JKWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2023] AATA 4491

JKWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4491 (29 September 2023)
Division: GENERAL DIVISION
File Number(s): 2023/0953
Re: JKWL
APPLICANT

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

DECISION

Tribunal:Senior Member Dr Linda Kirk
Date:29 September 2023
Place:Sydney

The Reviewable Decision of the delegate of the Respondent dated 16 February 2022 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under section 65(1)(b) of the Act is set aside and substituted with a decision that the Applicant meets the criteria in section 36(1C) of the Act and is eligible for the grant of a Protection visa under section 36 of the Act.
....................................[SGD]...................................
Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – refusal to grant a Protection visa – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – where Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – multiple sexual offences – decision under review set aside and substituted
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014(Cth)
CASES

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84

FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541
MVLW and Minister for Immigration and Border Protection (‘MVLW’) [2017] AATA 1557
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
PNLB and Minister for Immigration and Border Protection [2018] AATA 162

R v KAM [2016] QCA 35
SLGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1515
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434
SECONDARY MATERIALS

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967) – Art 33(2)
Refugee Law Guidelines: Procedural Instruction (Department of Home Affairs, reissued 27 November 2022)
REASONS FOR DECISION

29 September 2023

BACKGROUND AND REVIEW APPLICATION

1.JKWL (‘the Applicant’) is a 54-year-old citizen of the Democratic Republic of Congo (‘DRC’) born in May 1969.[1] On 25 March 2008,[2] the Applicant arrived in Australia as the holder of a Refugee (Class XB) (Subclass 200) visa (‘the visa’) granted to him on 18 September 2007.[3]
[1] Exhibit R1, T2, 11.
[2] Ibid, T14, 245.
[3] Ibid, T2, 11.

On 6 December 2013, the Applicant was convicted by the District Court of Queensland of three counts of Rape and one count of Indecent treatment of children under 16 (lineal descendent). On 20 March 2014, he was sentenced to imprisonment for eight years and 18 months respectively for these offences, to be served concurrently.[4] The victim of each of these offences was the Applicant’s daughter, IO, who at the time was aged 12 years. The offending occurred between the period 1 December 2010 and 7 February 2011.[5]
[4] Ibid, T5, 208ff.
[5] Ibid, T5, 209.
The convictions and sentences were upheld on appeal by the Supreme Court of Queensland, Court of Appeal on 26 February 2016 and 7 September 2017.[6]
[6]R v KAM [2016] QCA 35.
On 29 May 2017, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[7] On 23 June 2017, the Applicant sought revocation of the cancellation decision.[8]
[7] Exhibit R1, T2, 11.
[8] Ibid, 12.
On 20 November 2018, a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) decided not to revoke the cancellation of the Applicant's visa.[9]
[9] Ibid.
On 12 December 2018, the Applicant sought review of the non-revocation decision in the Administrative Appeals Tribunal (‘the Tribunal’).[10] On 11 January 2018, the Tribunal affirmed the decision not to revoke the cancellation of the Applicant's visa.[11]
[10] Ibid.
[11] Ibid.
On 3 December 2021, the Applicant was transferred to immigration detention at Brisbane Immigration Transit Accommodation (‘BITA’) following his release from criminal custody.[12]
[12] Ibid.
On 28 June 2022, the Applicant applied for a Protection (Class XA) (Subclass 866) visa (‘Protection visa’).[13]
[13]Ibid, T16, 247.
On 16 February 2023, a delegate of the Respondent refused to grant the Applicant a Protection visa. The delegate found that the Applicant met the refugee criteria in subsection 36(2)(a) of the Act, but considered on reasonable grounds that the Applicant, having been convicted by final judgment of a ‘particularly serious crime’, was ‘a danger to the Australian community’.[14] The delegate found that the Applicant did not satisfy the criterion in section 36(1C) and refused to grant the Protection visa under section 65 of the Act (‘the Reviewable Decision’).
[14]Ibid, T2, 7.
On 17 February 2023, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) pursuant to section 500(1)(c)(i) of the Act for review of the Reviewable Decision.[15]
[15]Ibid, T1, 1.
The application was heard by the Tribunal on 1 and 2 August 2023. The Applicant attended the hearing in person and was represented. He was assisted by an interpreter in the English and French languages.
The following witnesses gave oral evidence and were cross-examined at the hearing:
·the Applicant;
·Dr Emily Kwok, Clinical and Forensic Psychologist;
·Loraine Wallace; and
·Jean-Claude Dimoke.
The following documents were before the Tribunal:
·Respondent’s Statement of Facts, Issues and Contentions dated 2 May 2023 (‘RSFIC’);
·Section 37 T-Documents (T1 –17, pp. 1 – 253) (‘Exhibit R1’);
·Supplementary T-Documents (ST1 – ST5, pp. 1 – 140) (‘Exhibit R2’);
·Applicant’s Statement of Facts, Issues and Contentions dated 18 April 2023 (‘ASFIC’);
·Applicant’s Tender Bundle filed 18 April 2023 (‘Exhibit A1’);
·Report by Dr Emily Kwok (Psychologist) dated 11 April 2023 (‘Exhibit A2’);
·Statement of Engagement QPASTT dated 12 April 2023 (‘Exhibit A3’);
·Applicant’s Statutory Declaration and Certificates of Course Completion dated 18 April 2023 (‘Exhibit A4’);
·Queensland Police Services, Witness Statement of Gavin Baxter dated 25 May 2011 (‘Exhibit A5’);
·Queensland Police Services, Witness Statement of Jeffrey Halliwell dated 28 May 2013 (‘Exhibit A6’);
·Incident Report, Queensland Corrective Services dated 16 January 2016 (‘Exhibit A7’);
·Client Intake Sheet, Refugee & Immigration Legal Service Inc. dated 12 June 2017 (‘Exhibit A8’);
·Email from Wolston Correctional Centre dated 4 December 2017 (‘Exhibit A9’);
·Article from Crime and Corruption Commission Queensland dated October 2022 (‘Exhibit A10’);
·Offender Case File, Queensland Corrective Services dated 20 April 2023 (‘Exhibit A11’);
·Static-99R Assessment, Queensland Corrective Services dated 20 April 2023 (‘Exhibit A12’);
·Email – Bail Information dated 3 May 2023 (‘Exhibit A13’);
·Bail undertaking dated 7 June 2013 (‘Exhibit A14’);
·Psychological Assessment by Yvette Arello, Clinical Psychologist dated 14 June 2023 (‘Exhibit A15’);
·IOMS Offender File dated 4 May 2021 (‘Exhibit A16’);
·Legal Advice Case Notes dated 13 June 2017 (‘Exhibit A17’);
·Program History, Queensland Corrective Services filed on 17 July 2023 (‘Exhibit A18’);
·Tender Bundle containing four certificates of completion (‘Exhibit A19’):
-Child Abuse Recognition Investigation and Protection dated 26 April 2023;
-Emotional Healing 101 dated 27 April 2023;
-Goal Setting 101 dated 7 May 2023; and
-Developing Great Social Skills dated 6 May 2023.
·Certificate of Course Completion – Domestic Violence 101 dated 16 March 2023 (‘Exhibit A20’);
·Certificate of Course Completion – Anger Management dated 13 March 2023 (‘Exhibit A21’);
·Certificate of Course Completion – Emotional Intelligence dated 18 March 2023 (‘Exhibit A22’);
·Certificate of Course Completion – Critical Thinking dated 18 March 2023 (‘Exhibit A23’);
·Certificate of Course Completion – Stress Management dated 19 March 2023 (‘Exhibit A24’);
·Certificate of Course Completion – Problem Solving Strategies dated 19 March 2023 (‘Exhibit A25’);
·Certificate of Course Completion – Depression Management dated 20 March 2023 (‘Exhibit A26’);
·Certificate of Course Completion – Listening Skills 101 dated 20 March 2023 (‘Exhibit A27’);
·Certificate of Course Completion – Etiquette 101 dated 21 March 2023 (‘Exhibit A28’);
·Certificate of Course Completion – Decision-Making Skills dated 23 March 2023 (‘Exhibit A29’);
·Certificate of Course Completion – Interpersonal Communication dated 23 March 2023 (‘Exhibit A30’);
