MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 119

MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 119 (28 January 2022)

Division:GENERAL DIVISION

File Number:          2020/7083

Re:MQHN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date: 28 January 2022

Place:Perth

The decision of the delegate of the Respondent made on 20 October 2020 to refuse the Applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa under s 65 of the Migration Act 1958 (Cth) is affirmed

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

Deputy President Boyle

CATCHWORDS

MIGRATION – s 36(1C) of the Migration Act – refusal to grant a protection visa – Australia owes the Applicant protection obligations – Applicant concedes that he has been convicted by final judgment of a particularly serious crime – whether Applicant is a danger to the Australian community – drug-related offending – diagnosis of post-traumatic stress disorder – traits of borderline personality disorder – engagement with treatment – Applicant an unacceptable risk of reoffending – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 5, 5H, 5H(1), 5M, 36(1C), 36(1C)(a), 36(1C)(b), 36(2)(a), 36(2)(aa), 36(2C)(b), 65, 500(1)(c)(i), 501CA(4)

CASES

BHYK and Minister for Immigration and Citizenship [2010] AATA 662

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

DOB18 v Minister for Home Affairs (2019) 269 FCR 636

HSCK and Minister for Home Affairs [2019] AATA 4392

HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967

LKQD v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2018] AATA 2710; (2019) 167 ALD 17

MHCZ and Minister for Home Affairs [2019] AATA 4259

MVLW and Minister for Immigration and Border Protection [2017] AATA 1557

RVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 665

RWDX and Minister for Home Affairs [2019] AATA 123

SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2980

SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174

TDPG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 503

Vabazav Minister of Immigration and Multicultural Affairs [1997] FCA 148

WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434

SECONDARY MATERIALS

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) arts 33, 33(2)

Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) sch 5, pt 2, item 9

Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017) principles, pt 2

The Refugee Law Guidelines, Department of Home Affairs, 1 July 2017 ch 14

REASONS FOR DECISION

Deputy President Boyle

28 January 2022

THE APPLICATION

1. This is an application for the review of a decision of a delegate of the Respondent (Minister) made on 20 October 2020 to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).[1]

   [1] R1, T28/334.

2. The protection visa was refused because the delegate of the Minister was not satisfied that the Applicant met the criterion in s 36(1C) of the Act for a protection visa. In particular, the delegate was satisfied that the Applicant, having been convicted of a “particularly serious crime”, is a danger to the Australian community and, as a consequence, did not satisfy the criterion in s 36(1C)(b) of the Act.

   THE ISSUES

3. The Applicant concedes that he has been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act.[2] I find that to be the case in any event. It is not contended by the Minister (and there is no evidence) that the Applicant is a danger to Australian security.[3] Accordingly, the only issue for determination is whether the Applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Act. The Applicant agrees that that is the only issue for determination.[4]

   [2] Applicant’s Statement of Facts, Issues and Contentions (ASFIC) paras 44–5.

   [3] The Act s 36(1C)(a).

   [4] ASFIC para 46.

   BACKGROUND

4. The Applicant is a 40-year-old citizen of Iran who arrived in Australia in July 2013. He was in detention until August 2013 when he was granted a Bridging E (Class WE) visa (bridging visa) and was released into the Australian community.

5. The Applicant is of Iranian Turkish ethnicity and is a Sufi Muslim.

6. The Applicant has criminal convictions in Australia, Iran and Cyprus.[5] He has been convicted of the following offences in Australia:

   [5] R1, T7/67.

Date of conviction	Offence	Date of offence	Sentence imposed
13 December 2016	Fail oral fluid test within three hours	23 February 2016	15 months’ Community Corrections Order; 150 hours community work; licence disqualified for three months
	Drive whilst authorisation suspended		15 months’ Community Corrections Order; 150 hours community work
	Resist emergency worker on duty (two counts)	17 August 2016	15 months’ Community Corrections Order; 150 hours community work
	Criminal damage by fire (arson) (two counts)
	Reckless conduct endanger serious injury		Compensation of $15,906 and four months’ imprisonment
31 January 2017	Reckless conduct endanger serious injury	14 August 2016	18 months Community Corrections Order; 250 hours community work; 12 months’ motor driver’s licence disqualification
Intentionally destroy property	18 months Community Corrections Order; 250 hours community work
26 February 2019	Cause harm to Commonwealth officer (law enforcement)	21 April 2018	12 months’ Recognisance Release Order

1. Following the Applicant’s offences in 2016, his bridging visa was cancelled. The Applicant was held in a mental health hospital and in prison from August to December 2016 and has been in immigration detention since that time.

