BDSG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 1735

BDSG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1735 (11 June 2021)
Division:GENERAL DIVISION
File Number(s):2020/1470
Re:BDSG
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Damien O'Donovan
Date:11 June 2021
Place:Canberra

The decision under review is affirmed.
..............................[sgd]..........................................
Senior Member Damien O'Donovan
Catchwords
IMMIGRATION & CITIZENSHIP – decision made under section 65 of Migration Act 198 to refuse applicant’s application for protection visa – where applicant has been convicted of a serious crime – whether applicant is a danger to the Australian community – decision under review affirmed.
Legislation
Migration Act 1958
Cases
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409
EBD20 v MICMSMA [2021] FCA 334
JRJZ and MHA [2018] AATA 3687
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
NBMZ and Minister for Immigration and Border Protection [2014] FCAFC 38
RWDX and Minister for Immigration and Border Protection [2019] AATA 123
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
Secondary Materials
Refugee Law Guidelines
Hanson et al, ‘Assessing the risk of sexual offenders on community supervision: the Dynamic Supervision Project’ (2007) Public Safety Canada.
REASONS FOR DECISION
Senior Member Damien O'Donovan
11 June 2021

The decision under review is a decision of a delegate of the Minister, made under section 65 of the Migration Act 1958 (the Migration Act), to refuse the applicant’s application for a protection visa[1] on the basis that the delegate considered that the applicant did not satisfy the criteria in ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act, because the delegate considered that the applicant, having been convicted by a final judgment of a particularly serious crime, was at that time a danger to the Australian community.
[1] Specifically a Safe Haven Enterprise (subclass 790) visa.
There is no dispute that the applicant has been convicted by final judgments of a number of crimes which meet the definition of ‘particularly serious crime’ for the purpose of ss 36(1C)(b) and 36(2C)(b), as defined in s 5M of the Migration Act. Consequently, the only issue which must be determined is whether I consider on reasonable grounds that the applicant is a danger to the Australian community.
LEGAL FRAMEWORK
The criteria are relevantly expressed in the following terms in s 36 of the Migration Act:
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)…
(b)…is a danger to the Australian community.
…
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a)…
(b)the Minister considers on reasonable grounds that:
(i)…; or
(ii)the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
The test for whether a person is a danger to the Australian community combines a subjective and an objective element. For the applicant to fail to meet the criterion in subsection (1C) (and be taken to not to meet the complementary protection criterion in paragraph (2)(aa)) I must first subjectively form the view (or to use the statutory language ‘consider’) that the applicant is a danger to the Australian community. If I form that view, there must be reasonable grounds for the formation of it. There are departmental guidelines issued in relation to the consideration of these questions. I can have regard to them but I am not obliged to do so.[2]
[2] Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409.
The Refugee Law Guidelines relevantly provide:[3]
While the circumstances of a crime may indicate that the actions represent a danger to the community, decision makers must determine whether the person remains a danger to the community which may take into account any mitigating circumstances, remorse shown by the applicant and any punishments or rehabilitative corrections applied.
Note: Sections 36(1C)(b) and 36(2C)(b)(ii) are mirror provisions. Therefore, the same considerations and findings should apply.
[3] Exhibit 2, T3, folio 586.
In making my decision I have had regard to the guidelines.
Both the AAT and the Federal Court have considered the test for determining whether a person is a danger to the Australian Community. For purposes of framing the discussion which follows it is useful to summarise some basic propositions about the nature of the statutory test.
The first point to note is that the power being exercised is not discretionary.
In RWDX and Minister for Immigration and Border Protection [2019] AATA 123 (RWDX), Deputy President Boyle observed at [34]-[38]:
Considering whether the Applicant poses a danger to the Australian community does not involve the exercise of a discretionary power like s 501 of the Act. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision: s 65 of the Act and MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 (MVLW) at [29]-[32]. It cannot balance the danger against the possible harm to an Applicant if returned to their receiving country: SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 at [27].
Second, it needs to be recognised that the power will only be exercised in circumstances where the subject of its exercise has already been convicted of a particularly serious crime. Accordingly, that fact provides inevitable background to the analysis of whether the applicant is a danger to the Australian community, not the sole basis on which the additional conclusion concerning danger can be reached.[4]
[4] It is noteworthy that in the US for example, the approach which has been taken is to treat the criminal conviction as determinative of the question of danger to the community – see the remarks of Justice Logan in DOB18 v Minister for Home Affairs [2019] FCAFC 63 (DOB18) at [48].
Third, it needs to be kept in mind that in considering whether a person is a danger to the Australian community the Tribunal is considering a question of fact and degree.[5] In most circumstances there will need to be a consideration of both the nature of the risk the applicant poses and the likelihood that the risk will materialise at some point.
[5] WKCG and Minister for Immigration and Citizenship [2009] AATA 512 at [25].
Accordingly, to undertake this evaluative exercise it is important not to be distracted by undue focus on a single element of the analysis. Assessing the size of the risk that the applicant will engage in criminal behaviour in the future is part of the analysis, but it should not be the exclusive focus. For that reason, while it has been the subject of some judicial scepticism,[6] the broad framework proposed by Deputy President Tamberlin QC in Re WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) remains a useful starting point for identifying whether there are reasonable grounds for considering that a person is a danger to the Australian community.
The learned Deputy President observed (at [25]-[26] and [30]-[31]) as follows:
The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
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. 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.
…
Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a “real probability” of harm being caused to the community.
The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”[7]
[6] See the comments of Justice Logan in DOB18 at [76] and following.
[7] I note that in making my decision I am applying the words used in the Migration Act, not applying directly the wording of the Refugee Convention.