·Letter of Support by Jean-Claude Dimoke dated 27 July 2023 (‘Exhibit A31’);
·Letter of Support by Loraine Wallace dated 27 July 2023 (‘Exhibit A32’); and
·Applicant’s Response to the Respondent’s Statement of Facts, Issues and Contentions dated 17 July 2023.
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
REFUGEE CONVENTION AND LEGISLATIVE FRAMEWORK
Australia is a signatory to the 1951 Convention relating to the Status of Refugees (‘the Refugee Convention’), to which it acceded on 22 January 1954.
Article 33 of the Refugee Convention provides:
Article 33 prohibition of expulsion or return (“refoulement”)
1No 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.
2The 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 judgment of a particularly serious crime, constitutes a danger to the community of that country.
Section 36 of the Act relevantly provides:
Protection visas – criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a)both of the criteria in subsections (1B) and (1C); and
(b)at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)is a danger to Australia’s security; or
(b)having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b) see section 5M.
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) and was intended to codify Art 33(2) of the Refugee Convention.[16]
[16] 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).
Under section 5M of the Act, a ‘particularly serious crime’, as that term is used in section 36(1C)(b), is defined as follows:
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.
Section 5 of the Act relevantly provides a definition of ‘serious Australian offence’:
‘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.
ISSUES
The issues for determination are whether the Tribunal considers, on reasonable grounds, that the Applicant:
1)has been convicted by a ‘final judgment of a particularly serious crime’; and
2)is ‘a danger to the Australian community’.
EVIDENCE BEFORE THE TRIBUNAL
Background and family
The Applicant was born in Uvira in the South Kivu Province of the DRC in May 1969.[17] He is the eldest of seven children. His father was a surgeon and his mother a social worker.[18] The family lived in Kabanga when the Applicant was young.[19] The Applicant’s family experienced hardship due to the social and political instability in the DRC.[20]
[17]Ibid, T2, 11.
[18]Ibid, T2, 13; Exhibit A2, [8].
[19] Exhibit A4, [2].
[20] Exhibit A2.
The living circumstances of the Applicant’s family worsened significantly after his father passed away when he was 11 years old. The Applicant’s relatives took the family’s assets as they were entitled to do following his father’s death, and the family lost their home.[21] They were forced to relocate from Kabanga to Kinshasa, the capital of the DRC, as the Applicant’s mother was unable to earn enough money to support the family.[22] The Applicant attended school and worked for a photo studio between 1981 and 1986.[23]
[21]Ibid, [9].
[22] Exhibit A4, [2]; Exhibit A18, 5.
[23] Exhibit A4, [2].
Political activities and persecution
When the Applicant was aged approximately 16 years, he was arrested after leaving school when he was walking past a group of people who were members of the unofficial opposition party, the Union of Democracy and Social Progress (‘UDPS’).[24] The Applicant and the UDPS members were taken to Kokolo military camp where he was detained for six months.[25] He was interrogated and asked repeatedly whether he was a member of UDSP. When he said he was not a member, he was beaten, and he eventually falsely confessed to being a member of the UDSP ‘so the torture would stop.’[26] Following his release, the Applicant was ‘very angry and confused’, and he could not understand why he had been tortured for six months when he ‘was just an innocent bystander’.[27]
[24]Ibid, [3].
[25]Ibid, [3]-[4].
[26]Ibid, [4].
[27]Ibid.
The Applicant decided to become involved with the UDSP as he wanted to prevent what had happened to him and ‘demand DRC to be a fairer place.’[28] In 1988 when he was about 19 years old, the Applicant was arrested a second time when he and other UDSP members were marching on the street and demanding democracy. They were taken from Kinshasa to Kasai where they were detained for six months. They were told that they were to be ‘re-educated’ and ‘had to beg for forgiveness’ for supporting democratic values. The Applicant was ‘beaten mercilessly’ and was ‘terrified’.[29] During this time, the Applicant’s family thought he had been killed. He understands that the Red Cross was aware of the situation in Kasai and exerted pressure on the Government to release him and the other UDSP members. They were eventually permitted to write letters to their families to inform them that they were in Kasai.[30]
[28]Ibid.
[29]Ibid, [5].
[30]Ibid.
The Applicant’s third arrest was in April 1990 when he participated in a political march of around 100,000 people in Kinshasa. Military personnel arrived at the scene and started firing at the crowd, killing 10 people. At this time, the Applicant was the President of the youth wing of the UDSP and was well known. He was again taken to Kokolo camp where he was detained for a further six months and beaten repeatedly. The soldiers used a bayonette to slash his head and hands, and he still has scars from this torture.[31]
[31]Ibid, [5].
The Applicant was arrested a fourth time in June 1998, when he was marching in protest of the Government's decision to arrest the leader of UDSP. He was again taken to Kokolo camp and beaten, causing part of his intestines to go into his oesophagus and damage to his internal organs. In addition, four veins in his right leg were cut causing significant blood loss and rendering him unconscious. He was taken to Mamayemo Hospital where he stayed for about two months. When he was in hospital, the Applicant was advised by the Red Cross to leave the DRC and he subsequently departed to Brazzaville in the Republic of Congo (‘ROC’) where he was granted refugee status by the United Nations High Commissioner for Refugees (‘UNHCR’).[32] The Applicant remained in the ROC for the next 10 years.[33]
[32]Exhibit R1, T2, 14.
[33] Exhibit A4, [6]-[7].
The Applicant’s family was put in serious danger due to his political activities.[34] Two of his brothers were arrested by the security forces and imprisoned for several months in 2010. After their release, his brothers fled to the ROC.[35] One of his brothers has been missing since 2012-13 and the Applicant assumes he is dead.[36] In 2009, the Applicant’s sister was killed in her home by a soldier after she refused to leave the DRC.[37] In the same year, the Applicant’s younger brother went missing in the DRC, and is believed to be dead.[38]
[34]Ibid, [7].
[35]Ibid.
[36]Ibid.
[37]Ibid, [11].
[38]Ibid, [12].
The Applicant’s evidence is that his mother returned to the DRC in 2014 to seek financial assistance. Following her return, she was arrested and tortured, and died three days later.[39] The Applicant feels responsible for the death of his mother, as he believes that his political involvement was the reason she was arrested and subsequently died.[40]
[39] Exhibit A2, [10]; Exhibit A18, 5.
[40] Exhibit A18, 5.
Education and work history
The Applicant completed his primary and secondary schooling in the DRC and graduated from Kinshasa University with a Bachelor of History.[41]
[41] Exhibit A2, [11].
After completing university, the Applicant taught history at a high school in the DRC. He was also a high school teacher in the ROC from 1999 to 2001. In 2001, he left his teaching job to work at a service station, because it provided greater financial security for his family. He remained working at the service station until he came to Australia in March 2008.[42]
[42]Ibid, [14].
Relationships and children
The Applicant has four children from three relationships and three of his children are now adults. His eldest child lives in the ROC with their mother. His youngest son was born in 2007 and lives with his mother in the ROC. When the Applicant was working, he would send money to his children every fortnight. He currently has weekly contact with his two children in the ROC.[43]
[43]Ibid, [29].