2. On 18 May 2017, the Applicant lodged the application for the protection visa.[6] On 1 March 2018, a delegate refused the grant of the protection visa on the basis that the Applicant did not satisfy the requirements of ss 36(2)(a) or 36(2)(aa) of the Act.

   [6] R1, T6–T7.

3. The matter was referred to the Immigration Assessment Authority (IAA) for review and by decision dated 11 May 2018, the matter was remitted to the Department for reconsideration with a direction that the Applicant was a refugee within the meaning of s 5H(1) of the Act.

4. On 20 October 2020, a delegate found that having been convicted by a final judgment of a particularly serious crime, the Applicant is a danger to the Australian community. Accordingly, the delegate found that the Applicant did not satisfy s 36(1C) of the Act and refused to grant the protection visa.[7]

   [7] R1, T28.

5. On 13 November 2020, the Applicant filed an application in the Tribunal seeking review of the delegate’s decision.[8]

   [8] R1, T2.

   LEGISLATIVE FRAMEWORK

6. Under s 500(1)(c)(i) of the Act, the General Division of the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa relying on s 36(1C) of the Act. I am satisfied that this application for review was made validly and within the prescribed time.

7. Section 65 of the Act provides:

   (1)  Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

   (a)  if satisfied that:

   (i)the health criteria for it (if any) have been satisfied; and

   (ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and

   (iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

   (iv)any amount of visa application charge payable in relation to the application has been paid;

   is to grant the visa; or

   (b)  if not so satisfied, is to refuse to grant the visa.

8. Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act) and was intended to codify art 33(2) of the 1951 Convention Relating to the Status of Refugees[9] (Refugees Convention).[10]

   [9] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) – arts 33, 33(2).

   [10] 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).

9. Article 33 of the Refugees Convention is as follows:

   Prohibition of expulsion or return (“refoulement”)

   1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

   2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

   (Original emphasis.)

10. Section 36(1C) of the Act provides:

    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

    (a)  is a danger to Australia’s security; or

    (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

11. Section 5M of the Act provides:

    5M Particularly serious crime

    For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

    (a) a serious Australian offence; or

    (b) a serious foreign offence.

    (Original emphasis.)

12. Section 5 of the Act defines “serious Australian offence” as follows:

    serious Australian offence means an offence against a law in force in Australia, where:

    (a)   the offence:

    (i)involves violence against a person; or

    (ii) is a serious drug offence; or

    (iii) involves serious damage to property; or

    (iv) is an offence against section 197A or 197B (offences relating to immigration detention); and

    (b)  the offence is punishable by:

    (i)imprisonment for life; or

    (ii)imprisonment for a fixed term of not less than 3 years; or

    (iii)imprisonment for a maximum term of not less than 3 years.

    (Original emphasis.)

13. On 6 September 2017, the Minister for Immigration and Border Protection issued a direction under s 499 of the Act to delegates who consider valid applications for Protection visas under s 47 of the Act and perform functions or exercise powers under s 65 of the Act to grant or refuse to grant Protection visas. This is “Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)” (Direction 75). Direction 75 sets out the following Principles:

    1.Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.

    2.The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia’s security.

    3.It is unacceptable to grant a Protection visa to a non-citizen who is considered to present serious character or security risks to the Australian community.

    4.Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.

14. Part 2 of Direction 75 explains the “order” that decision-makers are to follow when assessing Protection visa applications which raise character or security concerns. Relevantly, it states:

    ...

    1.Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).

    2.Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).

    (a)  Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.

    3.If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.

    4.The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).

15. The Refugee Law Guidelines[11] at ch 14, relevantly provide:

    In considering s 36(1C)(b), each of the following elements should be considered:

    ·was there a crime?

