CCYW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 4452

CCYW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4452 (23 December 2022)
Division:GENERAL DIVISION
File Number: 2021/5946
Re:CCYW
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Boyle
Date:23 December 2022
Place:Perth

The decision of the delegate of the Minister made on 18 August 2021 to refuse the applicant the protection visa under s 65 of the Migration Act 1958 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
Catchwords
MIGRATION – s 36(1C) of the Migration Act – refusal to grant a protection visa under s 65 of the Migration Act – whether the applicant has been convicted by final judgment of a particularly serious crime – whether applicant is a danger to the Australian community – sexual offending – applicant claims religion as a protective factor against reoffending –applicant previously reoffended after claiming religion to be a protective factor – claim of childhood sexual abuse – engagement with treatment – applicant plans to live with convicted sex offender if released into the community – applicant an unacceptable risk of reoffending – reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Crimes Act 1900 (NSW) ss 61I, 61L
Migration Act 1958 (Cth) ss 5, 5M, 36(1C), 36(1C)(b), 36(2), 36(2)(a), 36(2)(aa), 36(2C)(b), 47, 65, 65(1), 499, 500(1)(c)(i)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) sch 5, pt 2, item 9
Cases
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
CCYW and Minister for Home Affairs [2019] AATA 241
DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636
HSCK and Minister for Home Affairs [2019] AATA 4392
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591
MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 119
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
RWDX and Minister for Home Affairs [2019] AATA 123
SQDD and Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] AATA 2980
Vabaza v Minister of Immigration and Multicultural Affairs [1997] FCA 148
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) arts 33, 33(2)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth)
Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction no. 84 – Consideration of Protection visa applications (25 June 2019)
Department of Home Affairs, Refugee Law Guidelines (15 November 2022) para 3.26.3
REASONS FOR DECISION
Deputy President Boyle
23 December 2022
THE APPLICATION

This is an application for the review of a decision of a delegate of the Respondent (Minister) made on 18 August 2021 to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa under s 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1] R1, 5–49.
The delegate refused to grant the applicant a protection visa under s 65 of the Act, having found that the applicant did not meet the criterion in s 36(1C)(b) of the Act because the applicant:
(a)had been convicted by a final judgment of a particularly serious crime; and
(b)was a danger to the Australian community.
The applicant was therefore taken not to satisfy s 36(2)(aa) of the Act by operation of s 36(2C)(b) of the Act.
THE ISSUES
The Minister accepts that the applicant has been found to satisfy s 36(2) of the Act.[2] The issues for determination are therefore:
(a)whether the applicant has been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act; and
(b)whether the applicant is a danger to the Australian community.
[2] Minister’s statement of facts, issues and contentions filed 1 April 2022 (Minister’s SFIC) para 4.
the hearing and the evidence
The application was heard on 28 April 2022. The applicant was unrepresented. The Minister was represented by Ms K Hooper of counsel. The applicant gave evidence at the hearing and the Minister called a psychiatrist, Dr Gosia Wojnarowska, who had provided a risk assessment report dated 2 March 2022.[3] The following documents were admitted into evidence:
[3] R3.
(a)Letter of Christine Oliver dated 21 April 2022 (A1);
(b)Document headed “2021 Annual Report on the Chinese Communist Government’s Persecution of the Church of Almighty God” filed 27 April 2022 (A2);
(c)Induction mental health screen from Apollo dated 1 September 2021 (A3);
(d)Mental health assessment from Apollo dated 1 September 2021 (A4);
(e)Statement of the applicant, undated, headed “The statement for review Visa refusal in the AAT” filed 7 October 2021 (A5);
(f)Letter from Stillwater Christian Counselling dated 20 August 2021 (A6);
(g)Support letter of PL dated 26 August 2021 (A7);
(h)Respondent’s documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) on 28 September 2021 (R1);
(i)Supplementary T documents filed 5 November 2021 (R2); and
(j)Report of Dr Gosia Wojnarowska dated 2 March 2022 (R3).
background
The applicant is a citizen of the People’s Republic of China, born in 1971. He first arrived in Australia in October 2001 and held a series of temporary visas.[4] The applicant then returned to Australia in December 2005 as the holder of a Skilled – Australian Sponsored (Class BQ) (Subclass 138) visa.
[4] R1, 10.
In June 2017, the applicant’s visa was cancelled under s 501(3A) of the Act. The applicant’s visa was cancelled because he had a “substantial criminal record” on the basis of having been sentenced to a term of imprisonment of 12 months or more[5] (the cancellation decision).
[5] The Act ss 501(6)(a), 501(7)(c).
The applicant sought revocation of the cancellation decision. On 6 December 2018, a delegate of the Minister refused to revoke the cancellation of the applicant’s visa. The applicant applied to the Tribunal for a review of that decision. On 27 February 2019, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant’s visa (previous Tribunal decision).[6]
[6] R1, 583–630; [2019] AATA 241.
On 8 March 2019 (by application dated 5 March 2019),[7] the applicant made an application for a protection visa (the protection visa). On 17 May 2019, a delegate of the Minister refused to grant the applicant the protection visa.[8]
[7] R1, 50.
[8] R1, 230–7.
The applicant sought review of that decision in the Migration and Refugee Division of the Tribunal. On 14 October 2019, the Tribunal remitted the matter for reconsideration with the direction that the applicant satisfied s 36(2)(a) of the Act.[9]
[9] R1, 244.
On 18 August 2021, a delegate of the Minister made a decision to refuse to grant the applicant the protection visa on the basis that the applicant failed to satisfy s 36(2C)(b) of the Act (see [1] and [2] above).
Offending history
On 19 September 2008, the applicant was convicted of four counts of “assault with act of indecency” (the 2008 offences). A further two counts were taken into account on a Form 1. The applicant was sentenced to a term of imprisonment of two years which was wholly suspended.
The circumstances of the offences were set out in the remarks of Conlon DCJ in the District Court of New South Wales in sentencing the applicant as follows:
The offender appears for sentence following his pleas of guilty to four counts of indecent assault. Under s 61L of the Crimes Act, the maximum penalty in respect of this section is one of imprisonment for five years. He has requested that two further matters be taken into account on a Form 1 schedule.
The facts are exhibit C and they read as follows: the offender operated as a registered masseur/acupuncture therapist under the business name “[omitted] Massage and Acupuncture”… On 16 December 2006, the complainant Ms [L] commenced acupuncture and massage therapy at [omitted] Massage and Acupuncture with the offender as she believed this therapy would assist her and her husband in starting a family.
During the course of the therapy the offender asked [Ms L] a number of very personal questions including whether she had orgasms during intercourse and whether she “stimulated” herself. Ms [L] was embarrassed, however she answered as she believed that they were pertinent to the therapy she was receiving.
Ms [L] attended the business on a weekly basis for therapeutic consultations. From about the third week the accused told her how “sexy” she was. Ms [L] thought these comments were inappropriate. However she did not discuss the matter with the offender as she believed it related to cultural differences and as such she was content just to ignore the remarks.
During the early stages of her consultations, Ms [L] was covered with a towel. However, she became more familiar with the offender and trusting his professionalism she allowed the offender to remove the towel to the point that she would lay on the massage table in her panties. She believed that she was receiving an all over body massage as part of her therapy and that the offender was a professional, therefore this was appropriate in the circumstances.
… Through the course of the therapy, the offender told Ms [L] she suffered from a blocked lymphatic system and that she required deep tissue massages to her stomach, inner thighs, groin and pubic area.
… on 21 March 2007, Ms [L] attended the practice and received a massage from the offender. At the time, she was wearing only her panties. The offender focused the massage on her groin area, in particular her pubic area. During this treatment he massage her genital area on top of her underwear. This went on for a period of about three or four minutes (see offence on Form 1). She was embarrassed and crossed her legs in order to force the offender to stop that action which he did. After about a minute or so, she uncrossed her legs and the offender returned to massaging the genital area again on top of her underwear for several minutes (count 1)
During this he asked her if she was enjoying his actions. She replied that she was not, that it was wrong for him to be doing it. The consultation was ended about five minutes later.
…
… on Sunday 1 April 2007, she again attended the practice and received a massage and acupuncture from the offender. During the course of this therapy she was again only wearing a pair of panties and the offender massaged her genital area on the outside of underpants (Form 1). While massaging her genital area the offender placed his fingers under panties and placed a finger on her genitals (count 2). He did not penetrate her vagina. At the same time he brushed the fingers of his other hand across her mouth and asked if he could kiss her. She told him “that this was very wrong and inappropriate”. She got off the table and explained that she had another appointment to go to, so got dressed and paid for the consultation and left.
…
The complainant Ms [J] commenced therapy with the offender on 31 August 2007. After completing the initial paperwork, the offender showed her to a consultation room and asked her to get undressed. While she was in a partial state of undress, the offender entered the room without forewarning her and commented on her “large breasts”. He began to massage her while at the same time asking questions about how often she had sex and if she had “sex toys”. He massaged her chest and upper breast area, however this did not concern her. At the completion of therapy she made another appointment for the following Friday.