The Applicant has two daughters who live in Australia, IO and JO, born in 1998 and 2001 respectively.[44] He commenced a relationship with their mother in 1996 which ended in 2007. After their separation, one of the daughters lived with the Applicant while the other daughter stayed with her mother. When the Applicant was granted a visa in September 2007, their mother gave the Applicant permission to take them with him to Australia.[45]
[44]Exhibit R1, T15, 246.
[45] Exhibit A2, [30].
Life and work in Australia
The Applicant arrived in Australia with his two daughters in March 2008 and they settled in Brisbane.[46] The Applicant rented a unit and lived there with his daughters. He completed a Certificate III in English at TAFE in 2008-2009.[47]
[46]Ibid, [26].
[47]Ibid, [12].
The Applicant engaged in voluntary work with Access Services assisting other refugees from March 2008 to December 2010.[48] The Applicant was offered paid employment with Access Services in February 2010 as a furniture removalist transporting furniture from furniture stores to the houses of refugees who were intending to resettle in the Logan Central area of Queensland.[49] Between 2010 and 2013, the Applicant was employed full-time by Australia Post as a postal delivery officer.[50] During the same period, he also worked as a process worker at an abattoir.[51] From March 2010 to February 2011, the Applicant worked 19 hours per day to provide for his family.[52] He regularly sent money back home to his siblings and to support his children.[53]
[48] Exhibit A4, [12]; Transcript of proceedings, 1 August 2023, 22.
[49] Exhibit A4, [14].
[50]Ibid, [14]; Transcript of proceedings, 1 August 2023, 22.
[51] Exhibit A2, [15]; Transcript of proceedings, 1 August 2023, 22.
[52] Exhibit A4, [14].
[53]Ibid, [10].
Mental health
After he arrived in Australia in March 2008, the Applicant was referred by the Department of Immigration to a psychologist for the purpose of addressing his trauma history. He attended 20 counselling sessions during the 12-month program which commenced on 22 April 2008. Narrative therapy was used to treat the Applicant’s Post-traumatic Stress Disorder (‘PTSD’) symptoms.[54] The Applicant found these sessions helpful in managing his symptoms.[55]
[54]Exhibit R1, T2, 157.
[55] Exhibit A18, 9.
In a report dated 14 May 2009, titled ‘Summary Psychological Report’ the Applicant was diagnosed by Saladin Talavanic, Access Services Psychologist, with chronic Major Depressive Disorder and Generalised Anxiety. In his report, Mr Talavanic opined:[56]
It is hypothesised that [the Applicant] is predisposed to anxiety, depressive and posttraumatic stress disorders... [The Applicant’s] symptoms of anxiety and depression increased as a result of having to raise his two children who are with him on his own in a country foreign to him. His symptoms of posttraumatic stress increased when he realised what had happened to him when he was released from prison for the last time. [The Applicant’s] symptoms of anxiety and depression are maintained as a result of receiving news that his wife was not going to move to Australia and the realisation that he would have to raise his children on his own. His symptoms of posttraumatic stress are maintained by his belief that people would not be willing to discuss his traumatic experiences with him.
[56]Exhibit R1, T2, 156-157 cited in Exhibit A2, [37].
Physical health
The Applicant’s evidence is that he commenced taking pain medication in 1998 when the four veins in his right leg were cut. He also had pain from the beatings he received to his abdominal area.[57] When he arrived in Australia, he was prescribed five medications which he took, and he increased the dosage as the pain intensified. He became addicted to these medications, and he was taking them whenever he had an onset of pain.[58]
[57] Transcript of proceedings, 1 August 2023, 29.
[58]Ibid.
The Applicant claims that taking these medications changed his behaviour. He told the Tribunal that he ‘didn’t have any further control over [his] life.’[59] He explained that he was ‘absolutely incapable of sleeping properly.’[60] The Applicant discontinued taking pain medications in 2017, and he now relies on prayer to manage his pain.[61]
[59]Ibid.
[60]Ibid, 30.
[61] Exhibit A18, 9.
Criminal offending
The Applicant’s criminal offending was described by the Court of Appeal as follows:[62]
[62]Exhibit R1, T5, 208-213.
Count 1 - Indecent treatment (the breast touching episode)
In the second police interview of 6 February 2011, the complainant recalled the first time the appellant had ever touched her inappropriately was on a Friday in the summer school holidays after Christmas before school started. The appellant walked up behind her in the hallway at their house, grabbed her breasts with both hands and said words to the effect of, “this is not how girls aged like you should look” or “you shouldn’t have big boobs like that”. In cross- examination, the complainant said she remembered the incident because she was really shocked.
Subsequent to that event she recalled an occasion when she was walking in the living room and the appellant had hugged her from behind and kissed her cheeks and she walked off.
Count 2 - Rape (the iPhone cartoon episode)
Count 2, the first rape episode, occurred on the Friday before school commenced in January 2011. It happened around eight, nine or 10 o’clock at night when the complainant’s sister was asleep. The complainant asked the appellant if she could watch a cartoon on his iPhone. He said she could do so in his bedroom. She went to his bedroom. While she was sitting on the bed he touched her hair, put his arm around her and pulled her down. He told her she was beautiful and he loved her. He asked her to take her clothes off but she did not. He kissed her and she moved her head away. He touched her breasts. He pulled her shirt and bra away and removed her lower clothing. He took off his underwear and she saw his penis. When asked in the interview what shape his penis was she replied, “Kind of rectangle.”
He lay over her on the bed and his penis made contact with her vagina. When asked during the second interview whether it only touched outside she responded, “No, the inside.” In her third interview with police she explained he put his penis in her vagina and started “humping” her. He did not use a condom.
In the second interview she said she did not know whether he ejaculated but later in the same interview she recalled, after he had withdrawn his penis, “his sperm came out on his hand”. In the third interview she said that when he finished, sperm “starting coming down” and he later told her his sperm “didn’t really go deep inside” her vagina. He told her he had to go and clean himself and she went to her room and cried.
Count 3 Rape - (the chicken and chips episode)
By the time of the second rape episode, count 3, the complainant recalled the appellant had bought condoms which she thought were in a cupboard in his bedroom near the bed. When asked during her pre-recorded evidence to identify that location by reference to a photograph she identified the bedside table, referring to its lowest or middle drawer.
The episode occurred about 4 or 5 pm. It was not a school day. The complainant recalled her sister was sent by the appellant to the local shops to buy chicken and chips and a “Gotalk” prepaid mobile phone card.
While she was gone the appellant had sexual intercourse with the complainant on his bed. She could not recall whether they were in a “sitting position or a sleeping position”. Afterwards the appellant took off the condom he had used and flushed it down the toilet.
The complainant had showered and dressed by the time her sister returned. PL then arrived and they then went shopping for underwear. The complainant recalled she had showered because the appellant told her to, saying PL “might smell you”.
[…]
Count 4 - Rape (the homework episode)
The third and final time the complainant said the appellant had intercourse with her was after the school term had commenced, two to three days before the complainant’s disclosure to PL. The complainant recalled this occurred at night in the living room some time after dinner. The complainant said her sister was in her room playing with her dolls and she was doing her maths homework when her father called her over to where he was sitting on the couch. The complainant said she told the appellant she wanted to finish her homework but he told her to stop doing it.
She explained intercourse occurred on the brown lounge chairs in the living room that were pushed together at the time. The appellant used a condom but it came off. The complainant said she was scared she would get pregnant but the appellant told her not to worry and to stand up and spread her legs so the sperm would come out.
In his sentencing remarks, Dearden DCJ stated that the Applicant’s offending ‘was a gross breach of trust that a child is entitled to place in her father.’[63] In sentencing the Applicant, the factors considered by the Judge were the age of the victim, the Applicant’s lineal relationship to her, that the offence took place in their home, that there was a breach of trust and a ‘clear lack of remorse and what seems to be a failure [by the Applicant] to recognise any aspect of [his] role in [the] offending.’[64]
[63]Exhibit R1, T5, 212.
[64]Ibid.
Breach of bail conditions
Following his arrest, the Applicant was held in police custody until 7 February 2011 when he appeared before Beenleigh District Court and was granted bail. The Applicant remained in the community on bail for two years and nine months until December 2013, when he was convicted and imprisoned at the Wolston Correctional Centre.