    ·is the crime considered to be particularly serious?

    ·has there been conviction by a final judgement?

    ·does the person remain a danger to the community of Australia?

    While the circumstances of a crime may indicate that the actions represent a danger to the community, decision makers must determine whether the person remains a danger to the community which may take into account any mitigating circumstances, remorse shown by the applicant and any punishments or rehabilitative corrections applied.

    [11] The Refugee Law Guidelines, Department of Home Affairs, 1 July 2017 ch 14.

16. Under the heading “Danger to the Community”, the Refugee Law Guidelines provide:

    Whether a person constitutes a danger to the community of Australia involves more than a reference to the crime committed by that person and should be assessed on a case-by-case basis.

    In WKCG and Minister for Immigration and Citizenship, Deputy President Tamberlin of the Administrative Appeals Tribunal established what has become known as the WKCG test for assessing whether a person constitutes a danger to the community of Australia. The WKCG test was adopted by both parties in BHYK and Minister for Immigration and Citizenship and involves a decision maker considering:
    
    

    ·   the seriousness and nature of the crimes committed

    ·   the length of the sentence imposed

    ·   any mitigating or aggravating circumstances

    ·   the criminal record in totality - including the extent and nature of any prior convictions and the period over which they took place

    ·   the risk of re-offending and recidivism

    ·   the likelihood of relapsing into crime

    ·   any prospects of rehabilitation.

    Furthermore:

    [when] assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future.

    (Footnotes omitted.)

    THE HEARING

17. The application was heard on 30 June and 1 July 2021. The Applicant was represented by Ms J Angel and the Minister was represented by Ms E Tattersall. The Applicant, Dr Phil Watts, Adjunct Associate Professor in Clinical Psychology Endorsed in Forensic Psychology, Mr Reza Hassan Mohammad and Mr Shahram Agahi gave oral evidence at the hearing.

18. The following documents were admitted into evidence:

    (a)Applicant’s bundle of evidence filed in the Tribunal 2 March 2021 (A1);

    (b)Applicant’s supplementary bundle of evidence filed in the Tribunal 1 April 2021 (A2);

    (c)Applicant’s further supplementary bundle of evidence filed in the Tribunal 28 June 2021 (A3);

    (d)Section 37 T-documents filed in the Tribunal 15 December 2020 (R1); and

    (e)Supplementary T-documents filed in the Tribunal 16 March 2021 (R2).

    THE PARTIES’ CASES

    The Applicant

19. The ASFIC states the Applicant’s case to be as follows:

    (a)When viewing the Applicant’s convictions in light of the circumstances in which they arose and in accordance with the considerations set out in WKCG and Minister for Immigration and Citizenship,[12] it cannot be reasonably concluded that he is a danger to the Australian community.

    [12] (2009) 110 ALD 434.

    Nature and seriousness of the offences, and mitigating and aggravating circumstances

    (i)The Applicant acknowledges that his offences are very serious. He is sincerely remorseful for his behaviour in the Australian community and the offences that occurred while he was under the influence of crystal methamphetamine. While the Applicant’s mental health and drug addiction do not reduce his moral or legal culpability for his offending, they do provide significant context to his offending.

    (ii)On 5 June 2017, the Applicant attended an IHMS Mental Health Consultation. The Psychologist noted that the Applicant had symptoms consistent with post-traumatic stress disorder (PTSD) and was experiencing these symptoms daily. The Applicant reported hearing voices every night, including hearing his mother’s voice screaming at him. The psychologist noted, “[it] seems drug abuse and dependence was secondary to PTSD”.

    (iii)On 12 June 2017, the Applicant attended an IHMS Mental Health Consultation. The psychologist noted, “complex PTSD; methamphetamine addiction, now in remission in a controlled environment”.

    (iv)The Applicant has been recorded as making approximately 19 threats of self-harm whilst detained, including on 23 December 2016, 23 April 2017, 1 June 2017, 20 March 2018, and 14 May 2018.