Subject to the qualification that there may be crimes which have a less serious quality about them such that a person may not be regarded as a danger unless there was a high likelihood of them re-offending, I adopt the framework outlined above. In particular I note that something with a very small risk of happening, but very serious consequences can be referred to appropriately as a danger. For example, an unexploded bomb in a populated area with only a very small chance of detonating can be appropriately referred to as a danger. Accordingly, if the harm that would eventuate if a risk materialised is very serious, even if the chance of it occurring is small – that can be sufficient for it to amount to a danger.
In approaching the question, I have also been assisted by the remarks of Deputy President Rayment in JRJZ and MHA [2018] AATA 3687 at [28]. He commented:
The expression “danger to the Australian community” is to be construed in its context, but has no technical meaning. The phrase is used in both s 36 and s 501(6)(d) of the Act, albeit in slightly different contexts. The language is that of ordinary English. Whether it is satisfied involves a close consideration of the whole of the relevant facts and circumstances as they present today. I am not sure that there is any one test as such. The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re- offend. What rehabilitation a person has undergone is obviously relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.
In DOB18, in the context of discussing the framework set out in WKCG, Justice Logan stated that the term 'danger' is distinct from the term 'risk', and "carries a narrower and more restrictive meaning than just 'risk'" (at [83]). Justice Logan further stated his view that assessing danger requires an assessment as to the present level of risk, having regard to the information in relation to the visa applicant at the time (at [87]). I agree with those remarks and I do not understand WKCG to suggest otherwise. I accept that danger requires more than identification of a chance that the applicant may harm someone in some way in the future. However, I do not understand Justice Logan’s remarks as requiring some imminence to the risk materialising upon the applicant being released. That is not a necessary requirement for a person to be regarded as a danger to the community.[8]
[8] For completeness I note Justice Kerr’s recent comments in EBD20 v MICMSMA [2021] FCA 334 at [46] which noted that the obiter remarks expressed by Justice Logan about how the question of danger was dealt with in WKCG have not been more generally embraced
I am satisfied that WKCG is helpful in terms of laying out a process for assessing the danger posed by a person who has committed offences in the past and may do so again if released into the community. The factors which the learned Deputy President identified as assisting with the examination of that question do assist. Those matters are:
(a)the seriousness and nature of the crimes committed;
(b)the length of the sentence imposed;
(c)any mitigating or aggravating circumstances;
(d)The extent of the criminal history and the nature of the crimes;
(e)The risk of re-offending and lapsing into crime and the prospect of rehabilitation;
(f)The character of the person; and
(g)The possibility or probability of any threat posed.
I have given consideration to each of these factors in reaching my conclusions.
Evidence
In making my decision, I have considered the evidence before me, which consisted of::
(a)A joint tender bundle which was provided by the parties on 18 January 2021 in two bundles. I have marked these documents “Exhibit 1”.
(b)T-Documents which were prepared by the Respondent and filed on 29 May 2020 in two bundles, which included all of the material before the delegate. I have marked these documents as “Exhibit 2”.
(c)Supplementary T-Documents which were prepared by the Respondent and filed on 15 December 2020. I have marked these documents as “Exhibit 3”.
(d)A Statement of Facts, Issues and Contentions of the Respondent, which attached documents listed as Annexure “A” to “H”. I have marked these attached documents as “Exhibit 4”.
(e)A letter from Australian Border Force to the Applicant dated 15 March 2021, which I have marked as “Exhibit 5”.
A report by Hanon et al, ‘Assessing the risk of sexual offenders on community supervision: The Dynamic Supervision Project’, dated May 2007. I have marked this report as “Exhibit 6”.
The Applicant was the only witness who gave oral evidence at the hearing.
Facts
The facts in relation to this matter are not, for the most part, in dispute.
The applicant was born in Malaysia to Iraqi parents in 1994. He arrived in Australia on 8 April 2009 as an unauthorised maritime arrival, aged 15. He was granted a protection visa on 16 July 2009. On 21 January 2013, the applicant’s protection visa was cancelled by operation of s 140 of the Migration Act, which cancels the visa of members of a family unit where the primary visa holder’s visa has been cancelled for certain reasons.
On 8 February 2013 the applicant was granted a temporary visa.
In 2014, the applicant committed a sexual assault on his partner, however no report of the incident was made to the police until two years later. The details of the crime are discussed further below.
On 4 June 2015, an International Treaties Obligations Assessment (ITOA) conducted by the Department of Home Affairs found that non-refoulement obligations were owed to the applicant.
On 12 March 2016, the applicant committed further offences including sexual assault in company with his brother, K. On 10 May 2016 the applicant committed the offence of Attempted Aggravated Robbery. Again, the details of these crimes are discussed further below.
On 11 May 2016 the applicant was arrested and charged with:
(a)Sexual assault in the third degree in company;
(b)Aggravated robbery;
(c)Sexual intercourse without consent in company;
(d)Sexual intercourse without consent in company;
(e)Attempted aggravated robbery in company.
On 24 June 2016 the applicant applied for a Safe Haven Enterprise visa. On 23 September 2016 the applicant’s bridging visa was cancelled under s 116 of the Migration Act.
On 6 June 2017, following a trial by jury, the applicant was convicted of two offences relating to the sexual assault of his partner in 2014, and on 11 August 2017 he was sentenced by the ACT Supreme Court to an aggregate sentence of 3 years imprisonment (with a non-parole period of 22 months).
On 22 August 2017 the applicant was convicted of five offences committed on 12 March 2016 and 10 May 2016 having entered pleas of guilty for all offences. He was sentenced by the ACT Supreme Court to an aggregate sentence of 7 years, 11 months and 14 days imprisonment with a non-parole period of 5 years, 6 months and 26 days which was additional to the sentence imposed in relation to the 2014 offences. He is eligible for release on 6 December 2021.
