Benbrika v Minister for Home Affairs

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0003

ABDUL NACER BENBRIKA	Appellant
v
MINISTER FOR HOME AFFAIRS	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	26 and 27 October 2021
DATE OF JUDGMENT:	9 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 303
JUDGMENT APPEALED FROM:	[2020] VSC 888 (Tinney J)

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CRIMINAL LAW – Offences and other matters relating to terrorism – Appeal – Continuing detention orders – Appeal against imposition of continuing detention order – Whether primary judge erred in being satisfied to high degree of probability that terrorist offender posed unacceptable risk of committing serious Part 5.3 offence if released into community – Whether primary judge erred in not identifying specific serious Part 5.3 offence – Whether primary judge erred in being satisfied that no less restrictive measure than continuing detention order would be effective in preventing unacceptable risk – Whether primary judge erred in not exercising residual discretion not to make continuing detention order – Criminal Code (Cth), Part 5.3, div 105A, ss 105A.7 and 105A.8 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Star QC with Mr C Tran and Ms N Wootton	Doogue & George Lawyers
For the Respondent	Mr A Berger QC with Mr M Hosking and Ms A Lord	Australian Government Solicitor

BEACH JA
McLEISH JA
KENNEDY JA:

In December 2008, following a trial, the appellant was found guilty of intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Criminal Code (Cth) (‘the Code’) and intentionally directing the activities of a terrorist organisation contrary to s 102.2(1) of the Code. On 3 February 2009 he was sentenced to a total effective sentence of 15 years’ imprisonment, with a non-parole period of 12 years. The appellant’s sentence expired on 5 November 2020.

Division 105A of the Code empowers the Supreme Court of a State or Territory, on the application of the Minister for Home Affairs (‘the Minister’), to make a continuing detention order (‘CDO’) requiring a person who has been convicted of a terrorist offence to be detained in prison for a further period after the expiration of his or her sentence of imprisonment. To make a CDO, the Court must be satisfied of the matters set out in paragraphs (a) to (c) of s 105A.7(1) of the Code, namely:

(a) an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and
(b) after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and
(c) the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

On 24 December 2020, following an eight day hearing, the primary judge (Tinney J) made a CDO in relation to the appellant commencing on 24 December 2020 and expiring on 23 December 2023.

Pursuant to s 105A.17 of the Code,[1] the appellant now appeals against the CDO made by the primary judge. In summary, the appellant contends that his Honour:

·erred when applying s 105A.7(1)(b) of the Code because he failed to identify and analyse which ‘serious Part 5.3 offence’ or offences the appellant was an unacceptable risk of committing (ground 1);
·erred in being satisfied under s 105A.7(1)(b) that the appellant posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community, because such an unacceptable risk was not established to a high degree of probability by the admissible evidence (ground 2);
·erred in being satisfied under s 105A.7(1)(c) that there was ‘no other less restrictive measure that would be effective in preventing the unacceptable risk’ (ground 3); and
·erred in declining to exercise the residual discretion under s 105A.7(1) to refuse to make a CDO in circumstances where the appellant could be removed from Australia under s 198 of the Migration Act 1958 (Cth) (ground 4).
[1]Which provides a right of appeal ‘by way of rehearing’ (see s 105A.17(2) of the Code).

Serious Part 5.3 offences and div 105A of the Code

Division 105A was enacted by the Criminal Code Amendment (High Risk Terrorist Offenders) Act2016 (Cth) and has as its object:

to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community.[2]

[2]See s 105A.1 of the Code.

A CDO may only be made with respect to a ‘terrorist offender’. Section 105A.3(1) sets out the attributes of a terrorist offender. The appellant is a terrorist offender because he has been convicted of a ‘serious Part 5.3 offence’,[3] being an offence against Part 5.3 of the Code, the maximum penalty for which is seven or more years of imprisonment.[4]
[3]See s 105A.3(1)(a)(iii) of the Code.
[4]See s 105A.2 of the Code.

Part 5.3 of the Code enacts offences involving ‘terrorist acts’ and offences involving ‘terrorist organisations’. Terrorist acts are actions, or threats to take actions, that cause serious physical harm to a person; or serious damage to property; or which cause a person’s death; or which endanger a person’s life, other than the life of the person taking the action; or which create a serious risk to the health or safety of the public, or a section of the public; or which seriously interfere with, seriously disrupt or destroy an electronic system. The action or threat of action must be carried out, or threatened, with the intention of advancing a political, religious or ideological cause and coercing or influencing by intimidation a government or intimidating the public or a section of the public.[5]
[5]See the definition of ‘terrorist act’ in s 100.1(1) of the Code.

Serious Part 5.3 offences involving terrorist acts include engaging in a terrorist act;[6] providing or receiving training connected with a terrorist act;[7] possessing things connected with a terrorist act;[8] collecting or making documents connected with preparation for, the engagement of a person in, or assistance in a terrorist act;[9] doing an act in preparation for, or planning, a terrorist act;[10] providing or collecting funds reckless as to whether the funds would be used to facilitate or engage in a terrorist act;[11] and making funds available to another person or collecting funds for, or on behalf of, another person and being reckless as to whether the other person will use the funds to facilitate or engage in a terrorist act.[12]
[6]Section 101.1(1) of the Code.
[7]Sections 101.2(1) and (2) of the Code.
[8]Sections 101.4(1) and (2) of the Code.
[9]Sections 101.5(1) and (2) of the Code.
[10]Section 101.6(1) of the Code.
[11]Section 103.1(1) of the Code.
[12]Section 103.2(1) of the Code.

A ‘terrorist organisation’ is an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act, or certain organisations that are specified as terrorist organisations in the regulations.[13]
[13]See the definition of ‘terrorist organisation’ in s 102.1(1) of the Code.

Serious Part 5.3 offences involving terrorist organisations include directing the activities of a terrorist organisation;[14] being a member of a terrorist organisation;[15] recruiting a person to join, or participate in the activities of, a terrorist organisation;[16] providing or receiving training to or from a terrorist organisation;[17] receiving funds from, or making funds available to, or collecting funds for, or on behalf of, a terrorist organisation;[18] and providing support or resources to a terrorist organisation.[19]
[14]Sections 102.2(1) and (2) of the Code.
[15]Section 102.3(1) of the Code.
[16]Sections 102.4(1) and (2) of the Code.
[17]Sections 102.5(1) and (2) of the Code.
[18]Sections 102.6(1) and (2) of the Code.
[19]Sections 102.7(1) and (2) of the Code.

Section 105A.3(2) provides that the effect of a CDO is to commit the offender to detention in a prison for the period the CDO is in force. An application for a CDO may only be made within 12 months before the end of the offender’s sentence or, if a CDO is in force, the application may not be made more than 12 months before the end of the period for which the order is in force.[20]
[20]See s 105A.5(2) of the Code.

Section 105A.6 of the Code deals with the appointment of relevant experts for the purpose of assessing the risk of an offender committing a serious Part 5.3 offence if the offender is released into the community. An expert who is appointed must conduct an assessment of this risk and provide a report of the expert’s assessment to the court and the parties.[21] Section 105A.6(7) provides that the expert’s report may include any one or more of the following matters:
[21]See s 105A.6(4) of the Code.

(a)the expert's assessment of the risk of the offender committing a serious Part 5.3 offence if the offender is released into the community;
(b)reasons for that assessment;
(c)the pattern or progression to date of behaviour on the part of the offender in relation to serious Part 5.3 offences, and an indication of the nature of any likely future behaviour on his or her part in relation to serious Part 5.3 offences;
(d)efforts made to date by the offender to address the causes of his or her behaviour in relation to serious Part 5.3 offences, including whether he or she has actively participated in any rehabilitation or treatment programs;
(e)if the offender has participated in any rehabilitation or treatment programs — whether or not this participation has had a positive effect on him or her;
(f)any relevant background of the offender, including developmental and social factors;
(g)factors that might increase or decrease any risks that have been identified of the offender committing a serious Part 5.3 offence if the offender is released into the community;
(h)any other matters the expert considers relevant.

Sections 105A.7 and 105A.8 are the central provisions concerning the making of a CDO. Those sections provide:

105A.7 Making a continuing detention order
(1)A Supreme Court of a State or Territory may make a written order under this subsection if:
(a)an application is made in accordance with section 105A.5 for a continuing detention order in relation to a terrorist offender; and
(b)after having regard to matters in accordance with section 105A.8, the Court is satisfied to a high degree of probability, on the basis of admissible evidence, that the offender poses an unacceptable risk of committing a serious Part 5.3 offence if the offender is released into the community; and
(c)the Court is satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.

(2)Otherwise, the Court must dismiss the application.

Onus of satisfying Court
(3)The Attorney-General bears the onus of satisfying the Court of the matters referred to in paragraphs (1)(b) and (c).

Period of order
(4)The order must specify the period during which it is in force.
(5)The period must be a period of no more than 3 years that the Court is satisfied is reasonably necessary to prevent the unacceptable risk.

Court may make successive continuing detention orders
(6)To avoid doubt, subsection (5) does not prevent a Supreme Court of a State or Territory making a continuing detention order in relation to a terrorist offender that begins to be in force immediately after a previous continuing detention order in relation to the offender ceases to be in force.
105A.8Matters a Court must have regard to in making a continuing detention order
(1)In deciding whether the Court is satisfied as referred to in paragraph 105A.7(1)(b) in relation to a terrorist offender, a Supreme Court of a State or Territory must have regard to the following matters:
(a)the safety and protection of the community;
(b)any report received from a relevant expert under section 105A.6 in relation to the offender, and the level of the offender's participation in the assessment by the expert;
(c)the results of any other assessment conducted by a relevant expert of the risk of the offender committing a serious Part 5.3 offence, and the level of the offender’s participation in any such assessment;
(d)any report, relating to the extent to which the offender can reasonably and practicably be managed in the community, that has been prepared by:
(i)the relevant State or Territory corrective services; or
(ii)any other person or body who is competent to assess that extent;

(e)any treatment or rehabilitation programs in which the offender has had an opportunity to participate, and the level of the offender’s participation in any such programs;
(f)the level of the offender’s compliance with any obligations to which he or she is or has been subject while:
(i)on release on parole for any offence referred to in paragraph 105A.3(1)(a); or
(ii)subject to a continuing detention order or interim detention order;

(g)the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence referred to in paragraph 105A.3(1)(a);
(h)the views of the sentencing court at the time any sentence for any offence referred to in paragraph 105A.3(1)(a) was imposed on the offender;
(i)any other information as to the risk of the offender committing a serious Part 5.3 offence.