    (v)The Applicant’s offences occurred within the context of mental health crises. There was no premeditation in the Applicant’s offending. He was reacting to his emotions caused by his past trauma, mental health issues and pain. His reactions in the community were fuelled by crystal methamphetamine which was an unsafe coping mechanism. The Applicant acknowledges retrospectively that his reactions were inappropriate and harmful and he is committed to ensuring he never reacts in a similar manner again.

    (vi)In relation to the 14 August 2016 offences, the Applicant and his partner had been using crystal methamphetamine on the day of the offences. The Applicant got into an altercation at a drug-dealer’s house with a man who threatened the Applicant with a machete, eventually striking the Applicant on the head with the butt of the weapon. The Applicant at the time was under the influence of crystal methamphetamine and reacted by getting into his car and driving it repeatedly into the front of the man’s house. When the police arrived, the Applicant was cooperative and made a full confession.

    (vii)In relation to the 17 August 2016 offences, the Applicant had barricaded himself inside the garage of his unit and attempted to kill himself by setting fire to a trailer filled with furniture items. The Applicant then started another fire on a bed inside the front bedroom. When the police and firefighters attempted to pull the Applicant out of the house he refused. They eventually pulled him from the house. The Applicant was under the influence of crystal methamphetamine at the time. Following this incident, the Applicant was taken to a mental health hospital for treatment where he remained for three days. During this period the Applicant again attempted self-harm.

    (viii)In relation to the 21 April 2018 offence, the Applicant while in the Christmas Island Immigration Detention Centre, presented to the evening medication round requesting ibuprofen for a shoulder injury that he had sustained on 31 January 2018, and which was still causing him pain. Serco staff were aware of the Applicant's shoulder injury and of his pre-existing mental health conditions. The Applicant became verbally abusive and aggressive saying that he would “fuck up the compound” if he did not get his ibuprofen. The Applicant also stated that he would “kill himself if he didn’t get the ibuprofen now”. The Applicant then banged his head against the metal support beam three times. Mechanical restraints were applied to the Applicant. Two officers were “seen holding onto [the Applicant’s] arms and pushing him to walk. One officer [was] seen to hold [the Applicant’s] right shoulder tightly. [The Applicant could] be heard repeatedly calling out, ‘my shoulder, leave my arm”. The Applicant could “be heard crying out in apparent distress for over 13.5 minutes”. When the handcuffs were removed, the Applicant:

    …immediately began banging his head against the table and the wall. Handcuffs were re-applied. The Applicant made threats towards the officers. The Applicant then suffered a ‘spasm’ and ‘remained unresponsive, so a mattress was placed on the floor.[13]

    [13] Citing the preliminary decision on complaint of The Australian Human Rights Commission (AHRC) (A1/54–63).

    (ix)The Applicant was charged with “Cause Harm to Commonwealth Officer (Law Enforcement)” for attempting to head butt an officer while restrained. A complaint was made to the AHRC in relation to the Applicant’s treatment during this event which, in its preliminary decision, found:

    I accept that [the Applicant] became aggressive towards officers and used offensive language repeatedly. However, in my view, this was most likely as a result of the pain in his shoulder being exacerbated by the application of handcuffs and force used to transfer him to the White One Compound.

    (x)The Applicant pleaded not guilty as he felt that the force used by the officers was excessive given his repeated verbalisation of his pain. On 26 February 2019 the Applicant was convicted and sentenced to a 12-month Recognisance Release Order.

    Length of the sentence imposed

    (xi)The maximum sentences for the Applicant’s serious Australian offences are:[14]

    [14] I note that while the Applicant refers to these offences as “serious Australian offences”, arguably the “reckless conduct endanger serious injury” conviction do not come within sub-s (a) of the definition of “serious Australian offences.”

Offence	Maximum Sentence	Sentence Imposed	Time spent incarcerated
Reckless conduct endanger serious injury	5 years’ imprisonment	18 months Community Correction Order; 250 hours community work; 12 months’ motor driver’s licence disqualification	No time
Reckless conduct endanger serious injury	5 years’ imprisonment	$15,906 compensation, four months’ imprisonment	Four months (time served)
Criminal damage by fire (Arson) (two counts)	15 years’ imprisonment	15 months’ Community Correction Order; 150 hours community work	No time
Cause harm to Commonwealth Officer (Law Enforcement)	13 years’ imprisonment	12 months’ Recognisance Release Order	No time

(xii)While significant terms of imprisonment were available to the sentencing courts on each occasion, the only term of imprisonment imposed was a term of four months’ imprisonment for “Reckless Conduct Endanger Serious Injury”. This was the time the Applicant had already served on remand while he awaited sentencing.