On 28 April 2011, the Applicant appeared before Beenleigh Magistrates Court for one count of Breach of bail conditions contrary to section 29(1) of the Bail Act 1980 (Qld) (‘Bail Act’).[65] At this time, the Applicant was subject to daily reporting and was required to report by 8:00pm. On the day of the offence, he was notified by his boss that he had to work overtime. He telephoned Woodridge Police Station to advise the police of his situation, and requested he be permitted to report at 10:00pm after he finished work. The police officer he spoke to agreed he could do so. However, when the Applicant arrived at the police station, he was told that he had breached his bail conditions. The Applicant told the Tribunal that when he called the police to request that he be permitted to report at 10:00pm, he was not assisted by an interpreter.[66] The Court record shows that the Applicant did not receive a conviction in relation to this offence and that he was ‘not further punished’.[67]
[65]Ibid, T6, 217.
[66] Transcript of proceedings, 1 August 2023, 33.
[67]Exhibit R1, T6, 217.
Failure to appear
On 21 October 2011, the Applicant appeared before the Beenleigh Magistrates Court in relation to one count of Failure to Appear in Accordance with Undertaking contrary to section 33(1) of the Bail Act. The Applicant’s evidence is that he was represented by a lawyer from Legal Aid Queensland, and he was therefore under the impression that he was not required to appear in person. His lawyer attended the hearing and explained that he was unable to contact the Applicant to advise him of his bail conditions and the Magistrate accepted this explanation.[68] The Applicant did not receive a conviction in relation to this offence.
[68] Exhibit A4, [18].
Remorse and responsibility for offending
During cross-examination at the hearing, the Applicant was read the facts surrounding each count of the offences as detailed in [40] and he did not dispute any aspect of them. He confirmed that he accepts that he committed the offences for which he was convicted.[69]
[69] Transcript of proceedings, 1 August 2023, 23.
During cross-examination, the Applicant was asked why he told the Department in June 2017 that he had appealed his convictions and believed he would win his case because he is ‘innocent’. He stated:[70]
My understanding of this situation has evolved since that time and I now recognise the error of my ways and I ask for forgiveness and pardon once again.
[70] Ibid, 25.
The Applicant was asked what had changed, to which he replied:[71]
Everything changed. Everything changed. My world turned upside down.
…
My world was totally turned upside down. There were – there had to be connections, reconnections with family members, friends, colleagues, support people and I had to – I had to recognise and accept and own the events of 2011.
[71]Ibid.
When questioned during cross-examination about his previous denial of the offences and his earlier claim that a female friend had influenced his daughter to make the allegations against him, the Applicant stated that he no longer holds this view.[72] He acknowledged to Dr Emily Kwok, Clinical and Forensic Psychologist, that he had committed serious offences against his daughter and expressed remorse for the harm which his actions had caused his daughter and his family.[73]
[72]Ibid, 26.
[73] Exhibit A2, [34].
When asked by Dr Kwok whether he was experiencing mental health issues at the time of his offending, the Applicant said that he was taking a lot of pain medication for his chronic pain condition. He could not, however, draw a direct connection between the pain condition and his offending.[74] The Applicant told the Tribunal that he does not blame the pain medication for his offending, as it was his decision to take high doses of these prescribed drugs.[75]
[74]Ibid, [35].
[75] Transcript of proceedings, 1 August 2023, 31.
In his Statutory Declaration dated 18 April 2023, the Applicant stated:[76]
My offences bring me an immense amount of remorse, shame and guilt. These are very uncomfortable feelings that I have previously evaded. It was a thought that I continuously pushed back against. My mind and my gut tell me that the only way forward is to confront my past actions and take responsibility for the harm that I have caused my children. I have resolved that I am only going to speak the truth from now on. Even if the truth will always be embarrassing and painful. That is a duty that I owe not only to my children, but to the Australian community.
[76] Exhibit A4, [22].
The Applicant told Dr Kwok, that he cannot explain why he committed the offences. He stated:[77]
I don’t have any idea where the idea [came from] to have sexual interaction with my daughter. I don’t know what happened in my head, but it happened … I tried to understand myself, I tried to ask myself questions [of] why I went to that path. I cannot find any answer.
[77] Exhibit A2, [34].
He told Dr Kwok that he had ‘learnt a lot from the punishment and consequences [of being] in prison.’[78] He expressed sadness and regret that his actions had ‘broken [his] family and [his] life’ and he ‘ask[s] the community for forgiveness.’ He stated that he would seek help from a psychologist and/or counsellor if he were faced with similar problems in the future.[79]
[78]Ibid, [35].
[79]Ibid, [36].
Behaviour and work in gaol
From January 2015 to February 2020, while he was in gaol, the Applicant worked for Snaps Workshops. His role was to make mesh using staple guns and then place the mesh in plastics which would be used in fire prevention products. He later worked in the metal workshop where he constructed fences from steel.[80]
[80] Exhibit A4, [23].
Correctional centre reports in relation to the Applicant ‘overwhelmingly’ rate his behaviour as ‘very good’. He is reported to have worked in a variety of roles and found as having an ‘extremely positive attitudes toward employment’ and he ‘was able to comply with workshop rules.’[81] The Applicant’s behaviour while in prison is reported to have been compliant and he demonstrated a commitment to his work and study.[82]
[81]Exhibit R1, T2, 53.
[82] Exhibit A11.
Courses and programs in gaol and immigration detention
The Applicant completed the Getting Started Preparatory Program for sexual offenders on 28 November 2017. In his Statutory Declaration dated 18 April 2023, the Applicant stated that he ‘learned a lot from doing that course.’[83]
[83] Transcript of proceedings, 1 August 2023, 32.
In 2015, the Applicant completed Tertiary Preparation Pathway online courses at the University of Southern Queensland (USQ) and he subsequently enrolled in a Bachelor of Arts degree at USQ.[84]
[84] Exhibit A2, [12],
The Applicant also completed a number of certificates while he was in prison. These included certificates in furnishing, employment and training, numeracy, rural operations, safe work practices, as well as information, digital media and technology.[85]
[85]Ibid, [13].
In March 2023, the Applicant completed various online courses, including courses in stress management, domestic violence, anger management, critical thinking, emotional intelligence, depression management, listening skills, etiquette, decision-making skills, interpersonal communication, and problem-solving strategies.[86]
[86]Ibid, [37].
Risk of re-offending
In his Statutory Declaration, the Applicant explained why he would not re-offend:[87]
I do not want to spend the rest of my life in immigration detention or return to the DRC, so I believe that it is unlikely that I will again put myself in a position where these possibilities might occur, such as by re-offending of any kind.
[87] Exhibit A4, [34].
In 2018 and 2020, while in prison, the Applicant was assessed as requiring a level of structured supervision afforded to prisoners managed as a high security. In a report dated 7 August 2018, Queensland Corrective Services assessed the Applicant to be in the low-risk category for future sexual offending following a STATIC-99R Assessment.[88] The Applicant’s Risk of Reoffending Prison Version (RoR-PV) score of 1 indicated that he fell into the category of prisoners who pose a low risk of further general offending.[89]
[88]Exhibit R1, T2, 189.
[89]Ibid.
An Information Notice Security Classification (INSC) report from Queensland Corrective Services dated 20 March 2020 concluded that in the absence of the Applicant having completed programs to address his sexual offending, there was no evidence to suggest his risk of reoffending had abated. Based on the nature and harm caused by his previous offending, the reviewer was of the view that any future offending by the Applicant would cause considerable harm to the community.[90]
[90] Information Notice Security Classification (INSC) report from Queensland Corrective Services and Risk Reporting Statement, dated 20 March 2020, 19.
Mental health condition and treatment
The Applicant received mental health treatment in gaol and immigration detention. The Applicant was admitted to the High Secure Inpatient Service (HSIS) on 2 February 2016 after he presented with persecutory delusions and possible associated perceptual disturbances. He reported that he was raped and drugged by his cell mates and could hear them talking about him. He stated that his food was being tampered with in order to sedate him at night to facilitate the rapes. He also reported that he had been injected with another person’s blood. He was initially managed under the Mental Health Act 2016 (Qld) (‘Mental Health Act’) but this was revoked during his admission at HSIS as he accepted treatment. He was commenced on Sodium Valproate, Olanzapine and Aripriprazole and spent a period of six weeks in HSIS before being transferred back to prison on 14 March 2016.[91]
[91]Exhibit R1, T2, 51.
In a forensic psychiatric report dated 30 June 2017, Dr Anthony Tie diagnosed the Applicant with a psychotic disorder superimposed upon PTSD. [92] He was prescribed psychotropic medications and was compliant with his treatment regime.[93]
[92]Ibid, 194.
[93]Ibid; Exhibit A2, [19].