(2)Subsection (1) does not prevent the Court from having regard to any other matter the Court considers relevant.
(3)To avoid doubt, section 105A.13 (civil evidence and procedure rules in relation to continuing detention order proceedings) applies to the Court’s consideration of the matters referred to in subsections (1) and (2) of this section.

Section 105A.13(1) provides that, subject to s 105A.13(2), in determining an application for a CDO, the court is required to ‘apply the rules of evidence and procedure for civil matters’. Relevantly, s 105A.13(2) provides that despite anything in those rules of evidence and procedure, the court may receive evidence of ‘the offender’s history of any prior convictions for, and findings of guilt made in relation to, any offence’.

The appellant’s offending

On 15 September 2008, the appellant was convicted of two terrorist offences. The offences were alleged to have occurred between July 2004 and November 2005. The first offence involved the intentional membership of a terrorist organisation knowing that the organisation was a terrorist organisation, contrary to s 102.3(1) of the Code. This offence has a maximum penalty of imprisonment for ten years. The second offence involved intentionally directing the activities of a terrorist organisation knowing the organisation to be a terrorist organisation, contrary to s 102.2(1) of the Code. This offence has a maximum penalty of imprisonment for 25 years. Each offence is a ‘serious part 5.3 offence’.

The Crown case against the appellant at his criminal trial was that he was a member of a Melbourne-based terrorist organisation that was fostering or preparing the doing of a terrorist act in Australia or overseas, with the intention of causing death or serious physical harm in order to advance a political, religious or ideological cause. The proposed terrorist act was alleged to be the intentional detonation of one or more explosive or incendiary devices, or the use of weapons. The cause to be advanced by terrorist action was said to be the belief — taught by the appellant and accepted by members of the organisation — that they were under a religious obligation to pursue violent jihad against the kuffar (non-believers).[22]
[22]Benbrika v The Queen (2010) 29 VR 593, 601 [5].

At the time of the appellant’s offending, he had a zealous or fanatical belief in an ideology which sought to promote itself by the use of violence, which he imparted to his younger associates. The appellant used the term ‘jihad’ in many of the 482 intercepted conversations that were before the jury on his trial. The meaning that he attributed to ‘jihad’ was a violent struggle against the enemies of Islam, the kuffar. He claimed that this was the only meaning of jihad authorised by the Koran. He not only asserted that the only meaning of jihad was fighting the kuffar, but also that it equated to what the kuffar called ‘terrorism’. The appellant explained the concept of jihad in the Islamic cause as involving violence towards those, including governments, who were considered to be resisting the expansion of Islam and the adoption of Shariah law (which he referred to as ‘Allah’s law’) in Australia.

At the time of sentence (February 2009), the appellant had not renounced his commitment to violent jihad and hence to terrorism.

The primary judge described the facts of the appellant’s offending in some detail.[23] In summary, the appellant was born in Algeria in 1960 and emigrated to Australia in 1989, at the age of 29. He was a qualified aviation engineer in Algeria, but never worked in that field in this country.
[23]Minister for Home Affairs v Benbrika [2020] VSC 888, [17]–[33] (‘Principal Reasons’).

The appellant taught at various mosques and Islamic organisations for a period until his attitudes to Islam and its practice brought him into conflict with other Muslims to such an extent that he was either excluded from or voluntarily desisted from those activities. The primary judge described the appellant giving classes to young men and then, outside classes, associating and forming a group with those who were to become his co-accused. The group (referred to as a ‘jemaah’), of which the appellant was the leader, existed under the appellant’s direction for the purpose of engaging in violent jihad — something which the appellant and the members of the jemaah regarded as an integral part of their religious obligations.

Financial contributions were made by members of the group to finance the activities of the jemaah, including those activities which made it a terrorist organisation. Funds were used for various purposes of the jemaah, although there was no evidence that any purchases of weapons or the like were made.

Hard and electronic copies of various extremist jihadi literature and media were viewed and circulated amongst members of the jemaah. This material included combat manuals, publications which contained recipes for making explosives, and diagrams showing how to make a timer for a bomb. Much of the material originated from extremist Islamic websites, upon which could also be viewed graphic footage showing the beheading of hostages.

The evidence at the appellant’s criminal trial established that the appellant regarded training as important. For example, on one occasion in September 2004, the appellant was shown expressing the view that training in the use of knives for attacking the kuffar was necessary. The appellant demonstrated to an unidentified male how a knife could be used to attack and kill a person, saying ‘You have to learn it’.

The case and the evidence before the primary judge

The Minister’s case before the primary judge was that the appellant posed an unacceptable risk of committing a number of serious Part 5.3 offences, either as a principal or pursuant to provisions of the Code extending criminal responsibility (namely ss 11.2 to 11.5 of the Code) if he were released into the community, including the types of offences he had previously committed.

As to the unacceptable risk of the appellant committing a serious Part 5.3 offence if released into the community, in his written opening to the primary judge, the Minister referred to the following serious Part 5.3 offences: s 101.1 (engaging in a terrorist act); s 101.2 (providing training connected with a terrorist act); s 101.4 (possessing things connected with a terrorist act); s 101.5 (collecting or making documents likely to facilitate a terrorist act); s 101.6 (doing an act in preparation for, or planning, a terrorist act); s 102.2 (directing the activities of a terrorist organisation); s 102.3 (membership of a terrorist organisation); s 102.4 (recruiting for a terrorist organisation); s 102.5 (providing or participating in training involving a terrorist organisation); s 102.6 (getting funds to, from, or for a terrorist organisation); s 102.7 (providing support to a terrorist organisation); and ss 103.1.1 and 103.2 (financing terrorism or a terrorist).

Before the primary judge, the appellant’s essential position was that the preconditions in s 105A.7(b) and (c) were not made out and the Minister’s application should be dismissed.

The Minister’s case before the primary judge consisted largely of affidavit material and reports. Specifically, the Minister tendered the following documents:

·An affidavit of Lisa Telford affirmed 2 September 2020. Ms Telford was from Australian Border Force and annexed records of the international travel movements of 19 known or suspected foreign fighters associated with the appellant.
·An affidavit of Kelly Michael Smith sworn 3 September 2020. Mr Smith was from the Federal Bureau of Investigation (‘FBI’) and annexed an FBI memorandum concerning an interview conducted with Jamil Choucair in Syria. Mr Choucair was one of a number of men who was a member of a group of men described by the Minister as ‘the Sydney cell’, each of whom had been convicted of terrorism offences and who, during the period of their offending, had ‘significant, close and concerning contact’ with the appellant. The Minister’s case was that members of the Sydney cell were taking spiritual guidance from the appellant and that he wielded significant influence on their thinking and on their conduct.
·An affidavit of Troy Kaizik sworn 1 September 2020. Mr Kaizik was from the Australian Passport Office, Department of Foreign Affairs and Trade, and his affidavit annexed correspondence sent to 12 individuals connected with the appellant concerning the cancellation or refusal of passports.
·An affidavit (redacted in part) of Scott Lee sworn 3 September 2020. Assistant Commissioner Lee (‘AC Lee’) was with the Counter Terrorism and Special Investigations Command of the Australian Federal Police (‘AFP’). The affidavit explained the ideology, aims and methods of Islamic State and the threat of domestic terrorism in Australia inspired by Islamic State. The affidavit also addressed the asserted lack of any effective, less restrictive measure than a CDO in preventing risk.
·A second affidavit of AC Lee sworn 27 November 2020. This affidavit concerned an application on behalf of the AFP for a control order against the appellant.
·An affidavit of Stephen Hildrew affirmed 3 September 2020. Mr Hildrew was an Australian Border Force officer within the Department of Home Affairs. His affidavit annexed documents in respect of Amer Haddara. Mr Haddara was one of the appellant’s co-offenders. He left Australia in October 2013, stating on his outgoing passenger card that he was travelling to Dubai and intended to stay overseas for 15 days. On 8 April 2017, the appellant was recorded on the prison telephone system speaking to Mr Haddara’s mother and discussing Mr Haddara’s overseas prison sentence and his welfare in prison in Lebanon.
·An affidavit of Jennifer Perrin affirmed 1 September 2020. Ms Perrin is the Director of the Commonwealth Parole Office (‘CPO’). Her affidavit provided information concerning the appellant’s parole assessments in the years 2017 to 2020, and annexed relevant documents.
·An affidavit of Jennifer Perrin affirmed 9 September 2020. This affidavit annexed a refusal of parole notice from 1 October 2020.
·An affidavit of Jennifer Hosking sworn 3 September 2020. Ms Hosking, Assistant Commissioner (Sentence Management), Corrections Victoria, explained arrangements made for the detention of the appellant under a CDO.
·An affidavit of Peter Fogarty sworn 3 September 2020. The affidavit of Acting Superintendent Fogarty, AFP, annexed transcripts of listening device conversations received in evidence at the appellant’s trial.
·Affidavits of interpreters sworn and affirmed 3 or 4 September 2020. Those affidavits annexed English translations of the appellant’s correspondence and telephone calls from prison.
·An affidavit of Frank Dumic sworn 4 September 2020. Mr Dumic, Acting Assistant Commissioner, Security and Intelligence Division, Corrections Victoria described and annexed records contained within the appellant’s prison file.
·A second affidavit of Mr Dumic sworn 14 September 2020. This affidavit described and annexed the appellant’s prison visitor logs, copies of correspondence and recordings of telephone calls made by the appellant.
·A third affidavit of Mr Dumic sworn 1 October 2020. This affidavit annexed lists of telephone calls made by the appellant in the period 2017 to 2020.
·An expert report of Charles Lister (redacted in part) dated 30 August 2020. Mr Lister, the director of the Countering Terrorism and Extremism in Syria programs in the Middle East Institute, Washington DC, described the role of individuals who are radicalisers or influencers in Islamic extremist related terrorism.
·An expert report of Adrian Gully (redacted in part) dated 2 September 2020. Dr Gully, an Arabic interpreter and academic experienced in Arabic and Islamic culture and history, described Islamic scholars and concepts.
·A second report of Dr Gully dated 23 September 2020. In this supplementary report, Dr Gully provided information about further Islamic texts.
·An affidavit of Michael Cruse sworn 2 September 2020. The affidavit of Inspector Cruse, from the Countering Violent Extremism Unit (‘CVEU’) of Victoria Police, described the appellant’s participation in the Community Integration Support Program (‘CISP’), about which we will say more below. Inspector Cruse’s affidavit also annexed notes of the appellant’s CISP sessions.
·A second affidavit of Inspector Cruse sworn 18 November 2020. This affidavit provided updated information about the appellant’s participation in CISP.
·An affidavit of Richard Feakes affirmed 4 September 2020. In this affidavit, Mr Feakes, First Assistant Secretary, Deputy Counter-Terrorism Coordinator, Department of Home Affairs, addressed matters relevant to the statutory preconditions for making a CDO. He annexed the sentence passed upon the appellant by Bongiorno J,[24] documents relating to the refusal of the appellant’s parole applications and material about enquiries made about the existence of information that might reasonably be regarded as supporting a finding that a CDO should not be made. In addition, he annexed letters sent to Khaled Sharrouf and Majed Raad notifying them of the cessation of their Australian citizenship. Mr Sharrouf was a member of the Sydney cell with whom the appellant had contact. Mr Raad was a co-offender of the appellant.
·A second affidavit of Mr Feakes affirmed 14 September 2020. This affidavit addressed arrangements made for the appellant’s accommodation and management under a CDO.
·A third affidavit of Mr Feakes affirmed 13 October 2020. This affidavit provided an update in relation to parole.
·An affidavit of Graeme Grosse sworn 25 November 2020. Mr Grosse, Commander of National Immigration Detention, Australian Border Force, explained certain matters in respect of immigration detention.
·Passport applications provided by the Department of Foreign Affairs and Trade pursuant to subpoena.
·A 174-paragraph statement of agreed facts dated 6 November 2020.

