frankly very unsettling for a person with his traumatic history.  So that combination of things did lead to a lot of fluctuation in his mental state and his behaviour including his aggression.  So certainly your statement is born out with respect to how he behaved in custody.”[168]

   [168]Transcript, 207, lines 34–47; 208, lines 1–30.

4. In summary, I am not of the view that answers to questions put to Mr Newton by the Respondent’s representative about (1) the requirement of any targeted or forensic clinical treatment (in addition to the extant treatment regime); (2) any past or current denial of guilt by the Applicant; (3) any past or current denial of physical violence between the Applicant and the former girlfriend; and (4) any inaccurate or incomplete recollection of the Applicant’s offending by his family neither individually or collectively, speak adversely to Mr Newton’s assessment of the Applicant’s recidivist risk. Likewise, I am of the view that answers to questions put by the Respondent’s representative to Mr Coffey about (1) offence-targeted forensic treatment to augment the existing treatment plan; and (2) any inconsistency between a finding he made in a report almost five years ago compared to what he subsequently said in more recent reports in any way speaks adversely to Mr Coffey’s assessment of the Applicant’s recidivist risk.

   Conclusion on risk of re-offending

5. I have already made findings about the convergence of expert opinion expressed by Messrs Coffey and Newton. I am firmly of the view that the Applicant’s present recidivist risk can be safely found to rest between the “low” and “low-medium” paradigms expressed by the experts. That, to my mind, means he does not represent a “present and serious risk”.

   CONCLUSION

6. I have had regard to the totality of the not inconsiderable material before the Tribunal including the very able and learned submissions by the respective representatives, the authoritative written and oral evidence of the expert clinicians, and the transcript of this hearing and the earlier hearing ventilated in this Tribunal (to the extent that earlier transcript is of any relevance to the instant determination).

7. While it can be accepted that the Applicant once represented a danger and an unacceptable recidivist risk, I am of the view that his (1) present recidivist risk; (2) the expert opinions before the Tribunal which are very strongly suggestive of a relentless trending of recidivist risk towards the low paradigm for both violent and general recidivist risk; (3) the level of engagement with the rehabilitative treatment process to date; and (4) the extent of rehabilitative and personal supports available to him in future, cumulatively serve to convince me that he is not presently a danger to the Australian community.

   DECISION

8. The Tribunal sets aside the reviewable decision dated 17 August 2020, and remits the matter to the Respondent for reconsideration with the following directions:

   (i)the Applicant satisfies the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth); and

   (ii)the Applicant does not engage s 36(2C)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of

...................................[sgd]...............................

Associate

Dated: 8 November 2021

Date(s) of hearing:	9, 10 & 13 September 2021
Counsel for the Applicant:	Mr N Poynder
Applicant Representative:	Refugee Advice & Casework Service (Aust) Inc.
Counsel for the Respondent:	Ms K Hooper
Respondent Representative:	MinterEllison

ANNEXURE A

Ex.	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
T	Section 37 T-Documents (paged 1-2270) (Volumes 1-6)	-	28 September 2020
S	Supplementary Section 37 T-Documents (paged 226-3728) excluding pages: ·     1373; ·     1374; and ·     1378. (Volumes 1-4)	-	29 September 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (35 pages, 96 paragraphs)	29 July 2021	29 July 2021
R2	Extracted Detention Records (16 pages)	-	29 July 2021
R3	WITHDRAWN/NOT TENDERED (See Transcript, 1, lines 33–34)	–	–
R4	Psychologist Report by Patrick Newton (23 pages, 69 paragraphs)	12 May 2021	18 May 2021
R5	Joint Expert Memorandum of Patrick Newton and Guy Coffee (7 pages)	3 September 2021	3 September 2021
R6	Extracts of Transcript in AAT Proceedings  from October 2018 before Member Burke (paged 1, 10, 38, 47)	22 October 2018	9 September 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1-34, 22 paragraphs)	30 June 2021	30 June 2021
A2	Applicant’s Bundle of Documents (paged 1-32)	-	30 June 2021
A3	IMP Reviews (3 pages)	-	6 August 2021
A4	Supplementary Psychologist Report by Guy Coffey (11 pages, 53 paragraphs)	4 August 2021	6 August 2021
A5	Original Psychologist Report by Guy Coffey (22 pages, 83 paragraphs)	22 November 2020	24 November 2020
A6	Additional Health Assessment Summary Report by Christine Nathan (6 pages)	20 July 2021	6 August 2021
A7	Original Health Assessment Summary Report by Christine Nathan (7 pages)	28 October 2020	02 June 2021
A8	Statement of Applicant’s Mother (2 pages)	25 May 2021	02 June 2021
A9	Statement of Applicant’s Father (2 pages)	25 May 2021	02 June 2021
A10	Statement of Applicant’s Brother (2 pages)	27 May 2021	02 June 2021
A11	Letter from Christine Nathan (2 pages)	20 May 2021	02 June 2021
A12	Letter from Leonie Nathan (1 page)	20 May 2021	02 June 2021
A13	Letter from Matthew Hyde (1 page)	-	02 June 2021
A14	Extracts of Complete Transcript in AAT Proceedings from October 2018 before Member Burke	22 & 23 October 2018	10 September 2021
A15	Screenshot images of: ·     Applicant’s Family Home in Victoria (1 image); and ·     Map showing the location of Applicant’s Family Home in Victoria (1 image).	–	10 September 2021