…
… The offender started to massage her feet. While doing this he asked her more questions relating to her sex life. After a short time she rolled over onto her stomach and the offender commenced to massage her body. After a while she rolled onto her back and the accused continued to massage her. He told her that he needed to massage her lymph nodes and began to massage her left breast (count 3).
She questioned this, but he insisted that he was massaging her lymph node. While doing this he again asked if she used sex toys or if she used her fingers for stimulation. After a short time he began to massage her stomach area and then her groin area. She flinched when he touched her groin area and again told her that he needed to massage her lymph nodes. He gradually pushed her panties further and further down until her genitals were exposed and he placed one of his hands on her genitals and began to massage them (count 4)….
… on Thursday 13 September 2007, police attended the premises of the offender. He was arrested.
…
Clearly the aggravating factor in respect of each of these offences is the offenders breach of trust owed to each victim. However, there was no violence involved and no physical harm was done to either victim. Indeed, in respect to Ms [L] any significant psychological impact was not immediately felt following the first offence on 21 March 2007 as she booked further appointments for herself and her mother.
Similarly in respect of Ms [J], there was certainly no question about the offenders inappropriate behaviour and conversation during her first consultation on 31 August 2007 and yet she made an appointment for the following Friday.
However, this is also indicative in the ability in the offender to mask his inappropriate conduct reassuring the patient that his methods had a legitimate therapeutical purpose. This serves to highlight the reprehensible nature of his criminal offending.[10]
[10] R1, 520–4.
Judge Conlon accepted the following as mitigating circumstances for the purposes of sentencing:
(a)The applicant had no record of prior convictions and therefore came before the court as a person of prior good character;
(b)His Honour was satisfied that the applicant had good prospects of rehabilitation;
(c)The applicant had shown remorse; and
(d)The applicant had pleaded guilty.[11]
[11] R1, 524–5.
His Honour quoted from a report by psychologist Jenny Howell and commented as follows:
Ms Jenny Howell, psychologist is exhibit 2. She stated:
“[The applicant] accepted that he was responsible for the offences and that his behaviour was wrong and unacceptable. He acknowledged that his behaviour may have caused his victims to feel humiliated and that they may have suffered psychologically through his actions. [The applicant] said he feels ashamed of his behaviour and that he experiences “guilty” feelings”.
…
The psychologist concluded that the offender does not have a history of mental health concerns and there was no suggestion that he is a violent man who has any anti-social peers or endorses anti-social attitudes. She stated:
“Clinically [the applicant] demonstrates a number of strengths including his insight into the effects of his behaviour, his acknowledgment of full responsibility for his offences and acknowledged remorse for his actions, [the applicant’s] wife is fully aware of his offences and has indicated that she is committed to their relationship and is positive and supportive of him.”
In summarising his reasons for suspending the applicant’s sentence, his Honour said:
I am of the view that the objective seriousness of the offence requires the imposition of a custodial sentence, however in balancing the objective seriousness of the offence with the proper weight to be given to the offender’s subjective matters, I consider that it is appropriate to suspend the execution of the sentence. I have principally had regard to the fact that no violence was involved in the offence and no physical harm done to the victims; his early plea sparing the victims from having to give evidence; the absence of any prior criminal record; his expression of remorse and contrition; and the psychologists opinion that there is a low risk of re-offending and accordingly, I am satisfied of his good prospects of rehabilitation.[12]
[12] R1, 526–8.
On 10 July 2015 the applicant pleaded guilty in the District Court of New South Wales to one count of “sexual intercourse without consent” and one count of “assault with act of indecency” (the 2015 offences). Two additional offences were taken into account on Form 1s, being a further offence of sexual intercourse without consent, and a further offence of indecent assault.[13] In relation to the offence of “assault with act of indecency”, taking into account the matter on the Form 1, the applicant was sentenced to a fixed term of imprisonment of one year and six months. In relation to the offence of “sexual intercourse without consent”, taking into account the Form 1 offence, the applicant was sentence to four years’ imprisonment with a non-parole period of two years and six months.
[13] R1, 444.
The particulars of these offences were set out in the remarks of Blackmore DCJ in sentencing the applicant as follows:
The [applicant] also known as [omitted] has pleaded guilty to two offences. The first is an offence of having sexual intercourse without consent. That offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of seven years imprisonment. There is a Form 1 offence attached to this charge. That is a further offence of sexual intercourse without consent. The manner in which the Court takes such matters into account is by increasing the sentence for the offence to which the form attaches.
The offender is also charged and has pleaded guilty to a further offence of indecent assault committed on a different complainant. That offence carries a maximum penalty of five years imprisonment. There is also a Form 1 offence attached to this charge. That is a further offence of indecent assault on the same complainant. I will treat the Form 1 offence in the same manner as I have already identified.
…
THE MATTER IN RELATION TO COMPLAINANT NUMBER 1
The complainant NH is a middle-aged woman. The offender was employed as a masseuse [sic] at [omitted] Clinic… Although the complainant had been attending the clinic for about 18 months prior to this incident the offender and complainant were unknown to each other. At about 11.30 am on Saturday 3 May 2014 the complainant had an acupuncture appointment at [omitted] Clinic. She had been attending the clinic monthly as an adjunct to treatment she was receiving for a peripheral nervous system problem.
… The acupuncturist thought the complainant would benefit from a massage after the acupuncture procedure and told her that she would get someone else to give her a massage because they were very busy that particular day. When the acupuncturist had finished her procedure she went outside the room and brought the offender back in. The complainant was lying face down on the massage table with her face in the hole at the top of the table. She was wearing a midi brief pair of underpants and a towel draped over the top of her body. The acupuncturist said “This is [the applicant] and he is going to do the massage for you”.
… He asked her where she wanted to be massaged. The complainant told him lower back, legs and feet. The offender said “Why don’t you let me do a full massage, seeing I am here”. The complainant agreed and the offender asked her if she wanted a firm or a light massage. The complainant asked for a light massage.
… During the massage the offender commenced a conversation with the complainant, enquiring about her age, marital status, living arrangements and the chance of her reconciling with her then divorced husband. The conversation made the complainant feel uncomfortable and she became aware that she was making it obvious to the offender that she lived alone and was vulnerable.
… He was working on her lower back and buttocks and pummelling them quite hard. The offender began to roll down the top of the complainant’s underpants. He asked the complainant “May I”? The complainant gave him permission to roll down the top of her underpants but soon realised that he had pulled them all the way down when she felt the flat of his palm circle the lower part of her buttocks. The offender then circled the complainant’s anus with his finger and put his finger inside her anus. He continued to move his finger in a circular movement inside the complainant’s anus. The complainant said “What are you doing”? The offender did not answer her and continued. The complainant asked again “What are you doing” and the offender did not answer her but continued. The offender then asked the complainant to part her legs because they were close together. The complainant complied in a shocked state. The offender asked “How does that feel, does that feel nice”? The complainant said “No it doesn’t, it hurts”.
The offender inserted his finger deeper into the complainant’s anus and she felt that he was not wearing a glove. The complainant states she was frozen with fear. At one point the offender removed his finger and told the complainant he was putting some oil on his finger. He inserted it back inside the complainant’s anus and probed deeper.
The complainant could feel the offender massaging her internal organs. The assault lasted for five or ten minutes in total.
…
MATTERS WITH RESPECT TO COMPLAINANT NUMBER 2
The complainant CB is a woman who had attended the [omitted] Clinic at [omitted] for approximately eight years. The [applicant] was employed as a masseuse [sic] at that clinic. The complainant most recently commenced acupuncture and massage therapy at the clinic as she suffers from spondylitis, a condition affecting the L4 and L5 vertebrae. This condition causes her chronic back pain and numbing into her lower legs. She sought treatment to alleviate these symptoms. The complainant also was diagnosed with breast cancer in 2006 and had her right breast removed and some reconstructive surgery. As a result she had no feeling in this breast and her stomach.
…
On the second and third occasions the complainant saw the offender he asked her if he could massage between her breasts. She pointed out to him that she had had a mastectomy and did not like that area being touched. The offender used his fingers and massaged between her breasts, down the line in her chest where the tissue had been removed.
…
The next time the complainant attended the clinic for a massage she undressed leaving only her underpants on. She told the offender to be careful when massaging between her breasts because it caused her pain on the last occasion. During this massage the offender spent a lot more time massaging the complainant’s chest and breast area. The complainant did not attend the clinic for the purpose of a massage to correct the problem with her chest. This massage started with the complainant lying on her stomach and the offender massaging her back. The offender asked the complainant to roll over. He asked if he could massage her breast.[14]
(Original emphasis.)
[14] R1, 444–51.

His Honour went on to detail further appointments in which the applicant massaged CB’s breast. He then observed that “[w]hile the massage was taking place the complainant thought that the offender’s actions were all part of the therapy”.[15] and that “[s]he thought the offender was professional and did know what he was doing.”[16]
[15] R1, 452.
[16] R1, 453.