[24]R v Benbrika [2009] VSC 21 (‘Benbrika Sentence’).

The amount of documentary material tendered by the Minister was, to say the least, detailed and voluminous. In addition to tendering this material, the Minister called two experts: Ms Chelsey Dewson, a forensic psychologist who was engaged by the Minister to carry out a psychological assessment and risk assessment of the appellant; and Dr Kelly Mischel, a forensic psychologist, who had a role in treating the appellant since 2016, and who was also asked to carry out a risk assessment for the purpose of the Minister’s application.

The appellant tendered two reports (dated 18 October 2020 and 4 December 2020) from Professor Mohamad Abdalla AM, an expert in the field of Islamic studies. Additionally, the defendant called evidence from Dr Michael Davis, a consultant forensic psychologist, who was engaged to carry out a psychological assessment of the appellant in October 2020.

It is not feasible to set out in these reasons the detail of the vast array of evidence that was tendered before the primary judge. However, given the issues between the parties at first instance and on appeal, it is necessary to summarise the evidence of the appellant’s engagement in rehabilitation or treatment programs; some aspects of the appellant’s history concerning his applications for parole; the details of a control order made on 1 December 2020 by Besanko J in the Federal Court;[25] and the cancellation of the appellant’s Australian citizenship on 20 November 2020.
[25]Lee v Benbrika [2020] FCA 1723 (‘Benbrika Control Order’).

Engagement in rehabilitation or treatment programs

CISP was launched in 2010 and is Australia’s first prison-based terrorist disengagement program. It was specifically designed to address Islamic extremism. Within a correctional environment, CISP is delivered by the CVEU in partnership with Corrections Victoria (‘CV’) and religious leaders. Between 2010 and 2017, the religious partnership was with the Islamic Council of Victoria (‘ICV’). Since October 2017, the partner has been the Board of Imams Victoria (‘BOIV’).

In February 2012, the CVEU referred the appellant to CISP. The appellant participated in counselling sessions between February 2012 and August 2013. In July-August 2013, the appellant ceased participating in CISP and with its mentors, raising issues concerning his consent for the program.

Between July 2015 and February 2016, the appellant participated in clinical sessions with Ms Nicole Sakellaridis, Senior Clinician, Major Offenders Unit.

In August 2015, the Major Offenders Unit of CV referred the appellant to CISP. CISP attempted to identify a suitable imam to provide intervention to the appellant, but those attempts were unsuccessful.

Between February and March 2016, the appellant was re-assessed for his suitability for CISP. He was not referred to CISP.

Between 23 February 2016 and 28 September 2020, the appellant participated in clinical sessions with Dr Kelly Mischel.

In November 2017, the defendant was re-referred for engagement in CISP, following his parole refusal. He recommenced participation in May 2018. Since that time, the appellant participated in CISP regularly, often on a weekly basis.

Parole

The appellant’s non-parole period expired on 5 November 2017. On 1 November 2017 and in 2018, 2019 and 2020, the Commonwealth Attorney-General declined to grant the appellant parole.

About two weeks after the first refusal of parole, a case note by the Major Offenders Unit, CV recorded:[26]

[The appellant] explained that in 2014 he had found out some things that he needs help translating and to understand properly. He stated that he learnt that when a Muslim gets a visa or citizenship in another country they are required to protect the people of that country from harm. Therefore the country of his residence would be protected from any violence he would consider part of the ideology to inflict.

[26]See Minister for Home Affairs v Benbrika [2020] VSC 888, [52].

Control order

On 1 December 2020, the Federal Court (Besanko J) made an interim control order in relation to the appellant, which would operate only if the appellant were released from custody.[27] As the primary judge observed, the control order contained extensive and far-reaching conditions.[28] Having regard to the appellant’s submissions, under ground 3, concerning the efficacy of control orders as less restrictive measures than CDOs, to which we will come below, it is appropriate to describe fully the terms of the control order made on 1 December 2020. The control order:
[27]See Lee v Benbrika [2020] FCA 1723.
[28]Principal Reasons [338].

(a) required the appellant to wear a tracking device;
(b) required the appellant to remain at specified premises between 10 pm and 6 am each day;
(c) prohibited the appellant from being at certain specified areas (airports; ports; particular residences; prisons; and places in Australia, but outside Victoria), without the written permission of an AFP Superintendent;

(d) prohibited the appellant from leaving Australia;
(e) prohibited the appellant from engaging in a range of specified activities (for example, joining clubs or groups, forming prayer groups, transferring more than $500, speaking at functions, possessing weapons, sending mail except by registered or express post via Australia Post);
(f) prohibited the appellant from carrying out certain specified activities relating to documents concerning weapons and acts of violence;
(g) prohibited the appellant from renting, purchasing, or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne;
(h) prohibited the appellant from undertaking paid work without first notifying the AFP Superintendent in writing;
(i) prohibited the appellant from possessing or using, or causing any person to act on his behalf to possess or use certain articles or substances;
(j) prohibited the appellant from communicating or associating with, or attempting to communicate or associate with, directly or indirectly through a third party, certain kinds of persons and certain named individuals;
(k) prohibited the appellant from accessing or using, any mobile telephone device other than the one mobile telephone device provided to him by the AFP (and his use of the permitted mobile phone was subject to certain conditions);
(l) prohibited the appellant from causing or permitting another person to use or access the permitted mobile phone;
(m) prohibited the appellant from causing or permitting another person to use or access any mobile telephone device on his behalf;
(n) prohibited the appellant from altering or deleting any data, software or hardware stored on or utilised on the permitted mobile phone;
(o) prohibited the appellant from accessing or using any fixed or landline telephone or facsimile service other than one service that has been approved in writing by the AFP Superintendent for him to access or use;
(p) prohibited the appellant from causing another person to use or access any fixed or landline telephone or facsimile service on his behalf;
(q) prohibited the appellant from accessing or using, or causing any person to access or use on his behalf, any public telephone except in the case of an emergency and then subject to certain conditions;
(r) prohibited the appellant from accessing or using, or causing any person to access or use on his behalf, any satellite telephone service or UHF/VHF radio;
(s) prohibited the appellant from accessing or using, or causing any person to access or use on his behalf, any applications, computer programs, social media services, websites (other than certain permitted ones), internet based messaging service, email service, cloud or remote storage service, file sharing service, virtualisation software or encrypted storage services designed to, or which purports to, disguise or conceal any function of any application, and any audiovisual, voice and/or multimedia sessions over internet protocol networks, also called IP telephony, internet telephony, broadband telephony and broadband phone service without first obtaining the written permission of an AFP Superintendent to use that platform;
(t) prohibited the appellant from deleting any platforms, programs, software or data (including, but not limited to, software programs, messages, call logs, emails, and internet history) stored on or accessible from any device, or partitioning any drive;
(u) prohibited the appellant from accessing or using any internet service other than the one internet service provided to him by the AFP through his permitted mobile phone for him to access and use;
(v) prohibited the appellant from causing any other person to access or use on his behalf any other internet service;
(w) prohibited the appellant from accessing or using any email account other than an account that has been approved in writing by an AFP Superintendent, specifically a Gmail account, for him to access and use;
(x) prohibited the appellant from causing or permitting another person to use or access the permitted email account;
(y) prohibited the appellant from causing any other person to access or use on his behalf any email account;
(z) prohibited the appellant from accessing or using any computer or tablet device other than a computer or tablet device that has been approved in writing by an AFP Superintendent for him to access or use (and his use of the permitted computer or tablet device was subject to certain conditions);
(aa) prohibited the appellant from causing or permitting another person to access or use any computer or tablet device; and
(bb) required the appellant to consider, in good faith, participating in counselling or education relating to his psychological and physical wellbeing, with a suitably qualified professional, for at least 60 minutes per week.