On 7 May 2019 a delegate of the Minister refused the Applicant’s application for a protection visa on the basis that the delegate considered that while the applicant is a person in respect of whom protection obligations are owed, the applicant does not satisfy the criteria in sub-sections 36(1C)(b) and 36(2C)(b) because, having been convicted by a final judgement of a particularly serious crime, the delegate considered on reasonable grounds that the applicant was a danger to the Australian community.
On 14 May 2019 the applicant applied to the AAT for review of that decision.
The applicant accepts that he committed nine offences between 2014 and 2016, that he was sentenced to prison in relation to eight of those offences and that those offences included offences which targeted vulnerable women, involved the use of weapons to threaten victims, and in relation to the 2016 offences, involved planning and were committed in company. He accepts that the ‘particularly serious crime requirement’ for the decision is met. Accordingly, the nature and seriousness of the applicant’s crimes is not in dispute. However, in order to explain my conclusion in relation to whether I consider that the applicant is a danger to the Australian community, it is necessary to record in some detail the conduct which constituted the offences and the circumstances in which they occurred. The following constitute my findings of fact in relation to those matters.
The applicant’s crimes and other conduct
In 2014, the applicant committed a sexual assault against a person who was his girlfriend at the time. The applicant pleaded not guilty to the charges. Following his conviction, at the sentencing hearing, the applicant frankly admitted to the circumstances of the offence. Those circumstances are recorded in the sentencing remarks of Justice Burns in the following terms:[9]
…you threatened the victim with a pair of scissors, demanding that she engage in anal sexual intercourse with you. You threatened to cut off one of her fingers and also ran the blade of the scissors down her thigh…You then escorted the victim to her bedroom and engaged in anal intercourse with her until you ejaculated.
This was very painful for the victim, who was crying and also crying out into her pillow at the time. You were well aware…of the fact that the victim was not consenting to this conduct. These offences occurred at the victims home…I am satisfied that your older brother has had an influence on you and also in forming your attitudes…I am prepared to find on the basis of the evidence that you gave, that your attitudes at that time were influenced not only by the influence upon you of your brother, but also the fact that you were using illicit drugs…If I concern myself only with the present charges, I would say that you have reasonable prospects of rehabilitation.
[9] Exhibit 2, T10, folios 814-815.

The applicant gave evidence to this Tribunal that he had used methamphetamine prior to visiting the victim at her house and smoked marijuana with her prior to committing the offence. I accept that evidence. However, on the applicant’s own admission, the crime was committed in circumstances where he was of the view that he was acting out a sexual fantasy which the victim wanted, notwithstanding her clear indications during intercourse to the contrary. The applicant believed at the time of the sexual assault and for the entire period up until the trial, that the victim had wanted what happened to her to take place. During the Tribunal hearing, he described it as a role play ‘that she was into’. The applicant accepted as ‘probably’ accurate a comment attributed to him in a police report by the victim that when the victim said to the applicant after the incident that he had ‘practically raped her’, he responded ‘Oh come on, you enjoyed it, don’t lie’.[10]
[10] Exhibit 3, ST1, folio 987.
The applicant’s relationship with his victim did not end with the sexual assault that was the subject of the charges and the applicant was violent to his partner on another occasion which is recorded in a police report. The applicant accepts the incident occurred as described by the victim. The incident occurred in late 2015. It is described in the police report in the following terms:[11]
…the defendant and [V] were in the lounge room at the defendants’ home…Also present was the defendant’s mother Khalida…[V] was asking the defendant for the pass code to his phone. [V] said words to the effect of: “Can I please, please, please, just know the passcode to your phone?” The defendant refused. [V] continued to ask for the passcode before the defendant threatened [V] that if she asked again there was going to be trouble.
[V] asked again for the passcode. The defendant took hold of [V’s] hair with both hands and dragged her some distance from the lounge room to outside the premises and told her to “Fuck off”.
[The applicant’s mother] said words to the effect of: “Mohammad, what are you doing, Mohammad”.
[V] left the location before returning later that day after the defendant asked her to return. The defendant later apologised to [V] saying that he told her if she asked for the passcode something would happen.
[V] stated that she had a cut to one of her legs as a result of being dragged on concrete, her head hurt and a big clump of her hair had been ripped out by the defendant.
[11] Exhibit 3, ST1, folio 988.
This episode is also relevant to assessing whether the applicant is a danger to the community.
There is very little disagreement about the key facts relating to the applicant’s offending in 2016. I am satisfied that when the offending occurred the applicant was a daily user of methamphetamine, had a gambling problem and was working and socialising with his brother, who I am prepared to accept was a bad influence. On the applicant’s evidence (which I accept) the offence came at the end of four days of heavy drug use and when the applicant was trying to solve an urgent financial problem which had come about due to his addiction to gambling. I note these matters for the purpose of context, not to excuse the behaviour which followed.
The circumstances of the crime were described in the sentencing report in the following terms:[12]
[K, the applicant’s older brother] booked an appointment with a sex worker who I will refer to as LU…He attended a unit…under the pretext that he would be paying for a massage and sexual services. This was arranged through another person, Ms A. As a result of those communications [K] knew that LU would be alone. [K] arrived at the apartment complex with Mohammed and another person (the third offender). [K] rang the doorbell while Mohammed and the third offender waited nearby. [K] asked whether a friend could come inside and wait. LU said that he could not because non-clients were not permitted into the building. [K] said he would need to get some money from his friend and walked out of the apartment. A moment later he went back into the apartment followed by Mohammed and the third offender. LU said that the other men could not stay and tried to make a call using her mobile phone. One of the men grabbed the phone and threw it on the ground. The three men grabbed LU and began to drag her towards one of the bedrooms. She tried to fight them off but stopped resisting when she saw that [K] was holding a knife and threatening her with it. The three men dragged LU into the bedroom, pulling some of her clothing over her head as they did so. These events constitute count one in the indictment of 7 March 2017 which is a charge of sexual assault in the third degree against both Mohammed and [K] .