In November 2019, the Applicant was referred back to the HSIS after he reported that people were putting drugs in his food, coming into his room at night, shaving his hair, and punching him.[94] He presented with no psychotic symptoms when seen by the psychiatrist and was discharged.[95]
[94]Exhibit R1, T13, 243.
[95] Exhibit A2, [20].
In September 2021, the Applicant was referred again to Prison Mental Health Services as he was yelling and talking to himself and claiming he could hear noise which could not be heard by others. [96] He was confronting prisoners about things that were not happening and claimed that ‘devil’s water’ was being used to clean his windows. He also claimed that chemicals in the cleaning products were poison aimed to kill him. The Applicant declined to see psychiatric services on two occasions and was discharged. His claim that he was not aggressive towards other inmates is confirmed by his prison medical records.[97]
[96]Exhibit R1, T13, 243.
[97] Exhibit A2, [21].
The Applicant presented with paranoid delusions following his arrival at the Brisbane Immigration Transit Accommodation (BITA) in December 2021. On 26 January 2022, Dr Yamini Samy made a Community Treatment Order (CTO) under section 18(2) of the Mental Health Act after the Applicant was transferred from BITA to the Royal Brisbane and Women’s Hospital (RBWH).[98] This was a consequence of a ‘1-1.5 month history of [the Applicant’s] deteriorated mental state characterised by increased persecutory beliefs about detention officers’. The Applicant was an involuntary inpatient at the RBWH from 26 January 2022 to 23 February 2022. Dr Heidi Reichhold, Consultant Psychiatrist, provided a report dated 2 February 2022 in which she which noted that ‘there have been no issues on the ward [by the Applicant] towards females and he has behaved appropriately.’[99]
[98] Attachment A, 29.
[99]Exhibit R1, T2, 150.
The CTO was confirmed by the Queensland Mental Health Review Tribunal (‘QMHRT’) on 23 February 2022 for the Applicant be treated as an inpatient.[100]
[100] Attachment A, 32.
On 14 February 2022, the Applicant was diagnosed with Paranoid Schizophrenia by Dr Reichhold at the RBWH.[101] He was discharged on a CTO that required him to take medication given via injection into the muscle once a month.[102]
[101]Exhibit R1, T13, 243.
[102]Ibid, T13, 237; Exhibit A2, [22].
On 25 February 2022, the Applicant was reviewed by an International Health and Medical Services (‘IHMS’) psychiatrist who noted ‘Schizophrenia - in remission. Marked improvement in his persecutory delusions – doesn’t report any concerns currently … Willing to continue the Aripiprazole injection.’[103]
[103]Ibid.
An email from Dr Michel Ostapovich, IHMS General Practitioner, dated 16 July 2022 reported that the Applicant was ‘very well mentally’ and ‘completely compliant’ with his medication and was at low risk of relapse if he remained compliant with treatment.[104]
[104]Ibid; Exhibit A2, [23].
In its decision dated 18 October 2022, the QMHRT reduced the Applicant’s treatment category to the community category.[105]
[105] Attachment A, 33.
IHMS records record that after the Applicant was discharged from RBWH, he has received monthly depot injections of Aripiprazole 400mg on 16 March 2022, 13 April 2022, 13 May 2022, 10 June 2022, 8 July 2022, 5 August 2022, 30 September 2022, 30 October 2022, 27 November 2022, 25 December 2022, 24 January 2023 and 21 February 2023.[106]
[106]Ibid, 4-11, 15-20.
A progress note recorded by Dr Ostapovitch, dated 28 January 2023 notes that the Applicant’s schizophrenia was in remission and that he had ‘been received by our psychiatrist on the 25/02/2022, 13/05/22, 04/08/22, 28/10/22 and 18/01/23 with no ongoing concern.’[107]
[107]Ibid, 9.
In his Statutory Declaration, the Applicant acknowledged that he requires treatment and monitoring for his mental health conditions:[108]
I also now know to seek help for my mental health conditions and to follow the advice of medical professionals. My experience with my mental health episode early last year and subsequent proceedings before the Mental Health Review Tribunal has made me realise that the Australian community cares about my wellbeing and will only intervene where this (sic) a real need to do so. I undertake to comply with all future instructions directed to me by my treating doctors and to engage productively with any review processes, including any proceedings before the Mental Health Review Tribunal (if any).
I have consistently taken my depot each month since my hospitalisation at the RBWH. I intend to continue taking my medication and undertake to do so.
[108] Exhibit A4, [30]-[31].
Counselling
On 24 October 2022, the Applicant was referred by IHMS to a counsellor at the Queensland Program of Assistance to Survivors of Torture and Trauma (‘QPASTT’), for ‘trauma focussed counselling relating to his history of torture and trauma.’ The Applicant attended two sessions with a counsellor from QPASTT during which they discussed his childhood trauma, offending and schizophrenia. The evidence shows that the Applicant attended his first session on 6 April 2023 with further appointments booked for 14 April 2023 and 28 April 2023. The Applicant found these sessions ‘very therapeutic’ and he is ‘eager to continue counselling’ with QPASTT if he is released from detention.[109]
[109]Ibid, [32].
The Applicant was transferred from BITA to Villawood Immigration Detention Centre (‘VIDC’) which ended his engagement with QPASTT. In his oral evidence, the Applicant confirmed that in June 2023 he spoke with a psychologist, Ms Yvette Aiello, from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (‘STARTTS’).[110]
[110] Transcript of proceedings, 1 August 2023, 29.
Psychological assessment – Dr Emily Kwok
Dr Kwok interviewed the Applicant by video link on 4 April 2023 for a duration of one hour and ten minutes, and prepared a report dated 11 April 2023.[111] She also gave oral evidence by video-link at the hearing.
[111] Exhibit A2.
In her report, Dr Kwok found that the Applicant meets the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) criteria for PTSD and is in partial remission.[112]
[112]Ibid, [46].
Dr Kwok reported that the Applicant was remorseful for his criminal offending, noting that he ‘accepts responsibility for his offending behaviours [and] acknowledged that he had committed serious offences against his daughter and expressed remorse for the harm which his actions had caused his daughter and his family.’[113]
[113] Exhibit A2, [34].
In relation to the Applicant’s remorse and acceptance of responsibility for his offending and his rehabilitation, Dr Kwok reported:[114]
[The Applicant] accepted responsibility for his offending behaviours and acknowledged that his actions had caused harm to his daughter and the family. He expressed regret and remorse for his behaviours and recognised the need to seek professional help if he is not coping. Whereas [the Applicant] had previously denied the offences and attempted to shift blame, he indicates that his attitude has changed. He had completed a program for sexual offenders while he was in prison. He also completed various online courses in detention, including courses in domestic violence, depression management, problem solving strategies and stress management.
[114]Ibid, [57] – [58].
In Dr Kwok’s opinion, around the time of offending the Applicant ‘was likely experiencing distress from the chronic pain condition and … dependence on pain medication to function in activities of daily living.’[115] She considered that the Applicant ‘[b]eing in a foreign country as a single parent was likely an additional stressor’.[116] She noted that he indicated ‘that he mainly spent his time at work and with his daughters’ and that it ‘appears that he was lacking prosocial activities and support at the time of offending.’[117] In her view, the Applicant’s ‘persistent chronic pain and psychosocial difficulties had likely contributed to his poor coping, lack of judgement, and poor behavioural control at the time of offending.’[118]
[115]Ibid, [52].
[116]Ibid.
[117]Ibid.
[118]Ibid.
Dr Kwok assessed the Applicant’s risk of future sexual offending using the Static-99R tool.[119] She found that his risk score is in Level II, or below average risk level. She explained that ‘Level II would be a higher risk than non-offenders, but a lower risk than typical offenders. It is expected that Level II offenders would have some criminogenic needs, but these life problems would be few and transient.’[120] Dr Kwok noted that some of the factors that contribute to the Applicant’s low risk level are ‘his older age, absence of history of non-sexual violence, absence of other prior sex offences, and he has no other convictions besides those that arose from the offences committed during the six-week period from December 2010 to February 2011.’[121]
[119] Ibid, [42]-[44]. Static-99R is intended 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 has moderate accuracy in ranking offenders according to their relative risk for sexual recidivism and is widely accepted by the scientific community and by applied evaluators.
[120] Exhibit A2, [43].
[121]Ibid, [60].
During cross-examination, Dr Kwok was asked whether the Applicant’s denial of his offending in 2018 was relevant to the risk of him re-offending. She said that the research shows that there is ‘no direct relationship between denial and re-offending.’[122]
[122] Transcript of proceedings, 2 August 2023, 12.
In her report, Dr Kwok opined that there are a few protective factors against the Applicant committing an offence that is unrelated to those for which he was convicted. She observed that the Applicant:[123]