Cancellation of citizenship

On 20 November 2020, the Minister determined to cancel the appellant’s Australian citizenship under s 36D(1) of the Australian Citizenship Act 2007 (Cth). From the time of the determination, the appellant ceased to be an Australian citizen. He remains a citizen of Algeria.

Under s 35(3) of the Migration Act 1958 (Cth) when his citizenship ceased, the appellant was taken to have been granted an ex-citizen visa, which is a permanent visa to remain in but not to re-enter Australia. That visa is subject to cancellation powers under the Migration Act 1958.

The primary judge’s principal reasons

At the commencement of the Principal Reasons, the primary judge noted that the object of div 105A is ‘to ensure the safety and protection of the community by providing for the continuing detention of terrorist offenders who pose an unacceptable risk of committing serious Part 5.3 offences if released into the community’. His Honour then immediately set out the definition of a ‘serious Part 5.3 offence’, saying that it ‘encompasse[d] a very wide range of terrorism offences’.[29]
[29]Principal Reasons [5].

His Honour then described and set out the relevant provisions in div 105A,[30] before setting out a brief procedural history of the appellant’s offending;[31] the facts of the appellant’s offending;[32] a description of the appellant’s conduct and progress in custody;[33] a description of clinical sessions involving the appellant, the appellant’s involvement in CISP and parole;[34] and the appellant’s visa status.[35]
[30]Ibid [6]–[10].
[31]Ibid [12]–[16].
[32]Ibid [17]–[33].
[33]Ibid [34]–[38].
[34]Ibid [39]–[77].
[35]Ibid [78]–[81].

Next, the judge identified and described the Minister’s evidence.[36] In the course of doing this, the judge summarised in great detail the reports and evidence of Ms Dewson[37] and Dr Mischel.[38]
[36]Ibid [82]–[219].
[37]Ibid [85]–[157].
[38]Ibid [158]–[219].

The judge observed that Ms Dewson carried out her assessment of the appellant in the knowledge that the Minister was contemplating an application under div 105A for a CDO, and that she was engaged as an independent expert to conduct an assessment of the risk of him committing a serious Part 5.3 offence if he were to be released into the community.[39] The judge noted that Ms Dewson interviewed the appellant via Webex for 3 hours and 15 minutes, and that an Algerian Arabic interpreter and the appellant’s legal representative were present.[40] The judge also noted that Ms Dewson considered a ‘vast volume of material from other sources’ relating to the appellant.[41] The judge recorded various opinions expressed by Ms Dewson including her assessment of the appellant as ‘a High risk of violent extremism’.[42]
[39]Ibid [85].
[40]Ibid [86].
[41]Ibid [87].
[42]Ibid [112] (emphasis in original).

With respect to Dr Mischel, the judge observed that she based her report on clinical sessions she had with the appellant since 23 February 2016, a number of his CISP sessions which she attended, a clinical interview with him on 11 June 2020, and a large volume of other material provided to her which she had set out in her report of 2 August 2020.[43] The judge also noted that Dr Mischel summarised the appellant’s progress in custody, including his interaction with CISP and in the clinical sessions which she conducted with him.[44] In summarising Dr Mischel’s evidence, the judge said:

She [Dr Mischel] noted that his [the appellant’s] refusal in CISP sessions to comment on controversial topics or global acts of terrorism mirrored his conduct during clinical sessions. He routinely justified such refusal on the basis that without knowing the groups or the context in which they had acted, he could not provide commentary.
When discussing the role and actions of Al Shabbab in Somalia, ‘Mr Benbrika stated that their actions were morally justified as they were enforcing Islamic practice and religiously motivated violence was justified’.
When asked if he would report terrorism activity if he were made aware of it:
Mr Benbrika indicated that his allegiance was to the Muslim people and he would not report acts of terror or violent extremism if he were made aware of them, despite the potential loss of life that could ensue. He quoted in response the Hadith of a companion of the Prophet that says, ‘An informant will not go to paradise’.[45]

[43]Ibid [160].

[44]Ibid [169].

[45]Ibid [170]–[172].

The primary judge recorded Dr Mischel’s opinion that ‘using a structured professional judgment approach, [the appellant] appears to fall within the high-risk category of committing a serious Part 5.3 offence’.[46] In terms of factors that might increase or decrease any risk the appellant posed, Dr Mischel said:

In consideration of Mr Benbrika’s offence history and current risk assessment, if returned into the community, likely risk scenarios could occur if he is in a position where he can mentor or provide religious instruction to other Muslims and encourage them to adopt more radicalised views of Islam. These views could include condoning or encouraging antigovernment sentiments and the use of violence to support jihad.[47]

[46]Ibid [191].

[47]Ibid [195].

The judge then identified the evidence called on behalf of the appellant, before summarising the evidence of the appellant’s principal witness, Dr Davis.[48] The judge observed that Dr Davis was a consultant forensic psychologist, engaged on behalf of the appellant to carry out a psychological assessment of him, and that Dr Davis was a highly qualified expert in the field of risk assessment.[49] The judge noted that Dr Davis conducted a very lengthy video-link interview with the appellant, a telephone interview with one of the CISP sheiks, a telephone conversation with the appellant’s wife and psychological testing which included the use of two risk assessment tools. He noted that Dr Davis also had access to a large volume of other material which had been provided to him.[50]
[48]Ibid [220]–[289].
[49]Ibid [222]–[223].
[50]Ibid [224].

The judge recorded Dr Davis’s evidence that the two tools he used in assessing risk were not designed to assess the risk of ‘violent extremism recidivism’.[51] The judge noted Dr Davis’s opinion that there ‘is currently no validated way of assessing the risk of recidivism for terrorism offences’.[52] The judge identified criticisms Dr Davis made in relation to the opinions of Ms Dewson and Dr Mischel, including that ‘to his [Dr Davis’s] mind, neither had defined what was meant by “high risk”’.[53] The judge quoted Dr Davis’s opinion:

[I]t is my opinion as an expert in risk assessment that it is not possible to place Mr Benbrika into a risk category for committing a serious Part 5.3 offence. Even if there was a validated tool for such an assessment, the base rate of recidivism is so low that the vast majority of even those deemed ‘high risk’ would not commit another offence. Moreover, there is nothing blatant in the information available to me that would indicate that Mr Benbrika is not one of the 97-98 percent of terrorism offenders who do not commit another such offence. There is certainly nothing to suggest that there is an imminent risk of such offending.[54]

[51]Ibid [245].

[52]Ibid.

[53]Ibid [255].

[54]Ibid [257].

In summarising the evidence of Dr Davis, the judge noted that the appellant’s apparent unwillingness to engage with CISP upon release was a ‘potential concern’;[55] as was the appellant’s ongoing desire to ‘proselytise in the community’.[56]
[55]Ibid [282].
[56]Ibid [283].

Next, the judge summarised the Minister’s case.[57] The judge noted that the Minister relied upon ‘the overall evidence, including the CISP material and the evidence of the two expert psychologists, in proof of the [four] fundamental propositions’ that lay at the heart of the Minister’s case, namely:

First, it is the case, and indeed is agreed between the parties, that the defendant has in the past adhered to an extreme Islamic ideology based on a conservative fundamentalist interpretation of Islam and a belief in violent jihad.
Secondly, there is no credible evidence to establish that the defendant no longer adheres to such an extreme ideology. Whilst he has asserted at various times following the first refusal of parole in 2017 that his views have changed, that assertion is not supported by the evidence, is a self-serving attempt to satisfy authorities that he should now be released, and should be rejected by the Court.
Thirdly, the defendant in the past actively promoted his extremist views and exerted an enormous and extremely dangerous radicalising influence on others. He led a terrorist organisation in Melbourne that was preparing to commit a terrorist act and was involved with a terrorist organisation in Sydney.
Fourthly, if the defendant is released from custody, he is likely to continue to exert a radicalising influence on others to commit serious terrorism offences and there is no alternative to a CDO that would be effective in preventing the unacceptable risk to the community that this would pose.[58]

[57]Ibid [290]–[349].

[58]Ibid [293]–[296].

After summarising the Minister’s case, the judge turned to the appellant’s case.[59] In summarising the appellant’s case, the judge noted the appellant’s submission that the Court was required to reach its decision on admissible evidence[60] and that the Minister was required to establish to a high standard that there was an unacceptable risk that the appellant would commit a serious Part 5.3 offence.[61]
[59]Ibid [350]–[386].
[60]Ibid [354].
[61]Ibid [355].

The judge noted the appellant’s submission that, even if the Court was satisfied of the matters in s 105A.7, there was still a discretion required to be exercised by the Court.[62] The appellant submitted that one of the matters that would militate against the discretion being exercised in favour of the Minister was the determination to cancel the appellant’s citizenship on 20 November 2020. The judge noted the appellant’s submission that the evidence in the case focused on the risk scenario of the appellant being free in the Australian community, and that there was no evidence which focused on the practical scenario of the appellant being resident in Algeria if he was deported or left Australia.[63]
[62]Ibid [356].
[63]Ibid.