Another sex worker who I will refer to as ‘XK’ was also in the apartment. She was hiding near the television in the living room. She sent six text messages to Ms A asking her to come quickly and call the police.
…
Mohammed searched the living area of the apartment for valuables and found XK hiding. He told her to get up, took her by the arm and led her forcibly into the bedroom where the others were. XK did not resist because she was scared and had heard the men threatening LU earlier. This constitutes count two on the indictment of 7 March 2017 against Mohamed, sexual assault in the third degree in company. Mohammed saw that XK had a mobile phone and asked her if she had called someone. She denied having done so but the offender took her phone and did not return it. This constitutes count three on the indictment of 7 March 2017 against Mohammed, aggravated robbery.
Mohammed entered the room and saw the sexual acts that were taking place [involving the other offenders and LU]. He opened a condom packet that was on the bedside table and put on the condom on his penis and forced LU to perform oral sex on him. This is count seven on the indictment of 7 March 2017 against Mohammed, sexual intercourse without consent in company.
…
Mohammed told LU to lie on the…bed face up and he had sexual intercourse with her for several minutes. This gives rise to count ten on the indictment of 7 March 2017, a charge against Mohammed, sexual intercourse without consent in company. At about this time Ms A and her male partner arrived and banged loudly on the front door. Mohammed and [K] hurriedly got dressed and told LU and XK to act as though nothing had happened. The third offender opened the door and attempted to close it again. Ms A’s partner told the third offender: “get out, the police are on their way”. He chased the third offender down the stairs. He returned and found Mohammed and [K] wearing only their underwear and carrying their clothing. Mohammed and [K] quickly left the apartment. Police arrived shortly afterwards.
[12] Exhibit 2, T10, page 804.
The applicant’s financial problems and those of his brother did not resolve. On 10 May 2016 they received a phone call from a drug dealer to whom they owed money.[13] She demanded that they pay the debt, threatening that it would double each day that it remained unpaid. The two brothers hatched a plan to rob another sex worker. Arrangements were made to use the services of a sex worker KHX. Mohammed drove his brother to the sex worker’s address. He dropped K off understanding that it was K’s intention to rob the sex worker.
[13] Exhibit 2, T10, page 804.
As it turned out, the sex worker had no cash on her premises and K ended up menacing her with a box cutter and then sexually assaulting her. Mohammed drove K away from the location.[14]
[14] Exhibit 2, T10, page 805.
The applicant was taken into custody soon after and has been either on remand or serving his sentence ever since.
Context for offending
The applicant puts forward the following additional facts to contextualise his offending. In broad terms, these are not matters in dispute.
The applicant was born in Malaysia but is a citizen of Iraq. He has never lived in Iraq. He and some members of his family left Malaysia in about 2007 and travelled to Indonesia where they lived for about 2 years as refugees. The applicant claims, and I have no reason to doubt, that his early years in Malaysia and Indonesia negatively impacted on him and inhibited his ability to develop a coherent mental and emotional framework within either his own family or the communities in which he lived from birth. His experiences prior to coming to Australia were overwhelmingly traumatic. He had little contact with his father growing up and when the family departed to Indonesia his father remained behind in Malaysia.
The applicant arrived in Australia by boat on 8 April 2009 and was detained with his mother and five siblings, including his older brother K (also known as Ahmed),[15] under s 189(3) of the Migration Act and held on Christmas Island. The journey by boat to Australia and detention on Christmas Island was traumatic and had a negative impact on his ability to mature and grow into responsible manhood.
[15] Who had lived separately from the applicant for the bulk of his childhood.
On 17 July 2009, he and all the family members who travelled with him, were granted permanent protection visas and released into the community. They lived first in Brisbane but moved to Canberra soon after release.
The applicant’s father, who was to become known in the media and politically, as “[redacted]” later travelled to Australia by boat with the pregnant wife of the applicant’s older brother K. Both were immediately detained until they were also granted protection visas and released into the Australian community. They came to Canberra to live. In Canberra the applicant also lived with his mother who was always the principal caregiver in his life. He maintains, and I accept, that he has a high regard for his mother and his sisters and respects them all.
The applicant’s father later fled Australia after suggestions by an ABC Four Corners Programme in 2012 that he was a people smuggler. The applicant is permanently estranged from his father and does not know where he is although he has heard that he is possibly in Iraq.
As a result of the release of the ABC Four Corners programme in 2012, the visas of all the family members (except one of his sisters) were cancelled on 21 January 2013. Their futures became uncertain with Government assistance through Centrelink and housing also being cancelled for some of his siblings. All were under threat of detention and deportation from the date of cancellation until after the applicant was incarcerated in May 2016.
Following the extensive media coverage of his family and particularly of his father considerable stress was caused to his mother, older siblings and to him and his younger siblings to varying degrees.
His older brother K was a dominating and powerful influence in his life after they came to Australia. K is ten years older than the applicant.
The applicant started using illegal drugs, methamphetamine and cannabis, in 2013 and by 2014 through to 2016 he was using on a daily basis. The applicant’s drug use is examined in more detail below.
He began gambling towards the end of 2015 and was badly addicted by 2016 with serious losses. It was in this context and under these influences that he committed these crimes. The applicant claims that it was the influence of drugs which meant he was not in his right mind when he committed his offences. In submissions he also points to the influence of his older brother.