In relation to the applicant’s guilty pleas, Blackmore DCJ observed that:
The offender pleaded guilty only after I ruled that the offender’s earlier convictions referred to in the facts above should be led before a jury as tendency evidence in his then forthcoming trial.[17]
[17] R1, 454.
In relation to the seriousness of the applicant’s offences, Blackmore DCJ opined:
Whilst all offences of sexual intercourse without consent are serious the circumstances of the offending can happen in a variety of different ways. It is necessary to attempt to categorise the seriousness of the offences committed against the complainant NM. The complainant went to see the doctor expecting some appropriate medical treatment but instead she was subject to a debasing sexual attack by the offender. The offences involved a serious breach of trust by him at a time when the complainant was under his care and physically vulnerable. The fact that the offences were committed in breach of trust aggravates the seriousness of the offending… In my view the offences committed on NM could not be described as falling towards the bottom of the range for such offending.[18]
…
The offences committed on the complainant CB were less serious than those committed on NM but still very serious offences. The nature of the assaults in the case of CB were significantly less intrusive than the acts committed on NM but they still involved a breach of trust by the offender who was employed to undertake massage, not to indulge his passions by sexually fondling his patients. Again CB was physically vulnerable to such an attack.[19]
[18] R1, 454.
[19] R1, 455.
Judge Blackmore, having referred to the applicant’s earlier convictions for similar offences, made the following observation:
The offender explained to his psychologist and also in evidence that after the offences in 2007 he became a Christian in the belief that his faith would guide him from further offending. He now accepts that his religion is no shield to re-offending. When presented with temptation again he succumbed.
…
Before I could find that the offender had any reasonable prospects of rehabilitation he would need to carry out extensive counselling recommended by his psychologist.[20]
[20] R1, 457–8.
LEGISLATIVE FRAMEWORK
Under s 500(1)(c)(i) of the Act, the General Division of the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa relying on s 36(1C) of the Act. I am satisfied that this application for review was made validly and within the prescribed time.
Section 65(1) of the Act provides:
Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act) and was intended to codify art 33(2) of the Convention Relating to the Status of Refugees.[21]
[21] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); see See sch 5, pt 2, item 9 of the Amending Act and Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).
Article 33 of the Refugees Convention is as follows:
Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
(Original emphasis.)
Section 36(1C) of the Act provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Section 5M of the Act provides:
5M Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
(Original emphasis.)
Section 5 of the Act defines “serious Australian offence” as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i)involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
(Original emphasis.)
On 6 September 2017, the Minister for Immigration and Border Protection issued a direction under s 499 of the Act to delegates who consider valid applications for Protection visas under s 47 of the Act and perform functions or exercise powers under s 65 of the Act to grant or refuse to grant Protection visas. This is “Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)” (Direction 75).[22] Direction 75 sets out the following Principles:
1.Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.
2.The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia’s security.
3.It is unacceptable to grant a Protection visa to a non-citizen who is considered to present serious character or security risks to the Australian community.
4.Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.
[22] Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017).
Part 2 of Direction 75 explains the “order” that decision-makers are to follow when assessing Protection visa applications which raise character or security concerns. Relevantly, it states:
...
2.Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).
3.Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker [sic] must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
(a) Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4.If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.
5.The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
Under the heading “Danger to the Community”, the Refugee Law Guidelines[23] provide:
[23] Department of Home Affairs, Refugee Law Guidelines (15 November 2022).
3.26.3. Danger to the community
The Australian courts have determined that the approach to the assessment of whether an applicant, having been convicted of a particularly serous crime, is a danger to the community has two distinct considerations:
1.whether, at some time in the past, the applicant has been convicted by a final judgment of a particularly serious crime (see 3.26.1 Convicted by a final judgment and 3.26.2 Particularly serious crime), and
2.whether the applicant is, at the time of the protection visa decision and into the future, a danger to the Australian community.
In other words, the conviction by a final judgment of a particularly serious crime alone is not sufficient to say that the applicant is a danger to the community. Nor is it sufficient to find that the applicant was once a danger. Rather, decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community.
Since the assessment of danger to the community is a consideration separate from the commission of a particularly serious crime, there is no ‘category’ of offending that will automatically result in a person being found to be a danger to the community. The assessment whether an individual is a danger to the community is one of ‘fact and degree’ to be ‘determined in the circumstances of a particular case. In WKCG and Minister for Immigration and Citizenship (WKCG), the Tribunal listed factors that assist in assessing whether a person is a danger to a member or members of the community:
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed.
Those relevant considerations were described as pertinent by Logan J in DOB18 v Minister for Home Affairs.
In forming a view of the risk of recidivism, re-offending or relapse, decision makers can consider the factors listed in WKCG, such as mitigating and aggravating circumstances during commission of the offences and the totality of the applicant’s criminal record. As noted in Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs:
… The rehabilitation of a migrant who has suffered a conviction is not only in his interests - it is in the interests of the community of which he is a member. In the present case, the prospect of rehabilitation is the principal issue …
…
Rehabilitation is never certain. One cannot predicate of an offender that he will not fall again, whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk …
(Footnotes omitted.)
THE PARTIES’ CASES
The applicant
The applicant was not legally represented and did not file a statement of facts, issues and contentions. The applicant filed documents which, in conjunction with the oral submissions made at the hearing, set out his case. The documents were as follows:
(a)Email dated 12 October 2021 enclosing document headed “Induction Mental Health Screen” dated 1 September 2021.[24] It is not apparent on the face of this document who prepared it, however, from its content I assume that it was a document prepared by the Department of Home Affairs or a Department health service provider. It identified the applicant’s location at that time as Christmas Island. It contained an assessment of the applicant’s physical and mental health and his current medications. Amongst other things, it assessed the applicant’s risk of self-harm, suicide and risk to others as being low. The applicant’s covering email of 12 October 2021 referred to that risk assessment.
[24] A3.
(b)Statement of the applicant, undated, received by the Tribunal on 7 October 2021.[25] Relevantly, that statement was as follows:
[25] A5.
It is undeniable and I fully admit that I have committed a crime, and there is no excuse for the damage done in the past. However, I will demonstrate that I have changed and have strategies in place to prevent re-offense and harm to the community.
I also want to maintain access to my 3 children and this is strong motive for me to ensure continuation of my change of heart.
I spent the time between June 2015 and June 2018 in prison and learned about the love of God and what He expected of me. I had Christian cell mates and we studied God’s Word together. This lead to a change of heart and deepening of my remorse. I made an inner promise to do all I can to make sure this will never happen again. As I surrender fully to God, He gives me the strength and the way to overcome evil.
…
The Lord Jesus said: “Repent, for the Kingdom of heaven has come near.” (Matthew 3:2);
In order to back up my commitment to the community, I have put into place the following strategy. A therapist, Christine Oliver, has agreed to help me manage my behaviour and manage any risks that could lead me away from my commitment. A Christian friend, [omitted], has agreed to give me accommodation, daily support and encouragement. Pastors [omitted] and [omitted] of [omitted] Church have invited me to join their church and will support my commitment to God. I have a number of job offers and will be able to support myself financially and not be a burden to the community.
…
Please refer to documents I sent previously to back up my commitment.
·     Support letter of therapist, Christine Oliver
·     Support letter of a Christian friend, [PL]
·     Support letter Pastors [omitted] of [omitted] Church
·     Support letter of friend, [omitted]
·     Job offer of [CE].
(Errors in original.)
(c)Letter from Christine Oliver dated 20 August 2021 on Stillwaters Christian Counselling Service letterhead. Ms Oliver describes her qualifications as “B.A., Grad.Dip. Christian Counselling.” Ms Oliver states that she has had contact with the applicant since 2017, initially through mail and email and then “a number of times through emails and phone calls”. She goes on to state, relevant to present purposes, that:
I wish to also state that the offer of ongoing therapy is available to him if he is granted a Protection visa…
While in prison he became a Christian and, in my view, he is demonstrating genuine change and genuine understanding of such a commitment. From my observations he has developed insights and convictions as to his personal behaviours that resulted in a prison sentence. I also think that this prison experience and in conjunction with his realisation and conviction of keeping consistent with his faith, means that he is able to move forward in a more upright and safe manner with other people with the Australian community.
(d)Letter dated 26 August 2021 from PL. Relevantly PL stated:
(i)That he is a good friend of the applicant, who he met in Silverwater Prison in July 2015.
(ii)The applicant advised him what he had been charged with and was sorry that he committed the offences.
(iii)PL was released from prison in 2016 and since the applicant’s “release” (presumably from prison into immigration detention,) he and the applicant have “grown closer as Christian brothers” and that he is aware of the applicant’s “commitment to God’s service”.
(iv)He and the applicant participated in Bible studies, and he saw the applicant “grow closer to God” and try to become a person that would make a contribution to the Australian community.
(v)The applicant asked PL to put him in touch with PL’s therapist, Ms Oliver.
(vi)The applicant will have support from PL’s church and its pastors.