In respect of the ‘no other less restrictive measure’ issue, the judge noted the appellant’s submission that there was an ‘evidentiary vacuum in respect of the deportation option, which was not the subject of specific assessment by [the Minister’s] experts’.[64] The judge also noted the appellant’s submission that the ‘extensive and comprehensive controls provided by the interim control order in place at the time of the hearing’ were a ‘less restrictive option which would be effective in controlling the risk posed by [the appellant]’.[65]
[64]Ibid [357].
[65]Ibid.

Having summarised the parties’ cases, the judge commenced his analysis by noting that he could only make a CDO if the three requirements of s 105A.7(1) were met. He then observed that there was no dispute about the requirement in paragraph (a).[66] He said it followed that there were two things which he needed to be satisfied about before the discretion to make a CDO would arise, namely:

First, I would need to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence if he is released into the community.
Secondly, I would need to be satisfied that there is no other less restrictive measure that would be effective in preventing the unacceptable risk.[67]

[66]Ibid [387].

[67]Ibid [388]–[389].

The judge then referred to the standard of proof,[68] before turning to what was required to be proved.[69] In the course of considering what was required to be proved, the judge said that he could not make a CDO unless satisfied to a high degree of probability of the unacceptable risk posed by the appellant, and that he was satisfied that there was no other less restrictive measure that would be effective in preventing the unacceptable risk.[70] The judge observed that this did not mean, however, that every item of evidence, or every aspect of the case, had to be established to a high degree of probability.[71] The judge noted that the case put by the Minister was, in part, a circumstantial one, and that what was required was that he be satisfied to the requisite standard of the case made on behalf of the Minister on all of the evidence.[72]
[68]Ibid [390]–[393].
[69]Ibid [394]–[396].
[70]Ibid [394].
[71]Ibid [395].
[72]Ibid [395]–[396].

The judge then considered relevant authorities concerning the meaning of ‘unacceptable risk’.[73] After referring to those authorities, the judge analysed the evidence and submissions made by the parties.[74] During the course of this analysis, the judge referred to relevant matters which he was required to have regard to pursuant to s 105A.8.
[73]Ibid [397]–[407].
[74]Ibid [408]–[462].

The judge then dealt with the question of whether the appellant posed an unacceptable risk, saying:

In considering this question, I have had regard to all of the matters to which I am required to have regard under s 105A.8(1) of the Code. I have considered all of the evidence before the Court, and the submissions made. Importantly, I have taken into account the assessments of risk carried out by each of Ms Dewson and Dr Mischel. I have had regard to the statements of authority as to the practical meaning of unacceptable risk.
At the conclusion of her submissions to the Court, [senior counsel for the Minister] submitted:
The plaintiff’s position is the defendant was at the time of his offending, and remains today committed to a violent extremist ideology, an ideology that justifies the use of violence in the name of religion. He was and is an influential leader who has no plans to stop teaching and proselytising his ideology. He has made no commitment to continue with the deradicalisation program in which he has participated in recent years if he is released into the community; a deradicalisation program of course in which he has failed to meet his treatment goals. The risk that he will, if released, radicalise others again or that he will guide and encourage people who are already radicalised to engage in acts of terrorism is real and extremely significant for the Australian community and we say it is clearly an unacceptable risk.

I accept those submissions. I am satisfied to a high degree of probability, on the basis of admissible evidence, that the defendant poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community.[75]

[75]Ibid [463]–[465] (footnote omitted).

Under the heading, ‘Is there any less restrictive measure that would be effective in preventing the unacceptable risk?’, the judge said that, after carefully considering the evidence and submissions touching on this question, he was satisfied there was no less restrictive measure that would be effective in preventing the risk posed by the appellant in this case.[76] In arriving at this conclusion, the judge analysed the three potential measures that he said were raised for consideration: namely, the prospect of 24-hour surveillance being carried out by police on the appellant; the use of a control order; and the cancellation of the appellant’s current visa leading to the prospect of him being deported to Algeria.[77]
[76]Ibid [466]–[469].
[77]Ibid [337], [467].

As to the prospect of 24-hour police surveillance, the judge concluded that this would be ‘so inadequate and unworkable as to not warrant the label of “measure”’.[78]
[78]Ibid [467]. See also the submission recorded at [341], accepted by his Honour at [469].

In rejecting the use of a control order, the judge accepted submissions made by the Minister that there are limitations on what a control order can achieve: it would not be capable of prohibiting the appellant from associating with all individuals who might seek him out or otherwise be susceptible to his influence; it would not be able to prevent the appellant attending at mosques and other places and practising his religion; it could not prohibit him from associating with members of his family who were ‘individuals of concern’; it would not prevent him from associating indirectly with people specified in the control order by using his family as a conduit; it could not prevent him from acquiring or distributing extremist material through other people including family members; it could not prohibit him from attending at all places in which he might covertly meet with people who might seek him out or be susceptible to his influence; and it could not prevent him from breaching its terms in a way which might be undetected. Additionally, even though the appellant would be the subject of tracking, that would not mean that the authorities would know what he had done at every location.[79]
[79]Ibid [339], [469].

In relation to the cancellation of the appellant’s ex-citizen visa, the judge accepted a submission that there was no evidence that this would actually occur. While the Court was required to take the matter into account as a potentially less restrictive measure, the measure remained hypothetical.[80]
[80]Ibid [342], [469].

As the judge put it, the control order and cancellation of visa measures possessed ‘some superficial attraction’.[81] His Honour said, however, that ‘when the overall circumstances of this case are considered, and the virtues and drawbacks of each of the proposed measures are weighed in the mix, it is apparent that neither measure would be effective in preventing the risk posed by [the appellant]’.[82]
[81]Ibid [468].
[82]Ibid.

Next, the judge dealt with the issue of discretion.[83] His Honour rejected a submission that the cancellation of the appellant’s citizenship was a matter which should lead the Court to decline to make a CDO.[84]
[83]Ibid [470]–[477].
[84]Ibid [472].

Finally, the judge concluded his reasons by saying:

Before I conclude, I consider it appropriate to return to a submission made by [senior counsel for the appellant] at the end of his final submissions to me in this case, in which he emphasised the serious step constituted by the making of a CDO. He said:
The power should only be used in very clear, and we would say, indeed blatant cases, and we say that this case is an unsatisfactory amalgam of suppositions and suspicions. There’s no sound scientific risk assessment, there’s no expressed intention to commit any relevant crime. Mr Benbrika served his full sentence, including the non-parole period in accordance with the sentence imposed by Bongiorno J, and for the reasons that we’ve advanced, your Honour, he shouldn’t be committed to prison further.

It follows from what I have said earlier in this judgment that I do consider this case to be a very clear one for the making of a CDO. I do not accept that the case can be characterised in the way advanced by counsel. Nor do I consider that there is any deficiency in the evidence. To my mind, the evidence was comprehensive and compelling, pointing inescapably to the correct outcome of this case.
In my view, the plaintiff’s case has been clearly made out to the requisite standard. The only appropriate course is for the Court to make a CDO.
As for the duration of the CDO, the maximum period is 3 years. The evidence does not suggest that the unacceptable risk posed by the defendant will dissipate or be otherwise prevented at any particular point during this period. In the circumstances, the CDO will be for a period of 3 years, commencing today.[85]

Ground 1: did the judge err in not identifying and separately considering specific serious Part 5.3 offences?

[85]Ibid [474]–[477].

Ground 1 provides:

The primary judge erred in determining that the appellant posed an ‘unacceptable risk’ of committing a ‘serious Part 5.3 offence’ pursuant to s 105A.7(1)(b) of the Code by considering ‘unacceptable risk’ by reference to ‘serious Part 5.3 offences’ globally without identifying, and separately

considering any particular serious Part 5.3 offence in relation to which the appellant was said to pose an unacceptable risk.

Before the primary judge, the Minister submitted that div 105A did not require the Court to determine specific serious Part 5.3 offences that the appellant posed an unacceptable risk of committing. The Minister put his case on the basis that the appellant posed an unacceptable risk of committing a number of serious Part 5.3 offences. As we have already said, the Minister identified these serious Part 5.3 offences to the primary judge in his written outline of opening submissions. In support of the approach he advanced to the primary judge, the Minister submitted that there was no explicit requirement for the Court to identify a specific serious Part 5.3 offence. As to the absence of any implicit requirement to identify a specific offence, the Minister relied upon a New South Wales authority dealing with equivalent provisions in the Terrorism (High Risk Offenders) Act 2017 (NSW) (‘the THRO Act’).[86]
[86]New South Wales v Alam [2020] NSWSC 295.

Before the primary judge, the appellant took no issue with the Minister’s submission that the Court was not required to determine specific serious Part 5.3 offences. In this Court, however, the appellant contended that the approach advanced by the Minister before the primary judge was erroneous, and that the Court was required to identify a specific serious Part 5.3 offence (or offences) and determine whether the appellant was an unacceptable risk of committing that offence (or offences).

The appellant supported that contention with submissions based on the text of s 105A.7(1)(b) and the statutory context in which that section was enacted. Additionally, the appellant submitted that unless a specific serious Part 5.3 offence (or offences) was identified, the Court could not properly consider whether there might be some less restrictive measure that would be effective in preventing the unacceptable risk of committing that offence as required by s 105A.7(1)(c).

Both parties made submissions about the meaning of ‘a serious Part 5.3 offence’ in s 105A.7(1)(b). Those submissions included submissions about the singular including the plural and the difference between ‘a serious Part 5.3 offence’ and ‘any serious Part 5.3 offence’. Both parties appeared to agree, however, that s 105A.7(1)(b) permitted a court to deal with an application for a CDO on the basis of either one serious Part 5.3 offence, or multiple serious Part 5.3 offences.