(xiii)The sentences imposed highlight that, while the Applicant required assistance to rehabilitate from his drug addiction and past trauma, he was not viewed by the courts as a danger to the Australian community such that he should be imprisoned for any significant periods of time.

(xiv)Although the judge’s sentencing remarks from January 2017 have not been provided to the Tribunal, it was reported in a newspaper article that the magistrate took into account the Applicant’s past trauma and did not impose a term of imprisonment, even after considering that the Applicant may be released into the Australian community. Conditions of the Applicant’s Community Correction Order were to undergo treatment and rehabilitation for drug use and mental health.

(xv)In RVJB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[15] the applicant had received sentences for violent offences included a three-year term of imprisonment and a one-year term of imprisonment served concurrently yet, nevertheless, found that the applicant was not a danger to the Australian community.[16]

[15] [2020] AATA 665.

[16] Noting see also MHCZ and Minister for Home Affairs [2019] AATA 4259.

(xvi)This consideration weighs in favour of the Applicant satisfying s 36(1C) as it evidences that he has not been considered by Australia’s criminal justice system to present an immediate danger to the Australian community.

Criminal record in totality

(xvii)When assessed in accordance with s 36(1C) of the Act, the Delegate found that none of the offences committed by the Applicant before he came to Australia amounted to a “serious foreign offence”.

(xviii)In light of the IAA’s finding that the Applicant is a refugee who is unable to obtain state protection from the Iranian authorities, the offences in Iran should be given little weight to the Applicant’s overall history of offending. There is no evidence before the Tribunal that the Applicant was afforded due process.

(xix)The assault against an Iranian officer in 2002/2003 was committed after the Applicant’s sister and father were executed so less weight should be given to this offence.

(xx)The Applicant was not convicted of an offence arsing out of the incident in immigration in 2016 so no weight should be given to that incidence when assessing the Applicant’s criminal record.

(xxi)The Applicant acknowledges that his offences in Australia, even though not all serious Australian Offences pursuant to s 5M of the Act, are serious as they have the potential to harm members of the Australian community.

(xxii)These offences occurred within a six-month period when the Applicant was under the influence of crystal methamphetamine.

Risk of recidivism, likelihood of relapsing into crime and prospects of rehabilitation

(xxiii)Insofar as the Minister relies on the Applicant’s past behaviour in detention to demonstrate that he has not rehabilitated, other than the 21 April 2018 offence, the reports from detention are all alleged incidents. None resulted in charges or convictions, and no further action was taken.

(xxiv)The Applicant experienced cruel and inhumane treatment by the Iranian authorities while in custody. In the pre-sentence report dated 3 November 2016 by Dr Kevin Ong, Dr Ong concluded that “due to [the Applicant]’s significant history of trauma, he would no doubt find any term of imprisonment more onerous than a prisoner without his history.”

(xxv)The environment in prison and detention is more intensive that the environment in the community. The Applicant has developed and implemented techniques to cope with his addiction, mental health issues and controlling his anger.

(xxvi)Since the Applicant ceased using all medication for his mental health and illicit drugs, his behaviour in detention has shown improvement.

Changes in circumstances

Drug use

(xxvii)The Applicant concedes that before his arrival in Australia he was “a recreational user of cannabis. He used this unsuccessfully as a coping mechanism for his past trauma”.

(xxviii)The Applicant’s behaviour under the influence of crystal methamphetamine does not represent him as a person and that since around 2019 he has not used illicit drugs or prescribed psychological medication and has not committed any offences. He has abstained from illicit substances since he was arrested in August 2016.

(xxix)Independent psychological assessment conducted by Dr Phil Watts, a clinical psychologist, stated that the Applicant’s time in detention is difficult and only grows more difficult the longer he is there.