(e)Letter dated 5 February 2020 on [omitted] Church letterhead, signed by pastors [omitted]. They say that it is their intention to support the applicant “spiritually and emotionally” in his “appeal to stay in Australia.” They further say that “successful rehabilitation is aided by biblical mentorship and accountability” and that they offer “both group and one on one training which we have seen historically provide successful outcomes”.
(f)Letter dated 7 July 2018 from a friend of the applicant addressed to the National Character Consideration Centre. The author stated that:
(i)His family and the applicant’s family have a close friendship. The children play together.
(ii)The applicant loves his children very much.
(iii)The applicant and his family regularly attended the Chinese Church.
(iv)The applicant was studying the Bible while in prison and attended chapel weekly.
(v)The applicant had told the author that he understands the terrible impact that his offending had on his family, the victims, church and friends.
(vi)The author has invited the applicant to live with them when he is released.
(g)Letter dated 18 March 2020 from CE who has a company that constructs houses, granny flats and residential extensions, stating that he has reviewed the applicant’s work history and that, based on his experience and training, the applicant is someone that he would be happy to offer a trial period of employment.
(h)Letter dated 19 March 2019 from Colin Sheehan, Chaplain, of the Long Bay Correctional Complex Chaplaincy Service stating that:
(i)Between August 2015, when the applicant entered Long Bay, up until his release into immigration detention in June 2018, he had regular contact with the applicant.
(ii)The applicant demonstrated concern for the spiritual wellbeing of others, including his family and other inmates and maintained constant telephone contact with his children.
(iii)The applicant and his wife were divorced in the middle of 2016.
(iv)The applicant was sexually violated by a family member when he was six years old. This person coerced the applicant into silence and exposed the applicant to intensive and explicit sexual conversations and “mental sexual abuse” over a six-month period.
(v)This abuse left him “for the remainder of his life with an unhealthy and untreated preoccupation and struggle with pornography and inappropriate sexual addiction”
(vi)The sexual abuse left unchecked and untreated by the applicant had a terrible damaging sexual effect on the applicant.
(vii)The applicant’s behaviour while in Long Bay was good and the applicant did seek to address his personal responsibility for his offending.
(viii)The applicant had positive hope and plans for the future.
The Minister

The Minister’s SFIC made the following submissions and contentions:
(a)Section 36(1C) was inserted into the Act by the Amending Act.[26] The Explanatory Memorandum to the bill for that act stated that s 36(1C) was intended to codify art 33(2) of the Refugees Convention, which provides for an exception to the principle of non-refoulement where there are reasonable grounds for regarding a claimant for refugee status as a danger to the security of the country, or who has been convicted of a particularly serious crime.
[26] Citing sch 5, div 2, item 9
(b)Article 33(2) was considered by the Tribunal in WKCG and Minister for Immigration and Citizenship[27] and BHYK and Minister for Immigration and Citizenship.[28]
[27] [2009] AATA 512.
[28] [2010] AATA 662.
(c)In WKCG, Deputy President Tamberlin held in relation to art 33(2) (at [25]–[31]):
(i)Whether a person constitutes a danger to the Australian community is a question of fact and degree (at [25]).
(ii)Relevant considerations include:
A.    the seriousness and nature of the crimes committed;
B.    the length of the sentence imposed;
C.   any mitigating or aggravating circumstances; and
D.   the extent, duration and nature of any criminal history.
(iii)The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community (at [26]).
(iv)A person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism (at [27]).
(v)Once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question of whether the person can be described as being a “danger”. However, it is not conclusive. It is necessary to look at the person’s conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions… (at [29]).
(vi)The Minister quotes the definition of “danger” at [31] of WKCG.
(d)The considerations identified in WKCG are not exhaustive. All clearly articulated and relevant contentions by the parties must be considered.
(e)The Minister referred to Logan J’s statements on the meaning of the word “danger” in this context in DOB18 v Minister for Home Affairs,[29] which concluded that the relevant state of satisfaction is that the person “is and will into the indefinite future be a danger, not that the person once was a danger.” Logan J held that it could be accepted that whether a person is a “danger” is a question of fact and degree necessarily determined in the circumstances of the particular case, and that the considerations identified at [26] of WKCG were pertinent.
[29] [2019] FCAFC 63; (2019) 269 FCR 636.
(f)Ministerial Direction 84 requires decision-makers to take account of the Refugee Law Guidelines and “Complementary Protection Guidelines" prepared by the Department of Home Affairs and country information assessments prepared by the Department of Foreign Affairs and Trade, to the extent that they are relevant to the decision under consideration. The Minister cites an earlier version of the Refugee Law Guideline quoted at [32] above.
(g)The applicant has been convicted by a final judgment of a particularly serious crime.
(h)The offences of which the applicant has been convicted involved violence.
(i)The maximum penalty for sexual assault under s 61I of the Crimes Act 1900 (NSW) was imprisonment for 14 years, and the maximum penalty for indecent assault under s 61L of the Crimes Act was five years imprisonment.
(j)In relation to the seriousness of the applicant’s offending, the Minister submitted that:
(i)The applicant’s offences were sexual offences, perpetrated by him in his employment, involving a breach of trust by him, and in circumstances where his victims were in a position of vulnerability.
(ii)The seriousness of the 2008 offences was such that they required the imposition of a custodial sentence, albeit suspended due to the applicant’s particular circumstances.
(iii)The 2015 offences were considered by the sentencing judge to be “plainly serious” as evidenced by the maximum penalties that applied and, in the case of sexual intercourse without consent, by reference to the standard non-parole period.
(iv)The Minister cites Member Eteuati’s assessment of the seriousness of the applicant’s offending in the previous Tribunal decision at [73]–[74] and to the impact that the applicant’s offending had on the victims at [80]–[81].
(v)The Minister points to the length of the sentences imposed and notes that imprisonment is a sentence of last resort.
(k)In relation to the risk of the applicant re-offending, the applicant’s claimed experience of sexual assault as a child does not mitigate the seriousness of his offending or the likelihood that he will reoffend. The applicant’s experience or claimed experience of childhood sexual assault combined with the fact that he has not received any adequate and sustained psychological treatment in relation to this experience is a factor that heightens his risk of reoffending.
(l)As with the applicant’s claimed experience of childhood sexual assault, his problem with or addiction to pornography was potentially a factor that contributed to his offending.
(m)The applicant offended knowingly, deliberately and was conscious of the unlawful nature of his behaviour. The applicant was convicted of the 2008 offences (following his guilty plea) and sentenced to a term of imprisonment, wholly suspended. He proceeded to commit the 2015 offences with full knowledge of their unlawfulness. The applicant only changed his plea to guilty in relation to the 2015 offences after the judge had ruled that his previous convictions were admissible in evidence.
(n)The applicant chose to return to employment as a masseur, thus facilitating his commission of the 2015 offences.
(o)The applicant’s offending has taken place during two periods of time separated by approximately seven years (in 2007 and 2014). The applicant’s offending has escalated in its severity. Dr Wojnarowska also expressed the view that the applicant’s offending escalated in seriousness.
(p)Evidence concerning the applicant’s risk of recidivism is summarised in the previous Tribunal decision.[30]
(q)With the benefit of additional information, the professional/expert assessment of the applicant’s risk of reoffending has increased. In her report of Dr Wojnarowska opined that the applicant needed psychological treatment and assessed the applicant’s risk of reoffending as moderate. She noted that the applicant “plans to live with another sex offender may increase his risk of reoffending in the community”.
(r)The applicant has very little community support. He is now divorced from his wife. He appears to have placed, and may still place, undue reliance on the ability of his religion to prevent him from reoffending.
(s)From October 2022, there has been no prohibition on the applicant returning to work as a masseur. He could also undertake this sort of activity outside of a formal employment situation. As the Tribunal found (previous Tribunal decision), even if the applicant does not return to work as a masseur, “there remains a risk that he will put himself in a position where he can continue to commit sexual crimes against women.”
(t)Experts have repeatedly indicated that the applicant needs to undertake psychological treatment to mitigate his recidivism risk. He has not done so.
(u)The applicant has had ample opportunity, particularly since 2017 throughout the extended process of decision-making that has occurred with respect to his visa cancellation and protection visa application, to act on the various expert recommendations that he engage in psychological treatment. He has not availed himself of that opportunity.
(v)There is no evidence that Christine Oliver has the necessary qualifications and/or expertise or that she can provide the treatment required by the applicant. Dr Wojnarowska opined that the applicant has reasonable prospects of rehabilitation into the foreseeable future. However, this was provided “he engages in treatment with a psychologist who has experience in working with sexual offenders.”
(w)The Tribunal should find that the applicant has no genuine intention of obtaining the necessary psychological treatment or counselling. The Tribunal should also find the applicant has no genuine intention of engaging with any form of sex offender program if he is released into the community, and there is no real likelihood that he will do so.
[30] Citing R1, 604 [89]; Ms Jenny Howell in 2008, Mr Sam Borenstein in 2005 and Ms Julia Weinsein in 2017.