In Minister for Home Affairs v Benbrika,[87] Kiefel CJ, Bell, Keane and Steward JJ cited with approval the following observations made by Spigelman CJ in Lodhi v The Queen:[88]

Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge.[89]

[87](2021) 95 ALJR 166; [2021] HCA 4 (‘Benbrika (HC)’).

[88](2006) 199 FLR 303, 318 [66] (‘Lodhi’).

[89]Benbrika (HC) (2021) 95 ALJR 166, 184 [46].

Plainly, the question of whether a particular terrorist offender is an unacceptable risk of committing a serious Part 5.3 offence falls to be determined by reference to all of the evidence in a particular case. In some cases (perhaps many cases) it may not be possible to identify with precision a specific serious Part 5.3 offence that a terrorist offender might commit in the future. However, in such a case the evidence may nevertheless disclose that there is a high degree of probability that the terrorist offender poses an unacceptable risk of committing one or more of a number of serious Part 5.3 offences.

On the proper construction and application of s 105A.7(1), an application for a CDO could not fail because, while one might be able to identify a group of serious Part 5.3 offences which the terrorist offender posed an unacceptable risk of committing, one could not say with respect to each such offence, considered in isolation, that there was an unacceptable risk of that offender committing that offence.

Contrary to the submissions made by the parties, ground 1 does not fall to be considered by reference to whether the singular includes the plural or whether the use of the indefinite article is ‘more specific and granular’ than the use of the word ‘any’. In accordance with the text of s 105A.7(1)(b), the primary judge was required to consider whether he was satisfied to a high degree of probability, on the basis of admissible evidence, that the appellant posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community. On a fair reading of the Principal Reasons, that is precisely the task the primary judge performed.

Having considered all of the evidence, the judge concluded that the appellant remained committed to a violent extremist ideology that justified the use of violence in the name of religion; was an influential leader who had no plans to stop teaching and proselytising his ideology; and had made no commitment to continue with the deradicalisation program in which he had participated in recent years if he was released into the community. On this basis, the judge concluded that the risk was that, if released, the appellant would ‘radicalise others again or … guide and encourage people who are already radicalised to engage in acts of terrorism’.[90]
[90]Principal Reasons [464]–[465].

The primary judge thus accepted the Minister’s case that the appellant was an unacceptable risk of committing the serious Part 5.3 offences for which he was convicted and sentenced in 2008/2009 — namely, being a member of a terrorist organisation contrary to s 102.3(1) and intentionally directing the activities of a terrorist organisation contrary to s 102.2(1). Additionally, while not expressly referring to the particular offences or their section number, it is plain that the judge was satisfied to the requisite high degree of probability that the appellant posed an unacceptable risk of committing offences contrary to ss 101.2, 102.4 and 102.5 (all of which are serious Part 5.3 offences).

The appellant submitted that before a court could determine that a terrorist offender posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community, the court must (as an intermediate step) first identify the serious Part 5.3 offence which the offender poses an unacceptable risk of committing. That is, s 105A.7(1)(b) requires a court to consider the question of risk by reference to a particular serious Part 5.3 offence or offences.

To the extent that the appellant submitted that, in considering s 105A.7(1)(b), a court must look at each of the serious Part 5.3 offences contained in the Code and consider whether there is an unacceptable risk of committing that offence if the offender is released into the community, we reject that submission. Division 105A contains 21 serious Part 5.3 offences. If one considers the additional offences created by ss 11.1 (attempt), 11.4 (incitement) and 11.5 (conspiracy), there are many more.[91] In applying s 105A.7(1)(b), a court is not required to engage in the task of identifying each of these serious Part 5.3 offences, individually, and then deciding whether there was an unacceptable risk of the terrorist offender committing that offence if released into the community. For the reasons given by Spigelman CJ in Lodhi,[92] such an analysis would be unrealistic. Nothing in the language of s 105A.7(1)(b) demands such an approach. Section 105A.7(1)(b) instead permits a court to consider and identify the risk which the terrorist offender poses without necessarily linking that risk to a specific individual offence, as long as the risk which is ultimately identified is a risk of committing one or more serious Part 5.3 offences. Having identified any serious Part 5.3 offences which the terrorist offender poses a risk of committing, the court is then required to determine whether the threat of relevant harm is sufficiently serious to make the risk of the commission of those offences ‘unacceptable’.[93]
[91]See s 11.6 of the Code and DPP v Fattal [2013] VSCA 276, [202]–[212]. The parties assumed, and we do not need to decide, that such additional offences, or at least some of them, constitute ‘serious Part 5.3 offences’.
[92](2006) 199 FLR 303, 318 [66].
[93]Benbrika (HC) (2021) 95 ALJR 166, 185 [47].

In concluding that the appellant posed an unacceptable risk of radicalising others again or guiding and encouraging people who are already radicalised to engage in terrorist acts, the judge sufficiently identified the serious Part 5.3 offences created by ss 101.2, 102.2(1), 102.3(1), 102.4 and 102.5 as being the relevant offences which formed the basis for the making of the CDO. His Honour did not err in the way contended for by the appellant. It follows that ground 1 must be rejected.

Ground 2: did the judge err in being satisfied that the appellant posed an unacceptable risk of committing a serious Part 5.3 offence?

Ground 2 provides:

The primary judge erred in being satisfied under s 105A.7(1)(b) of the Code that the appellant poses an unacceptable risk of committing a serious Part 5.3 offence if released into the community, because such an unacceptable risk was not established by the admissible evidence before the primary judge to a high degree of probability.
Particulars
(a)The primary judge erred in admitting into evidence, and without qualification, notes of persons who participated in CISP sessions with the appellant.
(b)The primary judge erred in finding that the appellant had fabricated the supposed change in his extremist views, because the evidence did not justify the drawing of that serious inference.
(c)Even if the CISP notes were admissible, the primary judge’s conclusion was not supported by the evidence having regard to:
(i)the limitations of the CISP notes, having regard to their thirdhand, altered hearsay nature, content and language;
(ii)favourable aspects of the CISP notes, to which the primary judge made no reference;
(iii)the limitations of the evidence that certain persons had visited the appellant; and
(iv)the limitations of the other evidence before the Court.

As part of ground 2, the appellant makes complaint about the admissibility of the CISP notes. The notes, which had been provided to Ms Dewson, Dr Mischel and Dr Davis, were admitted pursuant to s 60 of the Evidence Act2008. In a ruling delivered at the same time as the Principal Reasons, the primary judge rejected the appellant’s application to refuse to admit the CISP notes pursuant to s 135 of the Evidence Act and the appellant’s application to limit the use of those notes pursuant to s 136.[94] In addition to complaining about the Admissibility Ruling, the appellant also contended that, having admitted the CISP notes, the judge erred in relying on them as a basis for being ‘satisfied to a high degree of probability, on the basis of admissible evidence’, that the appellant posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community.
[94]Minister for Home Affairs v Benbrika (Ruling No 1) [2020] VSC 886 (‘Admissibility Ruling’).

Under Ground 2, the appellant also contended that the judge’s reliance upon the appellant’s ‘problematic associations’ with identified individuals as a basis for making the CDO was erroneous. The appellant submitted that if the judge had reviewed that evidence ‘critically’ he should have concluded that the evidence was insufficient to support the level of satisfaction required by s 105A.7(1)(b).

Additionally, the appellant took issue with the primary judge’s conclusion that the appellant’s assertion, that in 2014 the appellant learned that when a Muslim gets a visa or citizenship in another country they are required to protect the people of that country from harm, meaning that Australia would be protected from any violence with which the appellant was associated, was a fabrication.[95]
[95]Principal Reasons [432].

The CISP notes

The CISP notes were not the original notes of those who attended the CISP sessions. They were documents purporting to summarise the notes of the CISP mentors who attended the sessions with the appellant. [REDACTED]

The CISP notes were provided to Victoria Police. The original CISP mentors’ notes, however, were not provided to Victoria Police.

Relying upon s 135 of the Evidence Act, the appellant submitted that the CISP notes should not have been admitted into evidence because their probative value was substantially outweighed by the danger that they might be unfairly prejudicial to the appellant,[96] or misleading or confusing.[97] Before the primary judge, the only submission the appellant made about unfair prejudice was that, by virtue of their hearsay nature, the notes were unable to be tested in cross-examination. However, no submission was made by the appellant to the primary judge that any particular note or notes were incorrect or disputed by the appellant.
[96]Section 135(a).
[97]Section 135(b)

The primary judge accepted the Minister’s submission that the CISP notes were highly probative in showing that the appellant had not renounced his commitment to violent jihad.[98] The judge said he could see no unfair prejudice attaching to this evidence but if there was any, ‘it would go nowhere near outweighing the probative value, much less substantially outweighing it’.[99] Additionally, his Honour said that there was no real potential for the CISP notes to be misleading or confusing.[100]
[98]Admissibility Ruling [30], [52].
[99]Ibid [52].
[100]Ibid.

In oral argument, the appellant took us to the CISP notes in considerable detail, identifying sentences and passages which were said to be vague, unclear, ambiguous or unreliable. Additionally, we were taken to sentences or passages which were said to be favourable to the appellant, but to which the judge did not refer to in the Principal Reasons. This exercise (not one performed by the appellant before the primary judge) was undertaken to support the appellant’s admissibility and limited use arguments; as well as showing that, even if the CISP notes were admissible as proof of the truth of their contents, they were not capable of giving rise to the level of satisfaction required by s 105A.7(1)(b).

As we have already said, the CISP notes had been provided to the three relevant experts as part of the material upon which they were asked to form their opinions and produce their reports. As the Minister pointed out, it was the appellant who at first instance wanted notes of his CISP sessions provided to the experts. The appellant, however, observed that what was originally contemplated was the provision of the notes of the people who actually attended the CISP sessions — not some ‘third-hand hearsay’ compilation.

