MPBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2025] ARTA 626
•27 May 2025
MPBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2025] ARTA 626 (27 May 2025)
Applicant/s: MPBN
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/3732
Tribunal:General Member, S. Fenwick
Place:Melbourne
Date:27 May 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the finding that the Applicant is not a danger to the community.
................................[SGD]........................................
General Member, S. Fenwick
Catchwords
MIGRATION – refusal to grant protection visa – whether convicted of particularly serious crime – whether a danger to the Australian community – single instance of drug-related offending in Australia – record of other overseas offending – seriousness and nature of offending – risk of reoffending – decision set aside and remitted
PRACTICE AND PROCEDURE – refusal to issue summons – litigation privilege – relevance to issues in the application
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
Statement of Reasons
BACKGROUND
MPBN applied on 6 June 2024 for review of a decision of a delegate of the Respondent Minister on 13 May 2024 refusing to grant the Applicant a Protection visa under s 36(1C) of the Migration Act 1958 (Cth) (the Act). The basis of the decision was that the Applicant had been convicted of a particularly serious crime and is a danger to the community.
MPBN was born in Poland in 1970 and first arrived in Australia from Bolivia in 2009 on a Tourist visa. Upon his arrival, the Applicant was arrested in connection with the importation of nearly 3 kg of cocaine with a pure weight of just under 2.5 kg. MPBN was found guilty of importing a commercial quantity of border-controlled drugs in mid-2011, and sentenced later that year to a term of imprisonment of 10 years and eight months, with a non-parole period of six years and eight months.
In 2016, the Applicant escaped from a minimum-security correctional centre in NSW and then lived in Melbourne for around 18 months, during which time he formed a relationship from which he has a son, now aged seven. MPBN was arrested and sentenced in mid-2018 to nine months’ imprisonment. The Applicant was ultimately released on parole in late 2018 and was then placed in immigration detention.
MPBN applied unsuccessfully for a Protection visa in early 2019. A series of hearings and judicial review applications in respect of this application ensued, and in late 2022 the matter was remitted with the direction that there are substantial grounds for believing he was at real risk of significant harm if removed to Poland.
MPBN was released into the community on a Bridging Visa R (BVR) in May 2024.
MPBN was represented before the Tribunal and lodged a Statement of Facts, Issues and Contentions (ASFIC), dated 10 March 2025, a bundle of material (AB), and a Psychosocial report dated 29 May 2018 (Exhibit A1). The Respondent lodged documents pursuant to s 23 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) (T), a Statement of Facts, Issues and Contentions (RSFIC), and Supplementary T documents (ST).
The Applicant gave evidence at the hearing with the assistance of an interpreter. After an initial and relatively brief passage of evidence on the first day of the hearing, we adjourned in order to appoint a replacement interpreter due to concerns about accuracy.
Procedural history
Twelve days prior to the substantive hearing I conducted a telephone directions hearing to consider the Respondent’s request that the Tribunal issue upon a medical practitioner summons to produce and to appear. The background to this was prior communications between the parties indicating that a clinical and forensic psychiatrist had been engaged on the Applicant’s behalf, and the associated presumption that any material arising from an examination, understood to have occurred, would be lodged.
The Applicant objected on the basis that the material was covered by litigation privilege. The Respondent contended that privilege should be raised after the production of documents, that it may not attach to working material, nor to their professional opinion given orally in evidence. The Respondent also noted at the directions hearing that, should material be produced and accepted by the Tribunal, it might be that the Minister would seek to also procure an expert opinion.
The Tribunal may refuse a request for summons (s 74(4) of the ART Act), and I denied the Respondent’s request. It appears to me that the authorities support the view that litigation privilege, protecting communications between lawyers and third parties prepared for the dominant purpose of litigation, applies to Tribunal proceedings (Re Farnaby and Military Rehabilitation and Compensation Commission (2007) 97 ALD 788). Notwithstanding the potential relevance of any material or evidence that may arise from the summonses, it remains primarily a matter for parties to prepare and present their case. This includes the discretion not to rely upon material, for which there may be several reasons. It would, accordingly, potentially raise a matter of procedural unfairness, in the context of privileged communications, to expose material or evidence not sought to be relied upon.