CONSIDERATION
As the Minister noted in his SFIC, there are two leading, and potentially conflicting, authorities on the interpretation of s 36(1C)(b) of the Act, namely WKCG and DOB18. Deputy President Tamberlin’s statements in WKCG are often cited as the preferred statement of the meaning of “danger to the Australian community”. I note that the Refugee Law Guidelines now[31]refer to both WKCG and DOB18. The Refugee Law Guidelines, citing [88] of DOB18, direct that “… decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community”. The factors set out in WKCG (see [32] above) for making that determination are also replicated in general terms in the Refugee Law Guidelines.[32] Deputy President Tamberlin said in WKCG:
25. The question of whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
26. Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
...
31. The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable”.
[31] Note: the Refugee Law Guidelines were amended on 15 November 2022, being after the hearing.
[32] Refugee Law Guidelines paras 3.26.3.1–3.26.3.4.
Until the judgment in DOB18, the legal position was reasonably clear. As Logan J noted at [76] in DOB18:
In Australia, an influential case in relation to the subject of “danger” as used in Art 33(2) of the Refugee Convention and now in s 36(1C) of the Act has proved to be the Administrative Appeals Tribunal case, WKCG...
As his Honour noted, various aspects of Deputy President Tamberlin’s approach in WKCG have been followed in subsequent cases. At [77] of his judgment, Logan J noted that:
SZOQQ was determined by the Administrative Appeals Tribunal on the basis, promoted by the parties, that WKCG was correctly decided, as it was before the Full Court. But the Full Court expressly left open the correctness of WKCG.
At [78] Logan J observed that:
... it be accepted that considerations to which the Deputy President adverts at [26] are pertinent. In EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (EWG17), Collier J referred to WKCG with apparent approval but her Honour’s approval (at [52]) expressly related to the proposition (found in WKCG at [25]), that “danger” must be determined in the circumstances of a given case.
At [80] Logan J noted:
My own further researches have disclosed that, also last year, WKCG was additionally referred to in this Court by Charlesworth J in AFY18 v Minister for Home Affairs [2018] FCA 1566 and by Siopis J in Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27. In neither case was there any need to consider the correctness of all that was said in WKCG about “danger”.
As alluded to by Logan J, the Tribunal has on numerous occasions adopted the approach taken by Deputy President Tamberlin in WKCG.[33] As noted above, that approach is also adopted in the Refugee Law Guidelines.
[33] RWDX and Minister for Home Affairs [2019] AATA 123; MVLW and Minister for Immigration and Border Protection [2017] AATA 1557; HSCK and Minister for Home Affairs [2019] AATA 4392; SQDD and Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] AATA 2980; MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 119.
I read Logan J’s judgment in DOB18 as saying that the particular aspect of Deputy President Tamberlin’s decision with which his Honour had an issue, was the Deputy President’s test for “danger” as set out in [31] of his decision, namely that “... it will be sufficient if there is a real or significant risk or possibility of harm ... It is not necessary to establish that there is a probability of a real and immediate danger of present harm”. (Original emphasis.)
Logan J’s view at [83] and [85] of his judgment was that:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that [sic] just “risk”.
...
Within the Act, s 5H(2) in the definition of “refugee” can be seen to be responsive to Art 1F in the same way that s 36(1C) can be seen to be responsive to Art 33(2). In Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, at [16], the United Kingdom’s Supreme Court held that Art 1F of the Refugee Convention should be interpreted narrowly and restrictively, because of the potential consequences of excluding someone from the application of that convention. That same “potential consequences” rationale should, in my view, inform the construction of s 36(1C) of the Act.
In HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[34] the Tribunal did not consider that there was any necessary inconsistency between WKCG and DOB18, as WKCG did not equate “danger” to mere “risk”, but rather it would be considered sufficient for “danger” to be established if there is a real or significant risk or possibility of harm to one or more members of the Australian community. I agree that that is the case.
[34] [2020] AATA 1967.
In LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[35] Jackson J held that the standard does not rise to the level of “very serious danger”. In relation to DOB18, Jackson J noted at [62]:
To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’ and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of ‘very serious danger’ urged on behalf of the applicant.
[35] [2019] FCA 1591.
In relation to whether consideration of s 36(1C) requires a balancing exercise, Jackson J at [63] of his judgment in LKQD found:
... the decision in SZOQQ is authority for the proposition that Art 33 requires no balancing between the undesirability of refoulement and the danger to the Australian community that an applicant may pose. SZOQQ was overturned in the High Court, but on a different ground that had not been put to the Full Court: see SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 251 CLR 577 at [16]. The Tribunal in the present case committed no error in following the Full Court in SZOQQ. The published opinion of the UNHCR in the note referred to cannot change that.
I am satisfied that the relevant considerations in assessing whether the applicant is a danger to the community are those identified in [26] of Deputy President Tamberlin’s decision in WKCG (see [35] above), read in light of Logan J’s comments in DOB18. This is the approach adopted by the Refugee Law Guidelines (see [38] above). Each of those factors is considered below. I also address Logan J’s interpretation of the meaning of “danger to the Australian community” in [83] of his judgment in DOB18 (see [42] above).
Nature and seriousness of the crimes committed
The 2008 offences were sexual offences against women that had placed their trust in the applicant, who, for his own sexual gratification, breached that trust in the most fundamental way. The 2008 and 2015 offences are serious Australian offences as defined in s 5 of the Act. At least one of the 2015 offences involved violence against a person[36] and the 2008 and 2015 offences were punishable by imprisonment for a maximum term of not less than three years[37] (see [29] above). They were, therefore, particularly serious crimes as defined in s 5M of the Act (see [28] above).
[36] The Act s 5, definition of “serious Australian offence” sub-s (a)(i).
[37] The Act s 5, definition of “serious Australian offence” sub-s (b)(iii).

Judge Blackmore in sentencing the applicant on the 2015 offences characterised the applicant’s offending as serious sexual offences. His Honour observed that the fact that the offences were committed in breach of trust aggravated the seriousness of the offending. His view was that the offences committed could not be described as falling towards the bottom of the range for such offending (see [21] above).
The seriousness of the 2015 offences was described by Member Eteuati at [80] and [81] of the previous Tribunal decision as follows:
As noted by the sentencing judge, the offences committed by the Applicant can only be described as offences of a violent and sexual nature, committed against vulnerable people who had placed their trust in him as a masseur.
The Applicant’s offending had a profound negative effect on his victims. One of his victims was diagnosed as having acute stress disorder, which the diagnosing psychologist found was directly attributable to the Applicant’s offending. The victim of the sexual intercourse without consent offence described a number of physical and psychological injuries suffered as a result of the offending and the serious negative effect that the psychological injuries, in particular, had on her life and the lives of her loved ones. She said that at one point she contemplated suicide as a result of the Applicant’s offending. Another victim described that the Applicant’s offending as causing her to cry uncontrollably, that she had lost her strength and motivation for work, has become paranoid, developed a fear of Asian men, gained 15 kg and had a relationship break down.[38]
[38] R1, 602–3.
Member Eteuati noted at [82] that “[t]he Applicant himself admitted that his offending was serious.”[39] Similarly the applicant at the hearing of the present application admitted that his offending was serious and that it had “caused serious impact and harm”, especially to the victims.[40]
[39] R1, 603.
[40] Transcript at 13.
Member Eteuati, in my view, accurately and succinctly summarised the seriousness of the 2008 and the 2015 offences at [83] as follows:
The Tribunal is of the view that the Applicant’s offending conduct was very serious. The nature of the offending was that the Applicant indecently assaulted three women, and had sexual intercourse without consent with a fourth while they were in a vulnerable position and had put their trust in the Applicant.
The length of the sentences imposed
The applicant was sentenced to a term of imprisonment of two years, which was wholly suspended, for the 2008 offences. In relation to the 2015 offences, the applicant was sentenced to terms of imprisonment of one year and six months and four years with a non-parole period of two years and six months (see [12] and [17] above). While these sentences are at the lower end of possible sentences for these types of offences, the terms of imprisonment, particularly for the sexual intercourse without consent, were significant and reflect the judges’ views as to the seriousness of the applicant’s offending.
Mitigating or aggravating factors
The potentially mitigating factor is the applicant’s claimed sexual abuse by a family member/neighbour as a child. The possible role that that played was referred to by some of the medical practitioners who examined the applicant. The first medical practitioner to examine the applicant was forensic psychologist, Jenny Howell, who prepared a report dated 11 August 2008 for the applicant’s then lawyers.[41] In her report, Ms Howell set out in detail the information that she had been provided by the applicant. The report contained a section headed “Psychosocial History”. Under that heading Ms Howell referred to the applicant having told her that he went through puberty later than his peers, that he thought that he might have been suffering from a life-threatening illness when he was 16 and that that illness affected his physical and emotional development. He advised Ms Howell that as an adolescent he was very naïve, and only really understood his sexuality as a young adult. There is no mention anywhere in Ms Howell’s report of the applicant being sexually abused as a child.
[41] R2, 496–502.