does not present with an underlying pattern of antisocial attitudes or behaviours. He does not have problems associated with illicit drug and alcohol use. He has received treatment for PTSD and other psychiatric conditions at various times in the community, in prison and in detention, and he is currently in partial remission. According to [the Applicant], he is currently compliant with his medication regimen and is attending psychological counselling. If he is permitted to stay in Australia, it is recommended that [the Applicant] connect with a general practitioner and/or psychiatrist in the community who will manage his medications. There is no indication that [the Applicant] has a problem with anger or aggression, and it appears that he is usually effective in social interactions. These are positive factors towards him being able to establish prosocial networks in the community.
[123] Exhibit A2, [63].
Dr Kwok noted that, notwithstanding the Applicant’s low risk of re-offending with respect to crimes of a similar nature to those for which he was convicted, ‘he will likely experience adjustment difficulty if he is permitted to stay in Australia due to the length of time he has been disconnected from the wider community.’[124] Given the Applicant’s ‘psychosocial difficulties had previously contributed to his poor coping and problematic behaviours’, in Dr Kwok’s opinion, ‘he will benefit from ongoing psychological and social support if he is permitted to return to the Australian community.’[125] She also noted that the Applicant may require assistance with seeking employment, while observing that his ‘educational background and the additional studies which he had completed in prison may improve his employability.’[126]
[124] Exhibit A2, [61].
[125]Ibid.
[126]Ibid, [64].
Dr Kwok provided her opinion on the impact on the Applicant if he is required to remain in indefinite immigration detention:[127]
In the event that [the Applicant] is detained indefinitely, there will be a greater burden on him being detained than a normal offender because of his low risk for re-offending and he will not be able to engage the support which he can access in the community. Detention will also be more difficult for [the Applicant] due to his increasing age. It is widely accepted that immigration detention has adverse effects on the health of migrants and higher psychological symptoms are found in detainees compared to non-detained refugees. Detention duration is also positively associated with severity of mental symptoms. Intervention for [the Applicant] is available in the community and it is my opinion that, with appropriate community-based support, [the Applicant] can become a contributing member of the Australian community.
[127]Ibid, [72].
Future plans
If he is permitted to stay in Australia, the Applicant would like to return to work for Australia Post and provide for his family and children.[128] He wishes to complete the Bachelor of Arts degree at USQ which he started when he was prison. He has several modules (about two semesters of study) to complete before he can be awarded this degree. He wants to obtain gainful employment and utilise his community support networks to assist him.[129]
[128]Ibid, [38].
[129] Exhibit A4, [33].
The Applicant is connected with the Congolese community and has a few friends. He intends to live with his friends, Lorraine Wallace and Russell Scheikowski, if he is able to return to the community.
The Applicant would like to seek a reconciliation with his two daughters in Australia.[130] He told the Tribunal that this ‘would be dependent on measures relating to the court order that … is in place.’[131]
[130] Exhibit A2, [39].
[131] Transcript of proceedings, 1 August 2023, 32.
Fears of return to the DRC
In his Statutory Declaration, the Applicant described his fears in relation to returning to the DRC:[132]
If I do return to the DRC, I know it will just mean death for me. I will be tortured, mistreated and executed. I will never put myself in this situation. Even the thought of the DRC gives me anxiety and makes me feel scared.
[132] Exhibit A3, [34].
Loraine Wallace
Mrs Wallace provided a letter of support for the Applicant dated 27 July 2023,[133] and gave oral evidence by telephone at the hearing. Mrs Wallace met the Applicant in November 2017 when the Applicant and her husband, Russell Scheikowski, were inmates at the Wolston Correctional Centre in Brisbane. She assisted the Applicant in locating his brother who is living in the ROC. She subsequently provided the Applicant with letters, including news from the DRC, and messages from his brother.
[133] Exhibit A32.
Mrs Wallace and her husband were contacted by the Applicant in November/December 2021 to tell them that he was now in BITA having had his visa cancelled. In early January 2022, they visited the Applicant, and he asked if they could assist by providing him with a mobile phone, laptop computer and various other items necessary for him to be able to continue his Bible and other external studies. He wanted to give them the earnings he had received for the work he had undertaken in the Correctional Centre so they could buy these items on his behalf. He also asked that some of this money be sent to his brother in the ROC. Mrs Wallace opened a bank account and deposited the money into this account, and she draws on the funds as necessary to pay for the Applicant’s expenses. She provides the Applicant with regular statements detailing the payments she has made.
Mrs Wallace and her husband visited the Applicant at BITA and have been in telephone and email communication with him. When the Applicant was admitted to the RBWH in relation to his mental health, she and her husband became the Applicant’s ‘nominated support persons’ and they attended meetings with his mental health care providers and two QMHRT hearings. In her conversations with the Applicant, they have discussed ‘whether he had insight into his condition and the importance of him continuing his treatment.’ She observed that he ‘appeared to have some clarity into why he was unwell’ and he indicated that he ‘was going to continue with the treatment as necessary.’
In her letter of support, Mrs Wallace detailed the assistance she and her husband will provide to the Applicant if he returns to the community:
We are willing to continue to support [the Applicant] on an emotional level, especially as he cannot have contact with the only family he does have who are in Australia. Should he be able to regain his Visa and return to Brisbane, we can assist him in establishing a bank account; Centrelink in order to look for employment and other Government and non-government support agencies. He will also need to establish a general practitioner and potentially other specialists to assist with his physical and mental health needs. We can assist him to find suitable accommodation.
In her oral evidence at the hearing, Mrs Wallace told the Tribunal that she and her husband are unable to offer the Applicant accommodation as they do not have enough room in their home.[134] She is self-employed and is able to allocate her work around her social and other commitments, and she enjoys ‘helping others and giving back.’[135]
[134] Transcript of proceedings, 2 August 2023, 8.
[135]Ibid.
Jean-Claude Dimoke
Mr Dimoke provided a letter of support for the Applicant dated 27 July 2023,[136] and gave oral evidence by telephone at the hearing.
[136] Exhibit A31.
In his letter of support, Mr Dimoke stated that he is an ‘informal social worker for the Congolese community’. He liaises with community members ‘to assist Congolese people in Australia with connections to services, jobs, etc.’[137] He has known the Applicant ‘for several years’. At the hearing, Mr Dimoke told the Tribunal that he met the Applicant in 2009 when they worked together assisting refugees at Access Services.[138] For the past two years Mr Dimoke has been the youth representative for the Congolese community.[139] He helps young people in the community with their general education and socialisation, including any problems that they may encounter in their family or daily lives.[140]
[137]Ibid.
[138] Transcript of proceedings, 2 August 2023, 3-4.
[139]Ibid, 4.
[140]Ibid.
Mr Dimoke stated in his letter of support that, prior to his incarceration the Applicant had been involved in ‘various cultural events, community initiatives, and social gatherings.’ He observed the Applicant’s demonstration of ‘a strong work ethic and a willingness to lend a helping hand to those in need.’ He found the Applicant to be ‘reliable and dependable’ and he believes that the Applicant’s ‘skills and experience make him well-suited for various employment opportunities.’ Mr Dimoke stated that the Congolese community ‘will work to try to find [the Applicant] a job’, and will thereby ‘help him reintegrate into society, regain financial stability, and contribute positively to the economy.’ He further stated that the community ‘will work to help [the Applicant] find accommodation’ so that they ‘can ensure that he has the necessary foundation to focus on his personal growth and rehabilitation.’[141]
[141]Exhibit A31.
In his oral evidence at the hearing, Mr Dimoke stated that he can offer the Applicant accommodation in his home as he has a large house with five bedrooms. In relation to employment opportunities for the Applicant, Mr Dimoke said that ‘jobs are always coming in on a regular basis for things that need to be done for people in the community.’[142]
[142]Ibid, 5.
Reverend George Stubbs, Wolston Correctional Centre Chaplain
Reverend Stubbs provided a letter of support for the Applicant dated 7 November 2017[143] and an email dated 14 July 2022.[144]
[143]Exhibit R1, T2, 139.
[144]Ibid, 141.
In his letter, Reverend Stubbs wrote that he had known the Applicant for three to four years. He stated that he is ‘willing to be a support person for [the Applicant] as and when he receives parole and begins to establish himself back in Australian society.’ In his email dated 14 July 2022, Reverend Stubbs wrote that when the Applicant is released from the detention centre, he ‘will certainly be in contact with [the Applicant] seeking to encourage him with his University studies and maintain his Christian fellowship with a church group suitable to his location.’
CONSIDERATION AND REASONS