Behaviour since incarceration
As it is relevant to consider the extent to which the applicant has reformed it is necessary to consider the applicant’s behaviour since he has been incarcerated. For the most part the applicant was very frank about what he done during his time in jail.
The applicant in his Statement of Facts, Issues and Contentions described his time in custody in the following terms:
…after an initially difficult adjustment, he has used his time productively to rehabilitate himself through supervised medical treatment; education; attending counselling and treatment programmes as well as working, for a time, in the bakery and undertaking training in fields which he thinks may assist him when he returns to the community.
I accept that in broad terms this is an accurate description of the applicant’s conduct. It is however important to examine in detail the applicant’s conduct while incarcerated in order to reach conclusions about whether it can truly be said that the applicant has significantly reformed and is unlikely to re-offend. It is certainly true that the applicant has undertaken an ACT Corrective Services Adult Sex Offender Program (ASOP), has engaged successfully with the prison drug rehabilitation programs and has tried unsuccessfully to undertake a program to help with his susceptibility to gambling addiction. It is also true that the applicant has received visits from his family members while he has been in the AMC and those visitors have included his mother and sisters until COVID restrictions closed visiting opportunities. I accept that he speaks to his mother and siblings by telephone as permitted.
However, there is a dispute about whether the applicant resisted early opportunities to undertake the ASOP and failed to attend a necessary interview to enter that program. Given that the applicant subsequently did undertake that program I am satisfied that at all times during his incarceration he was interested in undertaking courses to address the causes of his criminality and never consciously failed to engage with the programs on offer. This commitment is demonstrated by the fact that the applicant completed the ACT Corrective Services Sex Offender Treatment Program (Exit Date 12 July 2020), and has also completed Anger Management and First Steps Alcohol and Drugs programs.
I am satisfied that the records before this Tribunal demonstrate that since being incarcerated the applicant has completed courses and requested access to other courses which are designed to assist him not only with establishing himself in the community if he is released but also could form a basis for rehabilitation.
In relation to his drug use it is clear that the applicant struggled to get free of drugs when he was first remanded in custody. He accepted that he returned two urine samples which were positive for prohibited drugs (26 May 2017 and 15 March 2019) while in jail and he admitted that he was caught with drug paraphernalia in his cell (26 May 2017). He confirmed that he refused to give a urine sample on 22 February 2017 and that the reason for the refusal was that he knew he had drugs in his system.
Issue
As is clear from the descriptions of the applicant’s conduct, between 2014 and 2016 the applicant was a danger to the Australia community. His intimate partner was the subject of violence and sexual violence and his financial problems and drug use led him to attempt robberies and sexually assault sex workers.
The applicant’s submission is that given what is known about the applicant now, I could not consider him a danger to the Australian community. I should be satisfied that the conduct described represents an aberration induced by the bad influence of his brother and the use of drugs and his gambling addiction. He denies having a negative attitude towards women and, in support of this proposition says that he holds his mother in high regard and that he loves his sisters. The applicant says that he is deeply remorseful and ashamed of his crimes which he regards as abhorrent and in no way to be excused. He is highly embarrassed by what he has done. He submits that at the time he was under the influence of illegal drugs which does not excuse the behaviour but goes towards explaining it. He admits that he was badly addicted to gambling in 2016. The applicant submits that when he engaged in sexually abusive and violent crimes against vulnerable women, he was not in his right mind and was under the influence/control of methamphetamine/ice.
The applicant submits that he has used his time in prison to reform himself and that the risk of further offending is low enough that I could not be satisfied that he currently represents a danger to the Australian community.
In order to assess these claims, it is appropriate to consider:
(a)The role drugs played in the original offending and whether I can be satisfied that the applicant has ceased using addictive drugs and has good prospects of remaining clean once released into the community;
(b)Whether I can be satisfied that the applicant’s brother was a significant influence in causing the applicant to offend and, if so, whether his brother will play a significant role in his life when he is released from prison;
(c)Whether the applicant’s views in respect of how women should be treated have altered since he engaged in the conduct described above in relation to his then girlfriend;
(d)Other material which addresses the question of the likelihood of the applicant re-offending if released into the community.
If it is unlikely that there will be a repeat of the violent conduct in which the applicant has engaged in the past, then I could not consider the applicant to be a danger to the community.
Applicant’s history of drug use
In his evidence before the Tribunal the applicant described his history of drug use in the following terms. He began smoking marijuana in 2012 when he was 17. By 2013, he was smoking marijuana on a daily basis. In 2013 he was in an on again/off again relationship with a fellow student and on one occasion when they broke up, he was feeling down and went on a trip to Sydney. There were people there smoking ice and he decided to try it. Initially the applicant could control his usage and restricted it to weekends, but he soon lost control of his usage of it and, to use his words ‘it was controlling [him]’. The applicant’s brother was using ice and so was his girlfriend. At the time the applicant was living at home with his mother who became concerned that he was using drugs and confronted him about it. The applicant told his mother that he was not using drugs.
Immediately prior to the commission of the offence in March 2016 the applicant had smoked ice for four days straight. He had also been gambling and he and his brother had lost all their money. His brother came up with the idea of robbing sex workers so they could get more money for drugs and gambling.