The next report was that of clinical psychologist Sam Bornestein dated 16 June 2015.[42] Mr Borenstein recorded that the applicant had reported to him that he had been “sexually abused on three separate occasions by a neighbour when aged 7-8 years old.”[43] Mr Borenstein did not comment on what role that sexual abuse as a child may have played in the applicant’s offending.
[42] R2, 486–93.
[43] R2, 492.
The third, and most recent report, is that of Dr Wojnarowska dated 2 March 2022.[44] Dr Wojnarowska is a psychiatrist with, what she describes as, a sub-specialty in forensic and child and adolescent psychiatry. Dr Wojnarowska recorded at para 25 of her report the applicant as having told her that:
… during his childhood he was sent to live with an ‘uncle’ (non-biological neighbor) [sic] as his parents were struggling with providing for the six children. He lived with this uncle for one year where he was anally raped on ten occasions. He also reported that his uncle would frequently talk about sex and women with him. [The applicant] said that he had reported the assaults to his mother who allegedly did not believe [the applicant] and would not allow him to return home.
[44] R3.
At para 30 of her report, Dr Wojnarowska reported that the applicant:
… said that he is unable to explain what had triggered him to commit the offence. With further questioning [the applicant] reported an interest in Caucasian women and cited his childhood abuse as a contributing factor to the offences, explaining that this resulted in him not having a good understanding of boundaries.
At para 63 of her report, Dr Wojnarowska, in answer to the question of what therapeutic interventions would be required, responded:
Psychological Treatment: There is a possibility that there is some underlying sexual deviance. There is also the reported effect of his childhood experiences that he has never received treatment before and to explore further if pornography was a trigger to his offending.
And, at para 71, commenting on risk factors, Dr Wojnarowska noted:
On each occasion he provided different reasons for his offending, during my assessment he blamed his childhood sexual abuse.
Dr Wojnaroska further noted at para 70 that “there were inconsistencies in [the applicant’s] reported personal history … [he] didn’t tell the psychologist he was sexually abused”.
Even if I were to accept that the applicant was sexually abused as a child, neither of the medical practitioners to whom he made that claim identified abuse as a child as being a contributing factor to his offending. Only Dr Wojnarowska referred to the applicant as having attributed his offending to his having been abused as a child (see [56]–[57] above).
What would be considered as aggravating factors, and were treated as such by the sentencing judges, have been addressed above. The most obvious is that in the case of both the 2008 and 2015 offences, the breach of trust owed to each victim.[45] In all of the cases, the victims were vulnerable.
[45] In relation to the 2008 offences see [13] above per Conlon DCJ; in relation to the 2015 offences see [21] above per Blackmore DCJ.
A further aggravating factor is that having committed the 2008 offences, for which he received a suspended sentence, and having claimed at the time of sentencing that he was remorseful, that he appreciated that what he had done was wrong and that his faith would prevent him from offending again, the applicant offended again, even more seriously.
Risk of re-offending/likelihood of relapsing into crime and prospects of rehabilitation
Deputy President Tamberlin observed at [26] of WKCG that:
… The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
At [27] of WKCG, Deputy President Tamberlin further said:
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 (Salazar), Brennan J said at [100]:
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
At the hearing I asked the applicant why he was not a risk to the Australian community. His answer, through the interpreter, was:
First, I acknowledge what I did – what – my offence was serious offence or crime. I also understand that what I did, my offences, have caused serious impact and harm to all the people around me, including my family members, my church friends and those who are close to me. And I realise that because it came from the conscious of my heart.
…
… As I realised that what I did has caused serious impact on my family, my friends and the community. So I am deeply repentant to what I have done before and I want to correct myself.
Under such circumstances, I’ve been seeking positive force and cause to correct myself and to reprimand myself and as I said, because what I did was very bad impact to myself and to the community. So I seek help with the therapist, Christine. I have also shared my inner suffering caused by the serious impact I had before and I realise that what I did before was so – was unforgiveable and also it’s humiliation, it’s very bad and hateful.
And so I have reflected on what I did before and tried to find the source or the origin why I became like that and why I did what I did. And then I realise that from what I did, it reflected that I didn’t have the conscience to other people and I have some very bad ideas or ideology in my deep inner self.
…
I also tried to understand other people and tried to get understanding from other people. And so I have been seeking help from the church and get the help to – get them to help me to get out of such situations, such bad nature. I want to stand up again and to be like a normal person and so I tried to get a job and get therapy so that I can work out of my dilemma and my problem so that I won’t cause any harm to other people and to the community.
Then I also realised the occupation I did before, massage, was a dangerous occupation for me and it provided dangerous environment for me to get into those offending. And so I’m trying to get out of those situation, get out of those environment and I am truly repentant and so that I want to get some positive help and try to get people to supervise me, not to do the same offence.
…
And so during the course of my repentance I convert myself to Almighty God and became a Christian and accepted God’s guidance and I’m going to follow him and get away from those wrongdoings and offences. So I am seeking reform myself and find out the essence of my own nature and try to get to know myself and reflect on my offences, truly repentant to correct myself and trying to seek the truth of myself.
…
… Today I’m opening my heart to the Minister and I want to tell him that what’s the truth in my heart and show my true self to him. As I’m now a Christian, so I have full respect and fear for God. And I know that only when I’ve got the fear and respect for God I can be - I can go away from the viciousness and cause no more harm to other people in the community and get away from my criminal deed and get away from harmfulness to other people. I will truly follow God’s request for me to do what he ask me to do. And I realise that only with respect and fear to God I can be the right person his instruction, because God is almighty God.
…
… If I’m allowed to get back to the community, I can choose other occupations such as carpentry - tilers, and I can also drive a forklift because I’ve got licence for all this. And I got an offer to work on the construction site offered by Carl, so that by doing all these jobs I can get away from my previous environment. And I’m also going to join a church to receive the supervision of my behaviour and to receive the guidance to correct myself so that I can be a new, normal person and get their help to correct myself. I am also going to seek for spiritual development and also mental help. My therapist, Christine, has offered me free therapist to help me, and I’m going to establish myself physically, spiritually and in my behaviour so that I can get away from the viciousness and the bad-doing, so that I cause no more harm to people in the community. At the same time that [PL] has offered me to stay with him temporarily for my temporary residence.[46]
[46] Transcript at 13–6.
The applicant also referred to wanting to be a good father and provide a positive environment for his children.[47] The following exchange then occurred:
[47] Transcript at 16.
DEPUTY PRESIDENT:         So, before 2008 - I’m looking at a statement, and it   appears on page 75 of the T documents. This is a    handwritten statement that you made and it says - this   is the Christian - I think it’s Christian Live of My Faith:
In 2008 I was baptised in the C3 Church [omitted] and I went to the BLCCNS Church in      [omitted] in 2009.
So, can you recall making that statement?
APPLICANT:  Yes. The first I joined in the Church I had my baptism   is C3 Church in [omitted], and because at this time my    English is not so well so I could not fully understand   English, the pastor preaching, so I’m seeking for the   Chinese Church that’s called BLCCNS in [omitted].   That was in 2009, so since that I did join into that   Chinese Church, and then that’s helping me to   understanding more about Bible.
DEPUTY PRESIDENT:         And would you say that in 2008/2009 when you were   going to the Chinese Church in [omitted], did you    study the Bible then?
APPLICANT:  Yes, I do.
DEPUTY PRESIDENT:         And did you accept the word of God then in 2009?
APPLICANT:  Yes, I did. Yes.
DEPUTY PRESIDENT:         Okay. Well, why then did you commit offences in 2015   that you did if you believed in the word of God?
…
APPLICANT:  Yes, as I said I was baptised in 2008 and I changed to   a Chinese in 2009, and as you asked me why I make    offences in 2015, and because even at that time in   2009 I learned from the Bible but I didn’t have the full   understanding of the truth, and I didn’t realise that it   was the truth from the book and I didn’t do as a true   Christian.
…
DEPUTY PRESIDENT:         Your faith and your understanding of the Bible and   Christianity didn’t stop you offending in 2015, did it?
APPLICANT:  That was right, because at that time I didn’t have the   true faith and I did - my belief in the Christianity was    just very superficial, shallow. I didn’t have the deep    understanding and the deep belief, and that was why   I committed the wrongdoing.
…
DEPUTY PRESIDENT:         - - -in 2008 of having sexually assaulted a number of   women, weren’t you?
APPLICANT:  Yes, I did.
DEPUTY PRESIDENT:         So, you knew it was wrong?
APPLICANT:  Yes, I did.
DEPUTY PRESIDENT:         And what - - -
APPLICANT:  In my conscience I realised that.
DEPUTY PRESIDENT:         And are you saying that notwithstanding you went to   Church every Sunday up to the time of your arrest in    2015, your Christianity did not tell you that to sexually   penetrate a woman without her consent and assault   her was wrong?
APPLICANT:  At that time I - even though I admitted myself as a   Christian, however, I didn’t really have true respect    and fear to the Almighty God, and so whatever I did I   did for my own desire and my own will. At that time I   only wanted to fulfil my physical needs, and my sexual   needs, and so I committed a crime. But when I   reflected back I feel that my consciousness at the time   felt it was wrong, however, just because at the time I   did not have the respect and fear to God.[48]
[48] Transcript at 16–20.