In NBMZ v Minister for Immigration and Border Protection,[145] Allsop CJ and Katzmann J recognised that Article 33(1) of the Refugee Convention ‘is central to the protection to be afforded to a refugee’ and ‘is the cornerstone of the protection of refugees and those seeking asylum’. Their Honours also recognised the role of Article 33(2) in determining persons entitled to the protection of non-refoulement:[146]
It is important to recognise not only the place of Art 33(1), but also of Art 33(2) in the contextual fabric for decision-making about those who have been recognised as refugees. It describes the serious conditions that justify the return of a refugee to a place where he or she may face persecution. Article 33(2) and the circumstances within it reflect the balance contained within the Refugees Convention between protection of those who need it, and the legitimate entitlement of Contracting States not to be required to give protection to those who pose a danger to the host State and its people.
[145] [2014] FCAFC 38; (2014) 220 FCR 1, [12].
[146]Ibid, [21].
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The outline to the Explanatory Memorandum to the Bill stated:[147]
The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa.
[147]Ibid, 12.
Paragraph 1236 of the Explanatory Memorandum stated:[148]
New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.
[148] Cited by Rares J in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84, [11].
It is against this background that the Tribunal considers whether the Applicant’s offending is such that the requirements of section 36(1C) are satisfied thereby disentitling him to the grant of a Protection visa.
1)Has the Applicant been ‘convicted by a final judgment of a particularly serious crime’?
The Applicant accepts that he has been convicted by final judgment of a particularly serious crime.[149] He acknowledges that the offences for which he was convicted involved ‘violence against a person’ within the meaning of section 5(1)(a)(i) of the Act, and the offences are punishable by an ‘imprisonment for maximum term of not less than three years’: section 5(1)(b)(iii) of the Act.[150] Accordingly, as the Applicant has convicted of a ‘serious Australian offence’ within the meaning of section 5(1) of the Act, the Tribunal is satisfied that he has been convicted of a ‘particularly serious crime’ within the meaning of section 5M of the Act.
[149] ASFIC, [4].
[150] Section 349(1) of the Criminal Code Act 1899 (Qld) (prescribes life imprisonment as the maximum penalty for Rape. Section 210(2) prescribes 14 years imprisonment as the maximum penalty for the Indecent Treatment Offence given the victim was 12 years old at the time of the offence.
It follows that the only issue for determination by the Tribunal is whether the Applicant is a ‘danger to the community’ as this term is used in section 36(1C)(b).
2)Is the Applicant ‘a danger to the Australian community’?
The determination of whether the Applicant poses a ‘danger to the Australian community’ does not involve the exercise of a discretionary power. If the Tribunal considers the Applicant is a danger to the community, it must affirm the delegate’s decision.[151] It cannot balance the danger the Applicant poses to the community against the possible harm he may face if returned to his home country.[152]
[151] Section 65 of the Act and MVLW and Minister for Immigration and Border Protection (‘MVLW’) [2017] AATA 1557, [29]-[32].
[152]SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40, [27].
The concept of ‘danger’ as it is used in section 36(1C) is not defined in the Act nor the Refugee Convention and it has no prescribed technical meaning. In their judgment in the recent Full Federal Court decision in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘DMQ20’) Thomas and Snaden JJ observed:[153]
it is likely not possible—and much less is it advisable to attempt—precisely to define what does and does not constitute “danger” for the purposes of s 36(1C)(b) of the Act. It is a concept without technical meaning that falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given matter.
[153] DMQ20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 delivered 30 May 2023, [118].
Their Honours nonetheless opined that the reference to ‘danger’ in section 36(1C)(b) of the Act ‘was intended to denote a prospect of harm’ and its statutory context indicates that the Parliament likely intended that the harms contemplated be more than ‘non-trivial’ kinds:[154]
Given the statutory context—involving, as it does, an exception to the expectation that Australia will afford protection to refugees and others in need of it—it is likely that the Parliament intended that it should involve harm of non-trivial kinds. The likelihood—even a very high likelihood or certainty—that a person might cause others to feel anxious, offended, embarrassed, miserable or despondent, for example, is unlikely to suffice. “Danger” implies a prospect (howsoever measured) of injury (at the least), most likely of physical or psychological kinds.
[154]Ibid, [111].
Their Honours concluded that ‘[a] finding that somebody poses a real, significant, serious and present risk of visiting physical harm very squarely suffices to establish that they constitute a “danger” for the purposes of section 36(2C)(b).’[155]
[155] Ibid, [120].
Their Honours explained that determining the presence of ‘danger’ involves both a qualitative and quantitative assessment:[156]
When assessing the presence of danger (in the sense that the natural and ordinary meaning of that word imports), the required analysis is both quantitative (what is the level of probability that something might happen?) and qualitative (what are the consequences if it does?). They are related inquiries: a high probability of mid-level personal injury, for example, might bespeak the presence of danger no more tellingly as would a moderate or even low probability of serious injury or death.
[156]Ibid, [113].
In his separate judgment in DMQ20, Rares J opined that as concerns its incorporation in section 36(1C)(b) of the Act, the term ‘danger’ ‘should be understood to carry its ordinary meaning.’[157] His Honour commented that in the context of Article 33(2) and section 36(1C)(b), the term ‘conveys a threat of a substantial kind to … the Australian community’, and that it ‘connotes that there are reasonable grounds to perceive a threat of serious, or potentially serious, consequences if the situation said to pose the danger were ignored’.[158] He noted that these provisions apply where there are reasonable grounds for regarding (or considering) that the person ‘poses a serious threat of causing substantial, rather than negligible, harm because he or she would, or be likely to, commit a crime or crimes or act in such a way that offended significant social norms in that society.’[159]
[157]Ibid, [106].
[158]Ibid, [52], [54].
[159] Ibid, [67]. The plurality judgment in DMQ20 adopted no form of words: SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 at [87].
His Honour observed that the concept of ‘danger’ is ‘a function of probability and consequence’.[160] He explained:[161]
A person will pose a “danger” insofar as there is a sufficient likelihood that he or she will engage in conduct that visits upon others a sufficient degree of harm. Both of those constituent concepts may be measured along spectra. Future conduct might be inconceivable, highly improbable, likely or certain (or any degree in between). The harm that it might visit might range from minor to severe. At issue presently is what combinations of probability and consequence should suffice to qualify as “danger” in the sense contemplated by s 36(1C)(b) of the Act (and its analogue in Art 33(2) of the Refugees Convention).
[160]Ibid, [107].
[161]Ibid.
In his judgment in the recent Full Federal Court decision in SGLS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘SLGS’),[162] Jackson J, with whom Rares and Snaden JJ agreed, stated that to the extent there are differences in the construction of section 36(1C)(b) adopted by Rares J and Thomas and Snaden JJ in DMQ20, the approach of the plurality should be followed:[163]
To the extent that there are differences between the construction of s 36(1C)(b) of the Migration Act favoured by Rares J in DMQ20 and the construction favoured by Thomas and Snaden JJ, it is the approach of the plurality that must be followed. In my view, their Honours held 'danger', as used in s 36(1C)(b), to be a word of ordinary English which is to be applied to all the facts and circumstances of the case and which is not susceptible of more precise definition. It would be consistent with their Honours' approach for the decision maker to consider whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates.
…
On any view, in assessing these matters, the decision maker may consider the particularly serious crime of which the visa applicant has been convicted and the risk that he or she will offend in that way in the future. More broadly, the risk of repetition of other past conduct may also be considered.
[162] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104.
[163] at [82]-[85]. Rares J stated that ‘[a]lthough I adhere to the construction of section 36(1C) … that I gave in DMQ20 …, to the extent that this differed from that of Thomas and Snaden JJ, I consider that those reasons must now be applied’: at [1].
In WKCG and Minister for Immigration and Citizenship (‘WKCG’)[164] Tamberlin J sitting as Deputy President of the Tribunal, non-exhaustively identified factors relevant to an assessment of whether a person is a ‘danger to the Australian community’:[165]
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.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez and Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36 at 38; 1 ALD 98 at 100, Brennan J said:
…
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.
[164] [2009] AATA 512.
[165]Ibid, [26]-[27].
The Full Federal Court in FSKY v Minister for Immigration, Citizenship and Multicultural Affairs, expressly approved the ‘multifactorial assessment of considerations’ articulated by Deputy President Tamberlin in WKCG in the context of a Tribunal decision concerning the application of section 36(1C)(b).[166] The Court summarised the considerations identified by Deputy President Tamberlin in WKCG as follows:[167]
a)The question of whether a person constitutes a ‘danger to the Australian community’ is one of fact and degree. Regard must be had to all of the circumstances of each individual case;[168]
b)The person’s criminal record must be considered as a whole and their prospects of rehabilitation must be assessed;[169]
c)Relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence(s) imposed, and any mitigating and aggravating circumstances. The extent of the criminal history (both nature of prior crimes and the period over which they took place) is also relevant;[170]
d)The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration, which involves a consideration of the person’s previous general conduct and total criminal history;[171]
e)The assessment, which includes future conduct, 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;
f)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;[172]
g)Whilst the nature and circumstances of the conviction(s) will be highly relevant to the question, it is not conclusive and it will be necessary to look at the person’s conduct in light of all the circumstances that have occurred up to the time of making the tribunal decision;[173] and
h)It is not necessary to establish that there is a probability of a real and immediate danger of present harm – the provision seeks to protect the community from both immediate harm and harm in the reasonably foreseeable future.[174]
[166]FSKY v MICMA [2023] FCAFC 2, [40]–[41].
[167]Ibid, [41].
[168]WKCG, [25].
[169]Ibid, [26].
[170]Ibid.
[171]Ibid, [26] and [27].
[172]Ibid, [29].
[173]Ibid.
[174]Ibid, [31].
The Court held that this assessment is ‘an intrinsically evaluative task’ that ‘is not susceptible to a great explication of the calibration of risk up and down according to each factor’, and that ‘the decision-maker’s task does not involve ‘moving discs on an abacus’ but rather comprises a ‘melting pot’ in which all factors, by instinctive synthesis, are given consideration.’[175]
[175]Ibid, [65].
In SLGS, the Full Federal Court commented that the none of the principles arising from the Full Court’s judgment in DMQ20 were inconsistent with the approach taken by
[176] Ibid, [1], [85], [92].
Deputy President Tamberlin in WKCG.[176]
Seriousness and nature of the crimes committed
The Applicant accepts that he was convicted of very serious offences.[177] The Respondent contends that the Applicant’s offending is of the highest order of sexual offending.[178] The Tribunal finds that the Applicant’s sexual offending against his 12-year-old daughter is of the most serious nature, including for reason that it involved ‘a gross breach of trust that a child is entitled to place in her father.’ [179]
[177] ASFIC, [10].
[178] RSFIC, [19].
[179]Exhibit R1, T5, 212.
The Court of Appeal’s description of the Applicant’s offences outlined in [40] reveal that there was a degree of pre-meditation associated with his offending, and that he attempted to conceal his criminal action by asking daughter to shower following the second rape. The Tribunal finds that these aggravating elements exacerbate the seriousness of the Applicant’s offending.
The very serious nature of the Applicant’s offences is highly relevant to the question of whether he is a ‘danger to the community’, however it is not conclusive. The Tribunal must consider his conduct in light of all the circumstances that have occurred up to the time of its decision.
Length of the sentence imposed
The Applicant was sentenced to a term of imprisonment of eight years for the three counts of Rape and a further 18 months for the Indecent treatment of a child under the age of 16 years old. Section 349(1) of the Criminal CodeAct 1899 (Qld) (‘the Code’) prescribes life imprisonment as the maximum penalty for rape. The Applicant contends that his sentence, when viewed against the possibility of life in prison and in combination with the available statistics, indicates that the Applicant’s offending is in the middle range of objective seriousness for an offence of this kind.[180] Sub-sections 210(1)(A) and (4) of the Code prescribe the maximum penalty of 14 years imprisonment for the indecent treatment offence. The Applicant contends that his sentence reflects that his offending is on the lower end of objectives seriousness for an offence of this kind.[181]
[180] ASFIC, [16].
[181] ASFIC, [17].
The Respondent accepts that the Applicant’s sentences fall somewhere in the mid-range of seriousness for offences of that type, however he contends that a comparative exercise does nothing to moderate the absolute seriousness of such significant sentences of imprisonment of eight years, and 18 months respectively.[182]
[182] RSFIC, [24].
As the maximum penalty for the Applicant’s offences are life imprisonment and 14 years imprisonment respectively, the Tribunal finds that the sentences imposed indicate that the offences were not at the most serious end of the range for both offences. Nevertheless, whilst the maximum terms of imprisonment were not imposed by the Court for the Applicant’s offending, the length of the sentences are not insubstantial. In PNLB and Minister for Immigration and Border Protection,[183] the Tribunal noted that, ‘[s]entences involving terms of imprisonment are the last the objective seriousness of the offences involved’. The custodial sentences imposed on the Applicant indicate that the Court considered the Applicant’s offending to be serious. The Tribunal finds that the imposition on the Applicant of terms of imprisonment is an objective indicator of the seriousness of his offending and supports a finding that he is a danger to the Australian community.
[183] [2018] AATA 162, [22].
Mitigating and aggravating circumstances
The Tribunal has considered various factors that may mitigate the danger the Applicant poses to the community. In his sentencing remarks, Dearden DCJ referred to the Applicant's ‘traumatic and difficult past’ and his status as a refugee as mitigating factors when determining the sentences for his offending.[184] The Respondent contends that whereas these factors were relevant to the punitive function of sentencing, they do not appear to mitigate the danger that the Applicant would pose to the community if he were to reoffend.[185] The Tribunal finds that neither the Applicant’s traumatic background nor refugee status mitigate the danger he may pose to the community. However, the impact of his traumatic experiences on his physical and psychological health is relevant to the Tribunal’s consideration of whether he poses a danger to the community.
[184]Exhibit R1, T5, 212, 22-25, 30-32.
[185] RSFIC, [27].