In any event, we see no error in the primary judge’s refusal to accede to the appellant’s applications under ss 135 and 136 of the Evidence Act. In particular, the appellant did not point to any unfair prejudice, or any respect in which the CISP notes were misleading or confusing; at its highest, the submission was that they were of doubtful clarity or reliability. Further, the appellant made no submission to the primary judge that any specific statement in the CISP notes was incorrect or disputed. Moreover, it is to be noted that the cross-examination of Ms Dewson and Dr Mischel, on behalf of the appellant, did not dispute the accuracy of the CISP notes but, in large part, proceeded on the basis that they reflected what had occurred in the CISP sessions.

That said, the importance of the CISP notes was not so much in the detail of any particular sentence or paragraph in them, but rather that they showed that at no time in some 100 or so CISP sessions did the appellant renounce his previously held views about violent jihad (save for the potential carve-out or ‘change of heart’ in respect of any country in which the appellant might reside, dealt with below). We do not accept the appellant’s submissions that some of the passages in question in the notes are open to a more benign interpretation. Dr Mischel (who also attended several of the CISP sessions) observed that the appellant’s refusal to comment on global acts of terrorism as recorded in notes of the CISP sessions mirrored his conduct during clinical sessions she conducted. In that important respect, therefore, the notes of the CISP sessions were reinforced by direct expert evidence.

Problematic associations

A substantial body of evidence was tendered before the primary judge concerning the appellant’s interactions with members of the Sydney cell, co-offenders, co-accused and others who had been convicted of serious Part 5.3 offences. While the appellant did not deny these numerous contacts, he submitted that, in various instances, nothing of great relevance could be drawn from a particular contact. The appellant did not address this issue in oral argument. His written submission was:

The reliance on evidence that persons visited the appellant and then travelled overseas was a weak basis for the Court to reach the satisfaction required by s 105A.7(1)(b). The primary judge did not review that evidence critically. In some cases, the person was a regular visitor, and visited the appellant both before and after leaving and returning to Australia with no apparent connection between the frequency of visits and the departure. In other cases, the person visited the appellant on a number of occasions and then not at all, and about 11 months after that cessation of visits, left Australia. In one instance, the person had visited in June 2009 on one occasion; the person then departed from Australia in May 2011. There was evidence of a letter from the appellant to the Commonwealth Parole Office saying that he had never encouraged people to leave Australia as foreign fighters. In one instance, the evidence was that the appellant spoke on the phone to a person’s brother, some four years after that person departed Australia and in the absence of any evidence of the brother being ‘problematic’. Talking to a person related to someone ‘problematic’ does not travel far in supporting satisfaction under s 105A.7(1)(b).

The finding that the appellant’s change of belief was a fabrication

As we have already said, the primary judge concluded that the appellant’s ‘claimed change of heart’ was a fabrication by him.[101] The appellant contended that, in coming to this conclusion, the primary judge reasoned that because the appellant held a belief zealously at one point in time, it could not be changed. The appellant submitted that this was ‘illogical, not supported by the evidence, and contrary to the evidence of the CISP program’.
[101]Principal Reasons [432].

The primary judge said that there was a ‘whiff of implausibility’ in the appellant’s claim made in 2017 that, as a result of something the appellant read in 2014, he had changed his view.[102] As the primary judge put it, the appellant had ‘numerous opportunities to reveal the change’, but it occurred ‘a mere two weeks after parole had been refused for the first time’.[103] In answer to this, the appellant submitted that a zealously held belief was inherently likely to change over a period of time; rather than there being any sudden or immediate change of heart which would have been regarded as implausible. The appellant also submitted that the primary judge’s finding failed to take into account the evidence that the appellant did not have access to the CISP program until late May 2018; the nature of the restrictive conditions of the appellant’s incarceration; and the fact that the appellant was suffering from depression between at least 2014 and 2016.
[102]Ibid [423].
[103]Ibid [425]–[426].

The appellant submitted further that the primary judge failed to have regard to the evidence which showed that the appellant could not, consistently with his faith, renounce jihad. However, as a result of studying a particular text, the appellant became aware that ‘jihad’ did not contemplate the promotion of harm within a country in which the person had been granted a home. The appellant submitted that, far from his failure to renounce jihad diminishing the credibility of his claimed change of heart, his failure to renounce jihad (understood by him to mean ‘to fight for the sake of Allah, a holy war’),[104] was cogent evidence that his views had changed.
[104]Cf Principal Reasons [59].

Ground 2: analysis

The Minister’s case against the appellant was that the appellant posed an unacceptable risk of committing a serious Part 5.3 offence if he were released into the community. The risk posed by the appellant was said to stem from the enormous radicalising influence he had exerted on others in the past which, it was said, he was likely to continue to exert in the future. Prior to his incarceration, the appellant led a terrorist organisation in Melbourne that was preparing to commit a terrorist act. He was also involved with a terrorist organisation in Sydney, members of which were subsequently convicted of terrorism offences.

Additionally, the appellant had publically espoused an extreme religious ideology, including on national television. He had not renounced this ideology at the time he was sentenced in 2009; and, while in custody, he maintained contact with convicted terrorists. Moreover, he has received visits in custody from numerous young men (some of whom were either known or suspected foreign fighters) who subsequently left Australia in the various individual circumstances described in the evidence.

The Minister’s case was, in substantial part, a circumstantial one. In determining whether the appellant was an unacceptable risk of committing a serious Part 5.3 offence if released into the community, the primary judge was required to examine all of the evidence as a whole — rather than taking some piecemeal approach.[105] That is, it is not to the point that one piece of circumstantial evidence may not have been sufficient to establish (to a high degree of probability) that the appellant posed the risk referred to in s 105A.7(1)(b).
[105]Chamberlain v The Queen [No 2] (1983) 153 CLR 521, 535 (Gibbs CJ, Mason J); R v Hillier (2007) 228 CLR 618, 637 [46], 638 [48] (Gummow, Hayne and Crennan JJ); R v Baden-Clay (2016) 258 CLR 308, 333 [77] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

Thus, it was not to the point that a particular sentence or paragraph in the CISP notes may or may not have had the meaning contended for by the Minister; or that a particular individual who visited the appellant in prison may or may not have been shown to have been a foreign fighter at or about the time of his contact with the appellant. It was the effect of the whole of the evidence which was important in determining whether the appellant posed an unacceptable risk of committing a serious Part 5.3 offence if released into the community.

In relation to the appellant’s so-called change of heart, contrary to the appellant’s submission, the primary judge did not reason that because a belief is zealously held at one point in time it cannot be changed. The judge referred to six matters in coming to his conclusion that the appellant’s change of position was a fabrication, namely:

(1)First, it was highly unlikely that a person such as the appellant, with his ‘well-developed sense of religious and intellectual superiority and infallibility’, would have changed his views by 2014 from those which he had held for many years up to and including the time of his trial and sentencing.[106]
(2)Secondly, the failure by the appellant to reveal the change in his ideology for a period of three years after its asserted occurrence was suggestive that there had been no change.[107]
(3) Thirdly, the fact that the appellant first revealed his change of ideology a mere two weeks after parole had been refused for the first time was not supportive of his claimed change of heart back in 2014.[108]
(4)Fourthly, there was a body of evidence covering the 2014 to 2017 time period (including the notes of clinical and CISP sessions, parole assessment interviews and interviews conducted by Ms Dewson, Dr Mischel and Dr Davis) which supported the proposition that the appellant’s views had not changed.[109]
(5)Fifthly, there was evidence of the appellant’s willingness and inclination to be deceitful in order to meet his objectives.[110]
(6)Sixthly, the appellant’s claimed change of ideology was inconsistent with an aspect of the evidence concerning his index offending.[111]

[106]Principal Reasons [424].

[107]Ibid [425].

[108]Ibid [426].

[109]Ibid [427].

[110]Ibid [428].

[111]Ibid [429].

While there may not have been CISP sessions in the period 2014 to 2017, during which the appellant had an opportunity to reveal his change of ideology, there were numerous sentence management meetings and clinical sessions during this period during which the appellant could have, but did not, reveal his change of heart. The judge was well-entitled not to accept that, in truth, there had been any change of heart, on the appellant’s part. On the evidence, it was then a very short step to conclude that the asserted change of position by the appellant was a fabrication. We see no error in this conclusion.

When one looks at all of the evidence tendered before the primary judge concerning the appellant’s conduct leading to his conviction and sentencing in 2009, his expressed beliefs concerning violent jihad and terrorism, his failure to renounce those beliefs, his continued contact with known terrorist offenders, his capacity to radicalise others, coupled with the evidence of Ms Dewson and Dr Mischel, the case that the appellant posed an unacceptable risk of committing a serious Part 5.3 offence if released, was very strong. Having reviewed the evidence tendered before the primary judge for ourselves,[112] we see no error in the judge’s conclusion that the Minister established, to a high degree of probability, that the appellant posed an unacceptable risk of committing a serious Part 5.3 offence. It follows that ground 2 must be rejected.
[112]See Lee v Lee (2019) 266 CLR 129, 148–9 [55]–[56]. See also, Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 555–6 [30].

The Minister relied upon a notice of contention to support the making of the CDO. In short, the contention was that, because the appellant did not give evidence before the primary judge, this Court should infer[113] that the CISP notes are an accurate reflection of the CISP sessions; the appellant had a continuing desire to maintain associations with problematic individuals of national security interest; the appellant had not changed his extremist views; and any claimed change of heart was a self-serving fabrication. In light of the conclusions we have reached in relation to ground 2, however, it is not necessary for us to consider the Minister’s notice of contention.