When the applicant was arrested and remanded in custody in 2016 he initially stopped using drugs, but resumed using them two months after his arrest. He began with sleeping tablets but then resumed using methamphetamine. However, by the end of 2016 he had decided that methamphetamine was not a drug he ever wanted to use again. During the Christmas period in 2016 the applicant began injecting illicitly obtained Buprenorphine – an opioid used to treat addiction to heroin. This drug use led to a number of disciplinary issues in the prison including a refusal to undertake a urine test.[16] The applicant freely admitted when questioned about this by the Tribunal that he refused to submit to the test because he knew he had illicit drugs in his system. A syringe was subsequently found in his cell in May 2017 and he gave a urine sample which was positive for drugs. He tested positive for drugs again on 15 March 2019. The applicant at some point was able to get off the use of drugs but when he was moved to what is called ‘the cottage’, a lower security environment within the prison, he resumed using buprenorphine.[17] In 2019, he was able to get on the methadone program but did not find it to be of assistance. He switched in 2020 to a program of authorised use of buprenorphine with a view to getting off drugs entirely. By November 2020 the applicant had weaned himself off the use of buprenorphine and has been off drugs since that time.
[16] Exhibit 1, p 88.
[17] Exhibit 1, p 98.
The applicant has now been clean for six months. I was impressed by how candid the applicant was with the Tribunal about his drug use in prison and how determined his attempts to get clean were. The applicant has managed to eliminate drug use from his life. He deserves to be congratulated for that. The more difficult question is whether, when the applicant is released into the community and suffers set-backs in his life, as everyone does, he will be able to resist returning to drugs. This is an important question to answer because the applicant when he is using drugs has seriously impaired judgement and is likely to commit both property crimes and violent crimes including sexually violent crimes.

I am satisfied that the applicant will have a lifelong vulnerability to falling into drug use. He has been a significant user in the past, he has family and friends who use (although I note that he has indicated that he has no intention of socialising with such people again) and he has used drugs in prison which is a very controlled environment where it requires concerted efforts to obtain and hide drug paraphernalia in order to use.
Notwithstanding the applicant’s stated desire not to use drugs and not to associate with people who use drugs, there remains a significant risk that following his release the applicant he will lapse into drug use at some point in his life. He has freed himself from drugs for periods in the past and lapsed back into use. If that occurs, the community will be at an imminent risk of the applicant engaging in serious violent criminal behaviour.
I accept that it is his intention not to resume contact with his former friends and to focus on his family and his Islamic faith, but there remains a significant risk that the applicant will be unable to fulfil that intention in the long term. This contributes to my assessment that the applicant is a danger to the community.
The influence of the applicant’s brother
The applicant during and since his criminal sentencing has placed significant emphasis on the role his older brother played in his criminal offending. He claims that he is now no longer under that influence and will be entirely free of that influence in the future because his brother will be removed from Australia following his release from prison.
There are two difficulties with this narrative. First I do not accept that the applicant’s brother played as big a role in his drug use and 2014 criminal offending as the applicant would have people believe.
In relation to the applicant’s drug use I am satisfied that the initial use of marijuana developed in the context of school peers and that the use of ice was at least as much the product of the influence of peers as it was the applicant’s brother. While K was present when the applicant began to use initially, the account that the applicant gave was of multiple users being present when he decided, for emotional reasons, to try the drug. While I am sure that the bulk of the applicant’s later drug use was in company with his brother, its origins are more complex than the applicant having an inappropriate role model.
In relation to the 2014 criminal offending, the sexual assault on the applicant’s girlfriend appears to be almost entirely independent of the applicant’s brother’s influence. He was not present when the assault occurred, there is no evidence that the applicant’s brother urged him to do it – indeed the evidence points in the opposite direction. It was the applicant’s own deluded ideas about what his girlfriend wanted which led to the assault.
While I do accept that the applicant’s brother played some role in both his drug use and the 2014 offences,[18] that role was not so great that I could accept that in the absence of his brother the applicant will not be drawn to drug use or inappropriate sexual conduct.
[18] Exhibit 2, T10, folios 801-813.
Further, I was not completely satisfied that the applicant had removed himself from his brother’s influence and rejected the ideas which he stood for. It is clear that the applicant had ongoing contact with his brother in prison. From the evidence the applicant gave it became clear that he was regularly in company with his brother including during telephone conversations with his mother, at Friday prayers and at weekly meals. Further, prison records showed that in April 2017 he assisted his brother to assault a prisoner with whom his brother had a disagreement and then lied to cover-up what had occurred.[19]
[19] Exhibit 4, Attachment B.
While I accept that on release it is likely that the applicant’s brother will be deported from Australia, eliminating him as a day to day influence on the applicant, it is also clear that there has been no decisive break from the influence of his brother which would suggest a fundamental rejection of the influences in the applicant’s life which led him into drug use and sexual violence. Accordingly I am neither satisfied that the applicant’s brother was the key influence that led to his criminality, nor that the applicant has rid himself of his brother’s influence.
Changes in attitudes to women
The applicant attributes the sexual assault which took place in 2016 to the use of methamphetamines continuously over a number of days resulting in him not being in his ‘right mind’. Essentially the applicant claims that if he is not under the influence of drugs then he is unlikely to commit similar offences in the future provided he stays off drugs.
I do not accept that the situation is so straightforward. Not all of the applicant’s offending can be attributed to him not being in his right mind as a consequence of drug use. The applicant’s conduct in relation to his girlfriend in 2014 and 2015 does not fall into that category. Although the applicant was under the influence of methamphetamine and marijuana when the sexual offences were committed, the applicant has consistently expressed the view that what occurred was the product of a genuine belief as to what his girlfriend wanted as opposed to some misguided act induced by powerful and addictive drugs. The sexual assault was primarily the product of a distorted understanding of what his girlfriend would want in a sexual relationship. Similarly, the assault following the telephone passcode incident in late 2015 did not appear to be the product of the influence of drugs but simply an assertion of physical power while the applicant was angry.