Further, I relied upon the objectives statement in s 9 of the ART Act. The factors identified there do not prioritise speed, however I noted that this matter had been on foot since mid-2024. The prospect of further delay was somewhat remote, but in the context of the issues, including the absence of any patent mental health issues on the part of MPBN relevant to my consideration, meant that – overall – I could also see no benefit in prioritising the production of any medical material that existed. The issue was not pressed at the hearing.
LEGISLATION
Under s 36(1C) of the Act it is a criterion for the grant of a protection visa that a person not be one whom the Minister considers, on reasonable grounds ‘having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community’.
Under s 5M of the Act, a ‘particularly serious crime’ is defined as a ‘serious Australian offence’ which in turn is defined in s 5 to mean, among other things, a serious drug offence punishable for a term of not less than three years.
A number of authorities have explored the application of the statutory test of danger. Principally, the decision in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 (WKCG) sets out some of the relevant considerations [26]:
(a)the seriousness and nature of the crimes committed;
(b)the length of sentence imposed;
(c)any mitigating or aggravating circumstances;
(d)the extent of criminal history and nature of past crimes;
(e)the risk of reoffending and recidivism, and likelihood of relapsing;
(f)prospects for rehabilitation; and
(g)consideration of character and the possibility or probability of any threat which could be posed.
Further on the singular question of ‘danger’, it was also said in WKCG that regard must be had to the future as well as the present, and ‘it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community’ and the question does not rise to the level of probability [31]. Following consideration of the test of danger in prior judgments of the Full Court of the Federal Court of Australia, the Full Court in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104 observed [82]-[85]:
(a)danger is a ‘word of ordinary English usage which is to be applied to all the facts and circumstances of the case and which is not susceptible of more precise definition’;
(b)it is consistent with prior decisions for the decision-maker to ‘consider whether the harm that would eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind’;
(c)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’;
(d)the concept of danger ‘combines an assessment of how probable harm is with an assessment of the severity or seriousness of the probability eventuates’; and
(e)the list of factors identified in WKCG ‘remain useful provided it is approached, not as a ‘test’ or a mechanical checklist, but as a guide to assessing the fundamental question of fact’.
ISSUES
There are two issues to be determined. The first is whether MPBN has been convicted of a particularly serious crime. I note from the sentencing remarks of the District Court judge (T3, 10) that the maximum penalty for the offence committed by the Applicant is life imprisonment. On this basis, and as acknowledged by the parties, the first issue must be answered in the affirmative.
Accordingly, I must now consider the second issue, which as noted above, is the single question of whether there are reasonable grounds for considering that MPBN is a danger to the Australian community.
I will consider below the range of relevant matters identified by the authorities. These are also reflected in the parties’ submissions, particularly those of the Applicant. For convenience, however, I will deal with them under two broad headings.
SERIOUSNESS AND NATURE OF CRIMES
Evidence
The Applicant’s criminal record in Australia is not in dispute (T14c)). I summarise some relevant observations made in the course of sentencing in respect of the drug offence (T3):
(a)MPBN raised a defence of duress in the course of his criminal proceeding, which was rejected by a jury, and by the sentencing judge;
(b)the drug importation required very substantial planning, organisation and much deliberation, and the Applicant was not to be treated as a mere courier;
(c)the quantity of drug was modest for the offence type, but constituted a very serious offence, and the objective gravity was between the mid and low range, but ‘significantly closer to the low range’; and
(d)MPBN’s prospects for rehabilitation were considered to be guarded, and the judge could not conclude the likelihood of reoffending was unlikely.
I have noted briefly the charge and sentence relating to MPBN’s escape from custody, for which there appears to be no particular supporting material.
In his written and oral evidence, MPBN maintained that he was forced to import the drugs to Australia (AB1 [22]). He explained in evidence that he came under pressure from a Polish gang operating in Bolivia in relation to a debt owed in Poland from protection provided to him during a prison stay. This pressure included threats to his daughter. MPBN denied knowing that he was importing cocaine, and was unable to recall apparently contrary details of the debt provided in a police interview. The Applicant then stated that he lied to police during the interview about the surrounding circumstances, and also rejected the findings of the sentencing judge about his level of complicity in organising the importation. Otherwise, in his written and oral evidence, MPBN accepts that he has committed the offence and regrets his actions.
MPBN acknowledged his escape from prison, stating that he simply walked out of the prison farm. He formed his relationship six months after this, and then lived with his partner. In written and oral evidence the Applicant stated that when in the community at this time he worked as a painter (AB1 [41]). MPBN also maintained in his evidence that he escaped due to his fear of the consequences for his life and safety were he to be returned to Poland (AB1 [30]). He acknowledged in evidence that this was a bad decision.