The statement provided by the applicant, the relevant part of which is quoted at [33(b)] above, is along the same lines as the applicant’s evidence at the hearing. He is reliant on his faith and his religious beliefs to prevent him from offending in the same way that he has, twice, in the past. The obvious problem with that reliance on his faith is that it did not prevent him from offending in the past.
A further obvious concern is that the person with whom the applicant intends to live if he were to be allowed to stay in Australia, PL, is, like the applicant, a convicted sex offender. He was convicted of possession of child pornography.[49] That is a concern also raised by Dr Wojnarowska (see [77] below).
[49] Transcript at 32.
Since 2008, there have been a number of assessments made of the applicant’s risk of re-offending. Judge Conlon, in sentencing the applicant on the 2008 offences (see [15] above), referred to the report of Ms Howell dated 11 August 2008.[50] In that report Ms Howell said:
Assessment using the Static 99 and SONAR suggests that [the applicant] has a low risk of future sexual offending behaviour. Technically, [the applicant] demonstrates a number of strengths including his insight into the effects of his behaviour, his acknowledgement of full responsibility for the offences and acknowledged remorse for his actions. [The Applicant’s] wife is fully aware of his offences and has indicated that she is committed to their relationship and is positive and supportive of him.[51]
[50] R2, 496–502.
[51] R2, 501.
As we know, the applicant did go on to commit even more serious sexual crimes. Also, the apparent stabilising factor identified by Ms Howell, the applicant’s wife and her commitment to the relationship, is no longer a factor. The applicant and his wife divorced in 2016.
Mr Borenstein in his report dated 16 June 2015,[52] prepared for the applicant’s sentencing on the 2015 offences, made the following assessment:
On this occasion, the Static 99R result indicates low to moderate risk factors.
[The applicant] presents as significantly depressed and anxious with regards to the prospect of incarceration. [The applicant] realises and accepts he will never return to massage work. In my opinion the likelihood of [the applicant] reoffending outside of that work context is extremely low.
…
[The applicant] is not a sexual predator. When given an opportunity as was the case in working as masseur, [the applicant] responded inappropriately to sexual urges, which represents a focal point of intensive treatment with myself.
The likelihood of [the applicant] reoffending is negligible. He remains resolved never to return to working as a masseur again.
…
[The applicant] will continue to participate in intensive treatment over the next 12 months, reinforcing the notion of personal responsibility and self-regulation and address unresolved issues regarding history of sexual abuse in childhood.
The likelihood of [the applicant] reoffending outside of the context of providing massage is, in my opinion, extremely low.[53]
[52] R2, 486–93.
[53] R2, 492–3.
While in prison, the applicant was reviewed by Ms Weinstein who assessed the applicant using the STABLE 2007 tool on 8 December 2017. Her assessment was that the applicant had a definite problem with “significant social influences” and “sex as coping”. Ms Weinstein recorded that the applicant fell in the moderate range for STABLE, moderate – high for Static-99, moderate – high for SOSA, and recorded a risk of reoffending as 6.6% in two years and 9.2% in four years.[54]
[54] R1, 605–6.
The most comprehensive, and significantly most recent, report is that of Dr Wojnarowska dated 2 March 2022. Dr Wojnarowska undertook a risk assessment of the applicant reoffending using several predictive tools. Relevantly her report was as follows:
Description of the Instruments Used in the Assessment
39. Static-99R is used to position offenders in terms of their relative degree of risk for sexual recidivism based on commonly available demographic and criminal history information that has been found to correlate with sexual recidivism in adult male sex offenders. Static-99R contain 10 items, which are added together to create a total score. Static-99R does not measure all relevant risk factors and the person’s recidivism risk may be higher or lower than that indicated by Static-99R based on factors not included in this risk tool and it has a moderate accuracy.
40. The Hare Psychopathy Check-list – Revised (PCL-R) (Hare 1991 and 2002). The PCL-R assesses the extent to which an individual’s personality structure conforms to the clinical construct of psychopathy. The score obtained is an important component of other risk assessment tools including Structural Clinical Guides.
41. The Risk of Sexual Violence Protocol (RSVP) was developed over a period of four years and the development process comprised of literature review, review of existing guidelines and risk assessment procedures, construction of new guidelines and feedback from the consumers. (Atkinson et al 1995, Boer et al 1997). The RSVP is intended for use with men and women aged eighteen and older who have a known or suspected history of sexual violence. While static risk factors such as prior offending history are generally used for evaluating long term risk, historical variables cannot be used to assess changes in risk over time. Dynamic variables are those characteristics of sex offenders that are capable of change and are divided into stable and acute. Stable dynamic risk factors have endured for long periods of time but have the potential to change through treatment such as deviant preferences.

Dr Wojnarowska’s report then interpreted the tests’ results and made the following observations:
Sexual Violence History
45. The risk factor of chronicity of violence is present: chronicity refers to the persistence and frequency perpetrated by the individual. It is not a causal factor rather a marker for the presence of other risk factors in particular attitudes that support or condone sexual violence or deviation. The frequency of sexual violence is one of the most reliable factors associated with recidivistic sexual offending.
…
47. Extreme Minimisation or Denial of Sexual Violence partially present: no minimisation. Currently no evidence of extreme minimisation or justification of his offences. Initially he pleaded guilty on both occasions in court however on the later [sic] he attempted to withdraw the guilty plea, following instructions from the judge he continued his guilty plea.
…
49. Problems with Self-Awareness present: [the applicant] appears to have a problem with insight into his offending behaviour blaming his offences on lack of sexual education and his history of child sexual abuse.
50. Problems with Stress or Coping partially present: [the applicant] reported to the previous assessors, that he has used sex as a coping mechanism at times when he was stressed or anxious. He denied this during my interview. Additionally, it was noted in past reports that he was also using pornography as means of dealing with stress. Again, he denied ever having any issues with his pornography use or that it was excessive.
51. Problems Resulting from Child Abuse present: [the applicant] reported that he had been sexually abused as a child and this was connected to his offending. As such [the applicant] would require psychological counselling to address his history of childhood sexual abuse.
…
55. In [the applicant’s] case the protective factors apart from his prosocial attitudes include no substance use problems and no history of alcohol or illicit drug use. He also appears to be genuinely committed to his children, maintaining regular contact with them. His affiliation with church can also be seen as a protective factor and his employment prospects are sound. His close friendship with the ex-prisoner may or may not be a risk factor for his future.
Risk scenario
56. As [the applicant] would not be subject to restrictions there is no reason, he could not enter the same profession under an assumed name as this is a largely unregulated industry. He could easily access women under the same pretences that he is offering massages by advertising on Facebook or any other social media.
…
58. He is likely to use his skills as a masseur or acupuncturist, in a similar manner and there will be women who would not be forthcoming with reporting him as they would be ashamed they allowed that kind of behaviour to take place.
59. [The applicant’s] history of offending is opportunistic and not predatory. The possible triggers may include [the applicant] feeling lonely and depressed and experiencing psychosocial stressors such financial hardship or any adverse life events associated with his children or other family members.
60. The likely risk scenario is [the applicant] encountering a vulnerable adult Caucasian female for example in a social situation and offering them a massage. He is unlikely to approach a stranger or engage in additional sexual violence such as using threats or physical restraint. As evidenced by his history of offending his preference is to establish some degree of a social connection with his victim.
61. There is a possibility that [the applicant] has a particular sexual interest in Caucasian women which he is unable to fulfil due inadequate social skills to approach and engage with women from a different culture.
…
(c) What is the applicant’s risk of criminal reoffending?
64. This question has been extensively answered under risk assessment summary paragraphs above. In summary his risk of reoffending is moderate. He has some protective factors to negate this risk but his plans to live with another sex offender may increase his risk of reoffending in the community. In addition, any psychosocial stressors such as financial stress could increase his likelihood of returning to masseur work and therefore increasing his risk further.
(Emphasis added.)
Dr Wojnarowska was also asked in the letter of instruction for the preparation of the report, whether ongoing therapeutic intervention was important. Her answer was that addressing the applicant’s issues in psychological treatment would significantly decrease his risk of future reoffending. In relation to the prospects of the applicant’s successful rehabilitation, Dr Wojnarowska’s opinion was that there were no major impediments to his rehabilitation “[p]roviding he engages in treatment with a psychologist who has experience in working with sexual offenders”.[55]
[55] R3, para 66.
Dr Wojnarowska gave evidence at the hearing. She was asked why it was relevant that the applicant could not identify the trigger for his offending. Her evidence was:
That indicates that he has still outstanding treatment needs; that he does not have a good insight into his offending pathway, what triggers him, which is highly relevant in preventing high-risk situations; and understanding for the person when he’s likely to engage in offending behaviour.[56]
[56] Transcript at 68.