Both incidents raise serious concerns that the applicant will be an ongoing danger to any intimate partner with whom he forms a relationship. Accordingly I would need to be satisfied that the applicant had significantly reformed since these events before releasing him into the community. Unfortunately it is difficult to reach such a conclusion with confidence.
The applicant has been incarcerated since 2016 so it has not been possible to gather evidence on how the applicant would conduct himself in the community. In his own evidence the applicant struggled to explain the incidents with his girlfriend. He freely admitted that the 2014 incident was the ‘worst way to do things’. He said that he is thinking clearly now and can see that it is immoral and that now he would not even want to do it. In relation to the 2015 incident the applicant explained that at the time he was really angry and he could not control himself to back off.
In submissions his representative highlighted that the applicant now has an understanding that he had an anger management problem and the evidence suggests that that has dealt with that in the jail system by undertaking an appropriate course. The applicant submits that there is no evidence that anger is an ongoing problem.
That is a fair reflection of the evidence as it stands today but does not necessarily answer the question of whether the applicant will pose a danger to the community upon release. I am satisfied that there was a point in time when, irrespective of drug use, the applicant posed a danger to his intimate partner. The source of the danger was the applicant’s character and personality. The applicant himself described ‘…unhealthy intimate sexual relationships as an adolescent were additional factors leading to his sexual offending’.[20] It is true that the applicant has taken steps to address the causes of the problem while in prison, but whether those steps have been successful remains unknown. What is known is that the applicant has a demonstrated capacity for violence and sexual violence with an intimate partner.
Evidence on Likelihood of Re-Offending
[20] Exhibit 4, Attachment A, 3.
The sentencing judges both expressed views on the applicant’s prospects for rehabilitation. Justice Burns assessed the applicant as having reasonable prospects for rehabilitation. I have had regard to that assessment, noting Justice Burns did not have as full an appreciation of the applicant’s conduct prior to incarceration as the one I have gained from questioning the applicant and reviewing police reports.
In October 2017 the applicant was assessed for suitability for inclusion in the ACT Corrective Services Adult Sex Offender Program (ASOP). A recommendation was made that the applicant undertake the program. As part of the process for determining whether he was an appropriate candidate for an ASOP, and the intensity of the program to which he should be subject, standardised psychological tests were administered to determine whether he was a recidivism risk. He was assessed as a ‘moderate – high risk of sexual recidivism’.[21] The applicant was assessed using two different Risk Assessment tools which measure the risk of recidivism: Static 99, which is a tool specific to sex offenders, and LSI-R, which is a more general tool. For reasons which are not entirely clear the applicant did not enter the ASOP at that time.
[21] Exhibit 1, 50.
He was re-assessed in October 2019. Three risk assessment tools were utilised on that occasion – LSI-R, which assessed his recidivism risk as ‘Medium’, Static 99 which assessed his recidivism risk as ‘Moderate-High’ and Stable-2007 which assessed his risk as ‘Moderate’.
The applicant completed the program entitled ‘New Beginnings Pathfinder (Moderate)’ on 12 June 2020 having commenced it on 29 October 2019.
After completion of the course an exit report was prepared which showed the scores which the applicant obtained in the Static 99R and Stable-2007 tools when he entered the course. Both tools are designed for use with sex offenders and use standardised psychological tests. Static 99R relies on the static level of risk of re-offending (ie risk factors which are unchangeable) while Stable-2007 considers factors which are generally stable but capable of being changed. The applicant’s score using Static 99R was 5, which is described in the exit report as an ‘above average’ risk of recidivism (and just below the highest classification of well above average). A score of 5 seems to be more conventionally described in the literature as moderate-high.[22] His assessed risk using Stable-2007 was scored at 8 which reflects a moderate risk of recidivism (and is just below the highest category which is ‘High’).
[22] See, for example, Hanson et al, ‘Assessing the risk of sexual offenders on community supervision: the Dynamic Supervision Project’ (2007) Public Safety Canada, 7.
The meaning of these scores is elaborated on in a document entitled ‘Assessing the risk of sexual offenders on community supervision: The Dynamic Supervision Project’. That document explains the tests administered in the following terms:[23]
Over the past 10 years psychology has developed techniques to reliably sort male sexual offenders into low, moderate and high risk for sexual recidivism…based upon historical, static, non-changeable risk factors. The “static structure of these tests effectively precludes their ability to measure changes in risk. The Stable-2007 [which is the test in which the applicant scored an 8] and the ACUTE-2007 [which is a test the applicant did not take] are specialized tools designed to assess and track changes in risk status over time by assessing changeable “dynamic” risk factors. “Stable” dynamic risk factors are personal skill deficits, predilections, and learned behaviours that correlate with sexual recidivism but that can be changed through a process of “effortful intervention”. Should “effortful intervention” (read: treatment or supervision) take place in such a way as to reduce these risk-relevant factors there would be a concomitant reduction in the likelihood of sexual recidivism.
[23] Ibid, i-ii.
The applicant was given these tests at the start of the ASOP for the purposes of determining which intensity of course he should be enrolled in. It was not administered for the purpose of determining his risk of recidivism. The two tests do, however, seem to have some predictive value on the likely recidivism of sexual offenders.
The Annexures to the Assessing Risk document provide a means of combining the results from the Static-99 test and the Stable-2007 test. The Moderate-high categorisation which the applicant obtained on the Static-99 when combined with the Moderate categorisation the applicant obtained on the Stable-2007 gives a combined categorisation of Moderate-high. [24]
[24] Ibid, appendix 2.
The document never explains the extent to which this categorisation translates into a specific percentage risk of committing a further offence but the descriptive classification suggests that the risk is one of substance even if it is not more probable than not that a further offence will be committed.