Questions were put in cross-examination to MPBN in relation to a client incident report from May 2021 while the Applicant was detained in Yongah Hill immigration detention centre (T10, 87-88). The notes refer to intelligence gathered from another detainee pointing to an alleged escape attempt and to a hole being detected during inspection of a particular compound. I issued a warning in relation to evidence that may tend to incriminate, following which MPBN maintained that the information was well known among detainees, and that he was not involved, nor interested.
Reference is made in the sentencing remarks for the drug offending to MPBN’s criminal record in Poland, including what are described as some very serious matters (T3, 14). The judge refers to offences of violence and involving firearms, and to several terms of imprisonment (T3, 14-15). In his statement MPBN acknowledges past convictions in Poland dating back to 1995 (AB1 [32]). The Applicant acknowledges here a total of 10 years’ imprisonment served in three periods, prior to moving to Bolivia in 2008. This is broadly consistent with information provided in his Protection visa application (T4, 62).
Through previous representatives, the Applicant produced a report from the Polish national criminal register (T22b)). This document refers to a number of sentences of imprisonment, one being for 10 years, possibly between 1996 and 2008. It also appears to record the Applicant being wanted for other offences, possibly between 2009 and 2017.
A further document in the materials is titled Request for Immigration information and may be related to a request for extradition (ST, 806). This document also appears to refer to a relatively long list of charges or offences, said to include violence, sexual violence, firearms, and drug offences (ST, 809).
In evidence, MPBN acknowledged three periods of imprisonment and, consistent with the written material, noted what appear to be periods of release. The Applicant stated that he was sentenced for driving others involved in an armed robbery, albeit asserting that real firearms were not used. MPBN stated that he was young but paid well, and regrets the fact that the matter continues to affect him. The Applicant also acknowledged offending raised in the materials, being crossing the border with a false passport, although he was unable to recall the circumstances.
Further questions were put including in relation to the material contained in the ST bundle concerning additional offending. This did not elicit helpful evidence, and the Applicant in part explained this by reference to false accusations, and in part to a possible re-prosecution of the drug offence in Australia. MPBN denied reports or allegations of violent offending, and of failing to return to prison.
I also summarise briefly other material relevant to this group of factors. When remitting MPBN’s Protection visa application, the Tribunal accepted that the Applicant sought protection in prison and that this had led to a protracted engagement over a debt, and that the authorities in Poland have sought his extradition in relation to drug offences. The Tribunal found that detention or incarceration raises a real chance of him being subjected to harm amounting to cruel or inhuman treatment or punishment (T11b), 147-149).
I have considered the various other incident reports arising from MPBN’s time in detention in the materials (T10) the vast majority of which are minor and only a small number of which appear to relate to potential misconduct of some kind. Responses to this material were provided in prior written submissions (T15a)).
Submissions
In written and oral submissions, the Applicant contended that while convicted in Australia of serious offending, its weight is moderated by the time since elapsed, and the offending of itself does not support a conclusion that MPBN is a danger. Attention was drawn to the sentencing judge’s observations of the relative severity of the drug offending, and it was further contended the sentence imposed for escape was low in comparison to a 10-year maximum penalty (ASFIC [42]). The escape was also explained by the Applicant’s evidence as to fear of harm in Poland [45].
It was submitted that extreme caution be exercised when taking MPBN’s offending record in Poland into account. It was contended that evidence was not clear with respect to the nature and context of offending, and the provenance of the material in the ST bundle was uncertain. Even at its highest, this evidence should be applied with caution to the determination of what risk the Applicant currently presents. Taken overall, to the extent that there was a pattern of increasing seriousness across MPBN’s criminal history, this has halted due to the passage of time and his good conduct (ASFIC [53]).
The Respondent similarly submitted that MPBN has a lengthy history of serious offending and that it exhibits increasing seriousness. His Australian offending was found to be motivated by the significant value of the importation, the defence of duress was rejected, and a substantial penalty was imposed. It was contended, fairly, that the evidence demonstrates some record of offending in Poland, and the more serious alleged offending was not pressed. While MPBN’s escape appeared not to be motivated by a desire to avoid his sentence, it should be considered as reflecting disregard for Australian law. The Respondent did not pursue submission in relation to conduct in immigration detention.