Dr Wojnarowska was taken to another part of her report as follows:
COUNSEL:  In paragraph 33 of your report, the second sentence:
[The applicant] was unable to explain why his          actions were wrong or how the victims would        have felt as a result of the assaults.
COUNSEL:  Do you remember what the questions were that you   asked [the applicant] that 5 caused you to write that    sentence in your report?
DR WOJNAROWSKA:          So I ask him the standard question: why do you think   what you did was punishable by law and why this is    an offence. I also asked: why this is morally wrong,   ethically wrong. So he was not able to answer in a way   that perhaps a lot of people would, that there was no   consent involved in what he was doing. He also did   not mention the fact that he was in a position of trust,   and that he was providing a service to those people,   and it was a client - he had a relationship with a client,   which obviously if he breached that trust, it was   certainly not only morally wrong, but also trigger    charges or criminal proceedings. So he wasn’t able to   comprehend that.[57]
[57] Transcript at 68–9.
Counsel then asked Dr Wojnarowska about the applicant’s intention to live with PL and about the answers that the applicant had provided to my questions as to whom the applicant saw as the victims of PL’s offending:
COUNSEL:  …[the applicant] was asked repeatedly by the Deputy   President about whether there were victims of this sort    of crime, because [the applicant] had distinguished   himself - differentiated his offences from [PL’s] that       [ PL’s] offences didn’t have any victims. And he was   pressed on who were the victims, and did he think that   there were no victims of [PL’s] offences. Eventually   he gave the answer that the victim was [ PL], that      is the victim was in fact the person who had   perpetrated the offences; and his evidence was to the   effect that it was because PL] had witnessed or   seen this material online. I wonder if you have any   comment to make on … [the applicant’s] inability to   identify the children as the victims, and instead stating   that [ PL] was the victim of those offences?
DR WOJNAROWSKA:          Well, certainly that indicates a completely lack of   insight on his part; and again distorted cognitions in    relation to sexual offending.
COUNSEL:  Does that impact at all on your assessment of [the   applicant’s] - how does that feed into, if at all, on the    assessment of [the applicant’s] risk of reoffending?
DR WOJNAROWSKA:          That is certainly a factor that I would - this is new   information specifically in relation to pornography, and    I would say that it puts perhaps more weight into my   assessment of his risk in terms of perhaps increasing   the level of his risk.[58]
[58] Transcript at 69.
Dr Wojnarowska was then asked about Christine Oliver, the therapist whom the applicant had identified as potentially being able to provide treatment:
COUNSEL:  In relation to the Christian counsellor, her name is   Christine Oliver. Are you familiar with her at all?
DR WOJNAROWSKA:          Well, not personally, but I have Googled her.
COUNSEL:  The tribunal has before it some letters that she has   prepared, and it indicates that she has got a Bachelor    of Arts, and she also holds a Graduate Diploma in   Christian Counselling?
DR WOJNAROWSKA:          Yes
COUNSEL:  Is that a qualification that you’re familiar with?
DR WOJNAROWSKA:          I’m not, and when I looked into what she specialises   in, I was not convinced that she would be the right    person to provide [the applicant] with counselling. So   her specialty area is grief, trauma, marital problems,   anxiety, depression.
COUNSEL:  And what about her qualifications specifically? Would   it be sufficient to hold that graduate diploma, or do you    think that the treating practitioner for [the applicant]   needs other qualifications; and if so, what are they?
DR WOJNAROWSKA:          In my view he would benefit from seeing a clinical   psychologist. In my view he has very specific    treatment needs which I don’t believe he will be able   to address with the counsellor that he proposed, who   identifies herself very much as Christian, and a person   that specialises in trauma and grief. In my view [the   applicant] requires to gain insight into his triggers, into   the reason why he offended, and needs to develop   understanding of his sexual offence in this culture, this    country, and why this is…
COUNSEL:  In terms of the treatment from a clinical psychologist   that he would benefit from, over what period of time    would you envisage that taking place, and how   frequently?
DR WOJNAROWSKA:          Typically sexual offenders would require at least 12   months of treatment, with a frequency of starting with    once per week to - then perhaps fortnightly.[59]
[59] Transcript at 70.
The applicant relies heavily on his Christian faith to prevent him from re-offending as he has previously. That faith did not prevent the applicant offending in the past. The applicant’s evidence was that he now has a deeper faith and that his belief in Christianity previously “was just very superficial, shallow” (see [65] above). I am not satisfied that his faith will be any more successful in preventing him from offending than it was in the past. The applicant also places reliance on the assistance that Ms Oliver, the Christian counsellor, will be able to give him. I do not accept that, even if he were to receive counselling from Ms Oliver (and there is no evidence that he has made any arrangements for that to happen), that would be sufficient to prevent or materially reduce his risk of re-offending. I accept Dr Wojnarowska’s evidence that what the applicant needs is treatment from a properly qualified clinical psychologist to address his “very specific treatment needs” (see [78] above).
I, like Dr Wojnarowska, have significant reservations about the applicant’s intention to live with a convicted sex offender. Dr Wojnarowska’s evidence about the applicant’s lack of insight into PL’s offending, which involved child pornography, and the applicant’s own issues with pornography (although he appears to have denied that when being reviewed by Dr Wojnarowska), indicate that the applicant has little understanding of the causes of his offending and any likely triggers for future offending.
There was some reference to the applicant’s employment prospects as being a factor militating against him re-offending. However, the evidence of the applicant obtaining employment was scant. The letter dated 18 March 2020 from CE was that, on the basis of the applicant’s work history and experience and training, the applicant was someone that he would be happy to offer a trial period of employment (see [33(g)] above). That letter is now over two and a half years old. CE was not called to give evidence and there is no way of knowing whether that offer, which was only an offer of a trial period of employment, still stands. We also do not know whether CE was aware of the nature of the applicant’s criminal offending, given that his willingness to offer the applicant a trial period of employment was based on what CE s knew about the applicant’s work history, experience and training. This is insufficient for me to be satisfied that employment, or the prospect of a trial period of employment, would play a material role in reducing the risk of the applicant offending as he has in the past.
I place no weight on the letter from the pastors referred to in [33(e)] above which did little more than express a willingness to provide spiritual and emotional support. The letter does not indicate that they know the applicant or anything about his background or needs, nor does it indicate what relevant qualifications they have. They did not give evidence at the hearing. Similarly, I place no weight on the letter from the applicant’s friend referred to in [33(f)] above. The letter is over four years old and dealt with the impact that cancellation of the applicant’s visa would have on the applicant and his family. Again, that friend did not give evidence at the hearing, and there is nothing in the letter directly relevant to the consideration of the danger that the applicant poses to the Australian community. The letter from Colin Sheehan referred to at [33(h)] above provided some insight into the applicant’s understanding of his offending, including his claim of being sexually abused as a child, and confirms some of what the applicant told the psychologists and Dr Wojnarowska. Not surprisingly, it expresses no opinion on the risk of the applicant reoffending.
I accept Dr Wojnarowska’s assessment in para 64 of her report of 2 March 2022 that the risk of the applicant reoffending is moderate (see [73] above). I also note that Dr Wojnarowska’s evidence at the hearing was that, based on the applicant’s inability to readily identify the children being exploited in pornography as victims, that assessment of the risk of the applicant offending would increase (see [77] above). I am satisfied that there is a real or significant risk or possibility of harm to one or more members of the Australian community if the applicant were to be released into the community, thereby meeting the test in [31] of Deputy President Tamberlin’s decision in WKCG (see [35]) above).[60] The applicant poses an unacceptable level of risk of danger to the Australian community. In so finding, I am mindful of the statement of Goldberg J in Vabaza v Minister of Immigration and Multicultural Affairs[61] that:
The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.
[60] Note the statement of Deputy President Handley in BHYK that the test is whether the applicant is a risk to “one or more members of the Australian community.”
[61] [1997] FCA 148.
Even if the comments made by Logan J in DOB18 were to be taken to be setting a higher standard than that set out by Deputy President Tamberlin in WKCG, the standard set by Logan J is met in this case. At [83] of his judgment, Logan J stated that “read in context, ‘danger’ in s 36(1C) means present and serious risk” (see [42] above). If that is to be taken as the standard rather than that stated by Deputy President Tamberlin, then I find that, if the applicant were to be released into the Australian community, he would pose a present and serious risk.
DECISION
l find that:
(a)the applicant has been convicted by a final judgment of a particularly serious crime;
(b)the applicant is a danger to the Australian community; and
(c)as a result, the applicant does not satisfy the criterion in s 36(1C)(b) of the Act.
Accordingly, the decision of the delegate of the Minister made on 18 August 2021 to refuse the applicant the protection visa under s 65 of the Act is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

..[SGD].....................................................................
Associate
Dated: 23 December 2022

Date of hearing: 28 April 2022

Applicant: In person

Counsel for the Respondent: Ms K Hooper

Solicitors for the Respondent: MinterEllison

Date of hearing:	28 April 2022
Applicant:	In person
Counsel for the Respondent:	Ms K Hooper
Solicitors for the Respondent:	MinterEllison