I do however approach results with some caution. The test was administered for a very limited purpose, and was conducted in the artificial prison environment, rather than in the circumstances which the applicant will face upon release. This limits the utility of the Stable-2007 test in particular. For example, one of the risk factors which the Stable-2007 test examines are Significant Social Influences. What these will be for the applicant when he is released into the community could change for the better or for the worse depending on how he ultimately settles into the community. Accordingly, I am not prepared to put much store on the results of the Stable-2007 test in this case.
It is sufficient to note that the applicant’s static risk of re-offending is described as above average,[25] in a cohort which consists entirely of sex offenders. This is highly relevant to assessing whether the applicant is a danger to the community.
[25] Exhibit 1, 180.
The Applicant contends that the Exit Report of July 2020 is a serious and balanced appraisal of his progress towards rehabilitation. He contends that since the report was prepared, he has continued to grow in maturity and commitment to living a life of productivity and responsibility if his visa is granted. I accept that the report says many positive things about the way the applicant has conducted himself in prison and many positive things about his participation in the ASOP. The report however also notes some risk factors which have not been addressed. The report notes as follows:[26]
When reflecting on risks, [the applicant] identified his main risks were drugs and alcohol, mood states such as loneliness and a lack of prosocial networks.
[26] Exhibit 4, Attachment A.
While the applicant has taken steps to address his problems with drugs, there is no obvious cause for optimism that the applicant’s psychological and social condition will have improved upon his release. The absence of any witness to support his cause emphasised that the absence of pro-social networks remained a continuing source of risk.
The applicant contends that the Tribunal should place great weight on the Exit Report as evidence that he has worked hard to rehabilitate himself. Further, the fact that he met the objectives of all eight modules of the course to a “good” or “excellent” standard should weigh heavily in his favour.
While I accept that the applicant has worked hard on his rehabilitation, the fact remains that the report provides an assessment of the applicant’s static and unchangeable risk of re-offending as above average within the cohort of sex offenders. While the applicant’s efforts to improve himself are laudable, the size of the risk identified is significant in any consideration of whether the applicant is a danger to the community.
Conclusion
As noted at paragraph ‎16, matters which assist in determining whether the applicant is a danger to the community are:
(a)The seriousness and nature of the crimes committed;
(b)The length of the sentence imposed;
(c)Any mitigating or aggravating circumstances;
(d)The extent of the criminal history and the nature of the crimes;
(e)The risk of re-offending and lapsing into crime and the prospect of rehabilitation
(f)The character of the person; and
(g)The possibility or probability of any threat posed.
In relation to factors (a) to (d), my assessment is as follows. The crimes the applicant committed are objectively very serious. Sexual assaults where the victim’s acquiescence was secured by the use of a weapon are very serious crimes. Releasing a person into the community who is capable of such crimes poses a prima facie danger to the community. The lengthy sentences imposed on the applicant reflect the seriousness of the crimes of which he was convicted and the aggravating circumstances in which they occurred. The violent and sexual nature of the crimes against vulnerable women emphasise that the applicant has at least in the past posed a danger to the community. The fact that the crimes were committed two years apart makes it difficult to regard the applicant’s crimes as the result of a unique set of circumstances that are unlikely to arise again in the future.
The remaining factors, (e), (f) and (g) all go to the question of the risk of recidivism.
On the one hand, the applicant’s concerted and successful efforts to free himself from drugs while in prison are admirable and worthy of serious consideration as a sign that he is a changed man who does not pose a risk to the community.
However, there are many factors which point to the risk of the applicant relapsing.
First there are the risk factors which the applicant acknowledges. He has succumbed to both drug addiction and gambling addiction in the past and struggled to remain drug free even in the highly controlled environment of prison. The evidence suggests that he is easily influenced to make poor choices. Life in the community will inevitably throw up temptations and the applicant has exhibited very little capacity to resist lapsing into anti-social behaviour. He will carry this weakness with him back into the community on release.
Second, he remains in regular contact with his brother. He has repeatedly claimed that it is the bad influence of his brother that led him to commit heinous crimes which he would not have done if he had not been under that influence. If the applicant truly is as ashamed of his crimes as he claims, then a more definitive break from his brother would be expected given the leading role that his brother played in planning the 2016 crimes and the violence which his brother was prepared to deploy while prosecuting what were meant to be just robberies.
Third, the psychological testing of the applicant indicates that the static unchangeable factors in the applicant’s background mean that notwithstanding his rehabilitation efforts he remains a moderate-high risk of re-offending. It is not possible or appropriate[27] to convert this assessment into a numerical probability of the applicant re-offending, but it indicates that the risk of re-offending is significant and regardless of what efforts are made following the applicant’s release from prison the risk will remain.
[27] See the comments of Justice Logan at DOB18 at [87].
In determining this matter, I am conscious that I am making a decision about the applicant’s conduct not just in the short term but for the entire period in which he could live in the Australian community. I have no doubt that the applicant’s statements about his desire to live a blameless life going forward are genuine, and that he is ashamed of his crimes and hopes never to repeat them. His words are I am sure a sincere reflection of a genuine desire to behave better in the future. But notwithstanding that conscious desire, his past behaviour suggests that if the applicant gets angry or slips into drug use, then violence and sexual violence may well be the result. Accordingly, the applicant does pose a danger to members of community going forward and intimate partners in particular.

In these circumstances I do consider that the applicant is a danger to the Australian community and accordingly he does not meet the criterion for a protection visa specified in paragraph 36(1C)(b). A necessary corollary of that conclusion is that the applicant does not meet the complementary protection criteria as a consequence of sub-paragraph 36(2C)(b)(ii).
The decision under review is affirmed.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

............................[sgd]............................................
Associate
Dated: 11 June 2021

Date of hearing: 25 and 26 March 2021