Consideration and findings
The Applicant, on any view of the evidence, has a history of substantial criminal offending in two countries over several decades leading to sentences of imprisonment for substantial terms (including two sentences of 10 years’ imprisonment). He has also absconded from custody. These are factors deserving of some real weight in my considerations, balanced somewhat by the time that has passed since the Applicant’s last conviction.
Overall, I do not consider there to be any particularly persuasive evidence in mitigation of MPBN’s offending. Evidence with respect to events in Poland is, admittedly, clouded. However, the better view of his major drug offending is contained in the remarks of the sentencing judge. While the Applicant appears to have been found to feel real fear for his return to Poland, the sentencing remarks appear to outweigh this in respect of his culpability for the importation charge.
I do not consider the authorities to prevent me from taking account of misconduct not amounting to criminal offending. However, as noted above, there is no substantive evidence of matters arising from MPBN’s lengthy detention that appear of substantive weight, let alone determinative.
RISK OF REOFFENDING
Evidence
I summarise briefly from the Applicant’s statement in respect of matters relevant to this set of factors (AB1):
(a)MPBN has observed the impact of drugs upon his former partner, and during prison and detention, and accordingly has developed insight into the danger to society that arises from drugs [23]-[29];
(b)he lives near to his son, who has autism, and ex-partner, and plays a role in his son’s life including financially when able, has returned to the painting trade, and is committed to working hard within his health constraints [35]-[39];
(c)MPBN receives treatment and medication for chronic pain as well as being in the hands of a clinical psychologist to address mental health challenges [42]-[44];
(d)the Applicant considers himself reformed and rehabilitated, stays away from criminal activity and bad social influences, is complying with the conditions of his BVR, maintains a healthy and substance-free lifestyle, and intends to make a life in Australia [45]-[52];
(e)he considers that his rehabilitation has been tested in the community twice, including during the period he absconded which demonstrates his ability to live a law-abiding life without supervision, and he also used his time in prison and detention productively [56]-[58]; and
(f)the fear of returning to Poland is a significant motivating factor [60]-[63].
A previous submission from MPBN’s representative to the Department (T15a), 173-174) identifies education and rehabilitation courses undertaken in detention, with copies of certificates provided. Courses identified include anger management, drug and alcohol abuse, together with a wide range of vocational and personal development programs.
In evidence at the hearing, the Applicant expressed his regret for his offending, and consistent with his written evidence, explained his learnings about the impact of drugs including upon his girlfriend. MPBN stated that he had also saved the lives of two people in immigration detention in drug related incidents. He confirmed that he obtains regular medical support, including from his clinical psychologist, Dr King who he sees every month. MPBN says that he will reman out of legal trouble through work and changing his friends and lifestyle. He also stated that he was depressed at the possibility of removal to Nauru, which would be a ‘tragedy’ for him.
In cross-examination, MPBN denied having an issue with anger management stating that he was a peaceful type. He also denied having an issue with drugs or alcohol but wanted to undertake the program to learn about their effects. The Applicant stated that he has a requirement under the BVR to report in once per week, and his ankle bracelet was removed about seven months ago and is no longer subject to a curfew.
In a report dated in early 2025, Dr Michael King, clinical psychologist, confirms the administration of two standard psychological instruments, the DASS (for mood assessment) and PAI (to determine personality style) (AB5). The scope of engagement overall is not clear, but Dr King refers to evaluation over an extended period, meaning since September 2024. Dr King describes MPBN as having a ‘normal’ psychological profile, the Applicant wishes to focus on his physical pain, and appears to anticipate conducting further work with MPBN after the conclusion of this matter.
The Psychosocial report dated in mid-2018 of Ms Mary Jelen, social worker, appears to have been prepared in the wake of MPBN’s escape from custody (Exhibit A1). It refers to the Applicant developing a de facto relationship and the ensuing pregnancy, and describes him as having developed a supportive and caring relationship. The report also refers to MPBN wishing to take on a proactive fathering role and to establishing a good life for himself.
The Applicant has lodged two brief references: a positive assessment from what appears to be his current employer; and, a thank you letter from a person who received his help as a handyman (AB3, 4).
Written and oral evidence about the prospect of transfer to Nauru is buttressed by documents from the public domain dated in early 2025 (AB9-12).
There was a brief reference in oral evidence to MPBN no longer holding a valid passport. This appears to be supported by material lodged (T4, 20; T41b), 390).