In considering whether the Applicant’s current physical health and psychological condition may mitigate the danger he may pose to the Australian community, the Tribunal has had regard to the expert medical evidence before it, particularly the recent report of Dr Kwok and her oral evidence to the Tribunal. Dr Kwok reported that at the time of his offending, the Applicant was likely experiencing distress from his chronic pain condition and his daily dependence on pain medication. She also considered that his status as a newly arrived refugee and a single parent and his lack of prosocial activities and support were additional stressors. In her view, these factors contributed to the Applicant’s ‘poor coping, lack of judgement, and poor behavioural control at the time of offending.’[186] The Applicant’s evidence is that at the time he offended he was addicted to pain medication, was unable to sleep and was not in control of his life. He ceased taking this medication in 2017 and for the past six years has relied on prayer to manage his pain. While the Tribunal cannot make a finding that the Applicant’s offending was caused by his addiction to pain medication, it is satisfied that his abstinence from these medications for an extended period of time reduces the likelihood that he will re-offend, and thereby mitigates the danger he poses to the community.
[186] Exhibit A2, [52].
In relation to the Applicant’s psychological health, at the time of his offending he had been diagnosed with chronic Major Depressive Disorder and Generalised Anxiety and found to be suffering symptoms of PTSD. There is no evidence that the Applicant was receiving psychological treatment for his mental health conditions when he committed the offences. While the Tribunal cannot make a finding that the Applicant’s mental health was the cause of his criminal offending, as the medical evidence demonstrates that he is now receiving appropriate treatment for his Paranoid Schizophrenia and his PTSD is in partial remission, the Tribunal is satisfied that this mitigates the danger he poses to the community as it lessens the likelihood he will re-offend.
Extent of the criminal history, period over which prior crimes took place, and criminal record as a whole
The evidence before the Tribunal is that Applicant’s criminal history is limited to the four sexual offences for which he was convicted in December 2013. The Applicant’s offending occurred during the period from 1 December 2010 and 7 February 2011. In his sentencing remarks, Dearden DCJ stated that the Applicant’s offending occurred over ‘a relatively short period of time, at the most about six weeks.’[187] The Applicant was on bail and living in the community for two years and nine months from his arrest in February 2011 until December 2013. During this period, he did not commit any criminal offences or engage in any other inappropriate conduct. During his incarceration in gaol and immigration detention and during his admission at the RBWH, the Applicant did not harm or threaten another person, nor did he behave inappropriately towards females.
[187]Exhibit R1, T5, 212, 10.
The Applicant’s limited criminal history and the short period of time over which he committed criminal offences, in addition to the evidence that he has not offended or harmed another person since he was arrested in February 2011, support a finding that he does not pose a danger to community.
Prospects of rehabilitation, risk of re-offending and recidivism, and the likelihood of relapsing into crime
The evidence before the Tribunal in relation to the Applicant’s rehabilitation is that he completed the Getting Started Preparatory Program for sexual offenders in November 2017. He also completed a number of online courses in stress management, domestic violence, anger management, critical thinking, emotional intelligence, depression management, listening skills, etiquette, decision-making skills, interpersonal communication, and problem-solving strategies. The Applicant’s efforts to address his criminal behaviour and to improve his ability to cope with stress and anxiety demonstrates that he has taken positive steps towards his rehabilitation.
In considering the Applicant’s risk of re-offending and recidivism and the likelihood of him relapsing into crime, the Tribunal notes that he expressed remorse in his written and oral evidence and to Dr Kwok for the harm which his criminal behaviour caused his daughter and his family. The Applicant accepts full responsibility for his criminal behaviour and does not seek to blame either his addiction to pain medication or mental health condition for his offending.
In assessing the risk that the Applicant will re-offend if he returns to the community, the Tribunal has placed considerable weight on Dr Kwok’s recent psychological report and her oral evidence at the hearing. Dr Kwok’s found that the Applicant’s Static-99R risk score is in Level II, being a below average risk level. In her professional opinion, some of the factors that contribute to the Applicant’s low risk level are his older age, him having no history of non-sexual violence, and his criminal history being limited to the four sexual offences against one victim for which he was convicted and imprisoned.
Dr Kwok identified a number of protective factors which mitigate the risk that the Applicant will re-offend. She found that the Applicant does not present with an underlying pattern of antisocial attitudes or behaviours, nor does he have problems associated with illicit drug and alcohol use. He has received treatment for PTSD and other psychiatric conditions at various times in the community, in prison and in immigration detention, and his PTSD is currently in partial remission. In addition, the Applicant has been receiving monthly depot injections for his schizophrenia since March 2022, and he has attended regular psychological counselling sessions, both of which he is committed to continuing if he returns to the community. He has the support of his friends, Loraine Wallace and Russell Scheikows who are willing and able to assist him to set up a bank account, connect with Centrelink and other Government and non-government support agencies, and to find a general practitioner and other health professionals who can provide him with physical and mental health advice and treatment.
The Applicant has qualifications and experience that should enable him to find regular paid employment which will be an additional protective factor against him re-offending. In Australia, he has worked as a volunteer assisting refugees, and has had paid employment as a furniture removalist, postal delivery officer, and process worker at an abattoir. His friend Jean-Claude Dimoke’s evidence is that the Applicant’s skills and experience make him well-suited for various employment opportunities and the Congolese community will assist him to find work. The Applicant is committed to completing his Bachelor of Arts degree which may lead to other employment opportunities following the completion of this degree. In addition, the Applicant will have secure accommodation if he returns to the community as Mr Dimoke is willing for him to reside with his family in their home in Brisbane.
In addition to his friendships with Loraine Wallace, Russell Scheikowski and Jean-Claude Dimoke, and the support offered to him by Reverend George Stubbs, the evidence is that if he is able to return to the community the Applicant will reconnect with the Congolese community and re-engage in cultural events, community initiatives and social gatherings. The Applicant’s friendships and community involvement are positive factors which will support him to establish prosocial networks in the community.
The Tribunal is satisfied that the Applicant has taken positive steps toward his rehabilitation and has a number of protective factors in place which will limit the likelihood of him re-offending, and that he is a low risk of committing further crimes and being a danger to the community if he is granted a Protection visa.
Summary of findings
Based on an evaluation of the factors identified by Deputy President Tamberlin in WKCG, the following is a summary of the Applicant’s behaviour and circumstances which support the Tribunal’s finding that he is not a ‘danger to the Australian community’:
a)The Applicant’s crimes are objectively very serious in nature and were aggravated by pre-meditation and his attempts to conceal his offending;
b)The imposition by the Court of significant terms of imprisonment is an objective indicator of the seriousness of the Applicant’s offending;
c)The current state of the Applicant’s physical and mental health, his demonstrated compliance with his medication, and his appreciation of his need to continue his mental health treatment reduces the likelihood that he will re-offend;
d)The Applicant’s offending occurred over a limited period of time against a single victim and the offences are his only recorded criminal convictions;
e)The Applicant has demonstrated remorse and taken responsibility for his criminal offending and recognises the harm it caused to his victim;
f)The Applicant has taken positive steps toward his rehabilitation and there are a number of protective factors, including prosocial networks, positive employment prospects and secure accommodation which will limit the likelihood of him re-offending if he returns to the community, and which indicate that he is a low risk of committing further crimes.
CONCLUSION
For the reasons outlined above, the Tribunal finds that the Applicant is a low risk of committing further crimes and of posing a real and immediate danger of present harm, or harm in the reasonably foreseeable future, to the community. It is therefore not satisfied that there are reasonable grounds for regarding that the Applicant ‘poses a serious threat of causing substantial, rather than negligible, harm because he … would, or be likely to, commit a crime or crimes or act in such a way that offended significant social norms in … society.’[188] Whereas the harm that the Applicant would cause if he committed further sexual offences would be devastating for his victim(s), the low probability of him doing so is such that the Tribunal finds that there are not reasonable grounds for it to be satisfied that he will repeat this offending or otherwise offend or behave inappropriately.
[188] DMQ20 at [67] per Rares J.
Accordingly, the Tribunal finds that the Applicant is not a person who is a ‘danger to the Australian community’ and therefore he satisfies the criterion in section 36(1C) of the Act’.
DECISION
The Reviewable Decision of the delegate of the Respondent dated 16 February 2022 to refuse the Applicant a Protection (Class XA) (Subclass 866) visa under section 65(1)(b) of the Act is set aside and substituted with a decision that the Applicant meets the criteria in section 36(1C) of the Act and is eligible for the grant of a Protection visa under section 36 of the Act.

I certify that the preceding 141 (one hundred and forty - one) paragraphs are a true copy of the reasons for the decision herein of

.....................................[SGD]...................................

Associate
Dated: 29 September 2023

Date(s) of hearing:

1 and 2 August 2023

Solicitors for the Applicant:

A. Battisson, Human Rights For All Pty Ltd

Solicitors for the Respondent:

K. Ervin, Clayton Utz

Date(s) of hearing:	1 and 2 August 2023
Solicitors for the Applicant:	A. Battisson, Human Rights For All Pty Ltd
Solicitors for the Respondent:	K. Ervin, Clayton Utz