Ground 3: did the judge err in not being satisfied that there was no other less restrictive measure that would be effective in preventing the unacceptable risk?

[113]In accordance with the principle in Jones v Dunkel (1959) 101 CLR 298 and/or the principle in Weissensteiner v The Queen (1993) 178 CLR 217. As part of that submission, the Court was urged not to follow the decision of the New South Wales Court of Appeal in New South Wales v Donovan (2015) 90 NSWLR 389, 414–15 [115]–[119].

Ground 3 provides:

The primary judge erred in being satisfied under s 105A.7(1)(c) of the Code that there was ‘no other less restrictive measure that would be effective in preventing the unacceptable risk’.
Particulars
(a)The primary judge misapplied s 105A.7(1)(c) because he did not identify any serious Part 5.3 offence which the appellant was at risk of committing, which is a necessary step in considering the issue of less restrictive measures under s 105A.7(1)(c).
(b)The primary judge erred in accepting the Minister’s submission that a control order would not be effective in preventing the unacceptable risk.
(c)The primary judge erred in accepting the Minister’s submission that cancellation of the appellant’s visa would not be effective in preventing the unacceptable risk.
(d)The primary judge failed to consider whether a less restrictive alternative would be effective in preventing the unacceptable risk and proceeded on the basis that the alternative had to be effective in preventing risk altogether.

The appellant challenged the primary judge’s conclusion that there were no other less restrictive measures that would be effective in preventing the unacceptable risk he posed of committing a serious Part 5.3 offence if released into the community on four bases: first, the judge was said to have erred in not considering the issue of less restrictive measures by reference to each serious Part 5.3 offence in respect of which the appellant posed an unacceptable risk; secondly, the judge erred in accepting the Minister’s submission that a control order would not be sufficient; thirdly, his Honour erred in accepting the Minister’s submission that the cancellation of the appellant’s visa would not be a sufficient measure; and fourthly, he erred in determining the issue referred to in s 105A.7(1)(c) on the basis that the less restrictive measure was needed to prevent the risk altogether, rather than reduce it to a risk which was not unacceptable.

In response to the appellant’s submissions on this ground, the Minister referred to the evidence of AC Lee concerning the practical impossibility of using 24 hour police surveillance as a preventative measure; the fact that the appellant would not need to be present in Australia in order to commit a serious Part 5.3 offence; and the limitations on the ability upon Australian authorities to monitor the appellant if he were removed from Australia to Algeria. The respondent submitted that, ‘critically’, AC Lee was not cross-examined by the appellant on his evidence; and it was not open to the appellant now to invite this Court to reject evidence that was unchallenged before the primary judge.

The appellant’s first challenge under ground 3 must be rejected, largely for the reasons we have given in respect of ground 1. In the circumstances of this case, the judge was not required to assess the question of risk by reference to each individual serious Part 5.3 offence which the appellant posed an unacceptable risk of committing if released into the community. What was required was the assessment of that risk by reference to the serious Part 5.3 offences which the appellant posed an unacceptable risk of committing. As we have said, these offences were sufficiently identified by the primary judge, even though his Honour may not have used specific section numbers. The unacceptable risk which then fell to be analysed was the unacceptable risk of committing these offences which carried a threat of harm to members of the community.[114]
[114]See Benbrika (HC) (2021) 95 ALJR 166, 185 [47].

The appellant’s second challenge under this ground must also be rejected. The appellant submitted that, contrary to the submissions of the Minister, a control order ‘could have addressed’ each of the unacceptable risks and matters identified by the Minister, by prohibiting the appellant from engaging in any number of activities of concern, or otherwise expressly limiting his ability to engage in particular concerning conduct.

No doubt, as a matter of law, a control order could be fashioned to prevent (or restrict as far as necessary) the appellant from engaging in particular activities of concern. That is, however, not necessarily to the point, or the end of the matter.

The evidence of AC Lee was directed to what was possible as a matter of practicality. That evidence was that ‘it would be extremely difficult, if not impossible, to effectively frame a non-association control that would prevent [the appellant] from radicalising, inciting, directing, urging or influencing others to commit serious terrorism offences’. AC Lee’s evidence showed that the ability to enforce such a control in respect of the appellant, in circumstances where it would not be possible to list all of the prospective individuals who may seek him out for advice and be susceptible to his influence, was even more problematic. As AC Lee said in respect of a non-association control order, it was likely to be exceptionally difficult to detect and prove breaches of such orders which would restrict the ability of the appellant and the appellant’s family from associating with others or otherwise doing things that the appellant would be prohibited from doing.

The terms of the control order made in the Federal Court on 1 December 2020 show the detail in the level of restrictions that could be theoretically imposed on the appellant. The unchallenged evidence of AC Lee discloses the practical difficulties (and perhaps impossibility) of enforcing many of those restrictions. We see no error in the primary judge’s acceptance of the Minister’s submissions that a control order would not prevent the unacceptable risk posed by the appellant.[115]
[115]Principal Reasons [338]–[340], [468]–[469].

The appellant’s third challenge under this ground was that the Minister did not discharge his burden of demonstrating that visa cancellation was not a less restrictive alternative. The appellant submitted that there was no evidence before the court as to the length of time that he would spend in immigration detention and the mechanisms for reviewing correspondence by an unlawful non-citizen kept in such detention. The appellant also submitted that, as to the risk that he might commit a serious Part 5.3 offence in Australia from Algeria, there was no evidence that he would wish to incite terrorist acts in Australia from overseas (rather than, say, incite such acts in Algeria). Additionally, the appellant submitted that the Minister’s evidence was silent as to the steps which Algerian authorities could take to police the appellant abroad.

We reject these submissions. When one considers the whole of the evidence, including the unchallenged evidence of AC Lee, there was no error in the primary judge being satisfied that the cancellation of the appellant’s visa would not be effective in preventing the unacceptable risk of the appellant committing a serious Part 5.3 offence, either in immigration detention or from Algeria.

To the extent that the appellant relied upon the definition of ‘immigration detention’ in s 5 of the Migration Act as including being held ‘in a prison’,[116] it is difficult to see how such a circumstance could be said to be a less restrictive measure than the circumstances in which the appellant is currently detained.[117]
[116]See sub-paragraph (b)(ii) of the definition.
[117]However, see s 105A.4 which, subject to certain exceptions, provides that a terrorist offender detained in a prison under a CDO must be treated in a way that is appropriate to his/her status as a person who is not serving a sentence of imprisonment, and should not be accommodated in the same unit as persons who are in prison for the purpose of serving sentences of imprisonment.

As to the appellant’s assertion that there was no evidence that he would wish to incite terrorist acts in Australia from overseas (rather than inciting such acts in Algeria), that assertion sits uncomfortably with the appellant’s now claimed ideology that involves not harming the citizens of a country in which one then resides. In our view, the evidence well supported the primary judge’s conclusion that the cancellation of the appellant’s non-citizen visa would not be effective in preventing the unacceptable risk posed by the appellant.[118] This is so even if one were to contemplate combining the cancellation of the appellant’s visa with the making of a control order.
[118]Principal Reasons [342]–[345], [468]–[469].

The appellant’s fourth challenge under this ground was that s 105A.7(1)(c) requires that the less restrictive measure contemplated be effective in preventing the unacceptable risk by reducing that risk to one which was acceptable. The appellant contended that the primary judge erred at Principal Reasons [468]–[469] when his Honour said that neither a control order nor the cancellation of the appellant’s visa would be effective in preventing the risk posed by the appellant — rather than saying that they would not be effective in preventing the unacceptable risk posed by him.

We reject this submission. A fair reading of his Honour’s judgment discloses that his Honour analysed s 105A.7(1)(c) by reference to the prevention of the unacceptable risk the appellant posed of committing a serious Part 5.3 offence if he were released into the community. There are numerous references in the Principal Reasons to the issue of the unacceptable risk posed by the appellant and whether there were less restrictive measures that would be effective in preventing that unacceptable risk, including in the judge’s recitation of the Minister’s submissions on this issue.[119] It is these submissions which the primary judge accepted when he concluded that there was no other less restrictive measure that would be effective in preventing the unacceptable risk the appellant poses. It follows that Ground 3 must be rejected.
[119]See, eg, Principal Reasons [340], [343], [344], [345] and [349].

Ground 4: the residual discretion

Ground 4 provides:

The primary judge erred in declining to exercise the residual discretion under s 105A.7(1) of the Code and refusing to make a continuing detention order.
Particulars
The primary judge fell into House v The King error in finding that the appellant should be kept in continuing detention in Australia in circumstances where the appellant could be removed from Australia under s 198 of the Migration Act 1958 (Cth).

The appellant contended that the primary judge erred in not exercising a residual discretion[120] notwithstanding that the judge was satisfied of the matters set out in paragraphs (b) and (c) of s 105A.7(1) of the Code. In support of this contention, the appellant submitted that there was ‘an evidentiary vacuum’ as to the risk he presented in Algeria. This, combined with what the appellant said was a lack of precision as to the serious Part 5.3 offence which he might commit, meant that the factual position was ‘too unknown’ to warrant keeping the appellant in detention in Australia. The appellant submitted that it was unreasonable or plainly unjust[121] to keep him in preventative detention when he could be removed from the Australian community under s 198 of the Migration Act following the cancellation of his current visa.
[120]As to which, see Benbrika (HC) (2021) 95 ALJR 166, 175, [11], 185 [47].
[121]See House v The King (1936) 55 CLR 499, 505.

This ground of appeal fails to have regard to the evidence of AC Lee to which we referred when considering ground 3. More specifically, the ground fails for the same reasons the appellant’s third challenge under ground 3 failed. There was no error in the exercise of the primary judge’s discretion to grant the CDO. Ground 4 must accordingly be rejected.

Conclusion

The appeal will be dismissed.

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[2021] VSCA 303

9 November 2021