Submissions
It was submitted for the Applicant that he is a dedicated parent who has undergone training opportunities in detention and who offers support to his son; these are to be considered major protective factors. MPBN is employed and is distressed by the significant time he has lost through his offending. It was contended that he has not relapsed into offending during his two periods in the community and is also motivated by his real concern about deportation.
Support for the issue of removal from Australia was found in reference to correspondence dated in early 2025 to MPBN lodged in this matter (AB8). This is a notice indicating that the Department is considering making a decision under s 197D(2) of the Act that a protection finding would no longer be made. It followed, according to the submission, that if the protection finding is withdrawn, the Applicant is liable to removal to Nauru or Poland, and Nauru has publicly declared its willingness to return people to their country of origin.
I note the extensive further written submissions (ASFIC [54]-[63]). Key contentions arising here include: MPBN has developed a stable life in the community; the absence of illegal activity during detention; support required for a child with autism; and, the motivational effect of his advancing age and health condition.
The Respondent submitted at the hearing that consideration of risk was heavily affected by MPBN’s ongoing denial with respect to his primary offending, indicative of a lack of remorse and insight. This was a flimsy defence that must be rejected, and is inconsistent with other declarations of remorse. The Respondent also contended that neither period in the community were reliable indicators of risk. The first was the product of offending conduct and it was inherent in the circumstances that MPBN keep a low profile. The second was accompanied by BVR conditions, noting that these had been amended over time. In short, the Applicant was not in a state of liberty and only limited time was involved.
With reference to the courses undertaken by the Applicant, it was contended that these were largely irrelevant in their content to the question of risk. In response to the question of the application of s 197D of the Act, the Respondent submitted that only Poland was a likely destination. It was conceded that this may still carry for MPBN an element of fear.
In reply, it was contended that the prospect of return to Poland would provide the strongest motivating factor for the Applicant. Furthermore, without a valid passport, MPBN would be unable to engage in travel for the purposes of drug importation.
Consideration and Findings
I consider the Respondent has correctly identified a potential contradiction in the overall response of MPBN to his offending. I accept that he has made apparently sincere oral and written statements of remorse, yet MPBN patently maintains a defence of duress. This is curious in the face of the findings of the sentencing judge which, as noted above, should be the better interpretation of the circumstances. At the same time, it might be argued that some or all of the Applicant’s narrative is supported by the protection finding. It is difficult, therefore, to make a concerted finding either way, and therefore I am unable to find conclusively that MPBN lacks insight and remorse.
More importantly, there is a body of evidence indicative of insight into the impact of drug offending, and this too comes against a background of an offender who appears to have no demonstrated issues with substance abuse. Further, MPBN has no reported psychosocial factors of any kind that are indicative of a propensity to offend – notwithstanding the objective record itself. That is to say, the history of serious offending is potentially indicative of a risk of harm to the community, but for an appreciation of preventive factors.
The evidence overall indicates that the Applicant has a number of quite important factors in his favour. There is unchallenged evidence about his role as a father, and somewhat slim, but nevertheless adequate, evidence of employment and a capacity to live and work in the community. While the Respondent contends that both periods in the community are not inherently persuasive as to reduced risk, it must be acknowledged that MPBN has not in fact used this time to engage in crime. The Applicant may indeed have a relatively light footprint, but of itself this is not persuasive evidence of risk. It is notable that while MBPN has some ongoing reporting obligations, he currently functions in the community with limited supervision.
CONCLUSION
Fundamentally, my findings do not support the conclusion that the Applicant is a danger to the community. MPBN’s extensive criminal record is just that, a record of past activity. The evidence overall demonstrates to my satisfaction that he has functioned well in prison and detention. Further, despite substantial periods of incarceration in two countries, he has also demonstrated, albeit in somewhat unusual circumstances, the capacity to lead a law-abiding life. MPBN has produced quite limited material from third parties, however I consider there to be sufficient factors generative of a positive motivation to behave that outweigh this.
In short, I am satisfied that MPBN does not pose a real risk of harm to the community and therefore there are not reasonable grounds to consider him a danger.
DECISION
For the reasons given above the Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the finding that the Applicant is not a danger to the community.
Date of hearing: 22 April 2025 Solicitor for the Applicant: Ziya Zarifi, Zarifi Lawyers Solicitor for the Respondent: Adrian Downie, Australian Government Solicitor
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