(xxx)The Applicant’s abstinence from drugs in immigration detention where he has experienced extreme stresses and where illegal substances are available, in combination with the support he has available to him in the community, lower his risk of lapsing into drug use to minimal.

Mental health

(xxxi)The Applicant has been diagnosed with various mental health issues including PTSD. He has been treated with various medications since his arrival in Australia however feels that this never adequately provided relief. In fact, he feels the opposite, that these medications hindered his ability to control his anger.

(xxxii)The Applicant concedes that Dr Watts’ assessment is that if he were to engage in drug use again, he would be a risk to the community but that in the circumstances, “… there is some chance that [MQHN] will be able to integrate into Australian society and be of no danger”.

(xxxiii)The Applicant acknowledges that he still has a long way to go in his treatment for his past trauma, however, he is eager to continue treatment in the Australian community.

Support in the Community

(xxxiv)The Applicant’s friends, Mr Mohammad and Mr Nosrati, have offered the Applicant substantial support upon his release into the Australian community. The Applicant’s former employer, Mr Agahi, is committed to supporting the Applicant in whatever way possible.

(xxxv)If the Applicant is released back into the community, he will reconnect with his family. His brother has also promised to help him upon his release.

(xxxvi)The Applicant will have substantial support in the Australian community if he is permitted to re-enter it. This support includes financial, practical and emotional support from people he has known for a long period of time. He will be supported with his ongoing treatment for mental health issues, he will be supported to set himself up in a stable home and with obtaining stable employment.

Rehabilitation

(xxxvii)While in immigration detention the Applicant has regularly attended counselling and psychologist appointments. He has always been open with the counsellors and psychologists in regard to his past trauma, offending behaviour and his desire to move on from those times in his life.

(xxxviii)Notes made by IHMS following mental health consultations showed that the Applicant engaged well in the counselling sessions.

(xxxix)He was receiving help from his sister who “has psychological training in Iran”.

(xl)Dr Watts has suggested that the Applicant should continue rehabilitation, especially using a trauma therapy, such as EMDR (Eye Movement Desensitisation and Reprocessing).

(xli)In June, July and August 2019, the Applicant attended weekly Men’s Group meetings held at Yongah Hill Immigration Detention Centre. In July, August and September 2019, the Applicant attended weekly Lifeskills workshops. On 10 September 2019, 24 September 2019 and 8 October 2019 the Applicant participated in an anger management course run by Ngala Dads WA.

(xlii)The Applicant’s commitment to abstaining from substance abuse, demonstrated over a prolonged period where he has faced many stressful situations, demonstrates his continued desire to control his emotions and behaviour. He has completed anger management and substance abuse courses while in detention and has incorporated these techniques. He has developed strategies through online courses, discussions with his sister and extensive reading and research on the subject.

Employment

(xliii)The Applicant has worked as a motor mechanic in Australia and overseas. His former employer, Mr Agahi, has promised to help him find employment.

(xliv)Many independent reports and studies into the risk factors of recidivism have found that being employed following a release from incarceration tangibly reduces a released prisoner’s risk of reoffending.

(xlv)Factors including steady employment where bonds are formed with the employer, returning to the pre-prison employer, being engaged in full-time employment, and working in a higher occupational level, have been found to reduce the risk of reoffending.

(xlvi)This is supported by reports and studies including those by the Ministry of Justice (UK), the Prison Project study (conducted in the Netherlands), the Australian Institute of Criminology’s Report Recidivism in Australia: findings and future research and The National Institute of Justice (US).

(xlvii)Dr Watts also concluded that if the Applicant is able to occupy his time in a productive manner, this lowers his likelihood of reoffending.

Inability to return to Iran

(xlviii)The Applicant has been found to be a refugee within the meaning in s 5H of the Act. The Iranian government will not accept involuntary returnees and failed asylum seekers and the Applicant will not voluntarily return to a country that he has fled and where he fears he will be killed. If the Applicant is deemed not to satisfy s 36(1C) of the Act, and thus cannot be granted the protection visa, he will be detained in Australia’s immigration detention centres indefinitely.

(xlix)The Applicant is acutely aware that this is his final chance at a better life and that if he were to offend in the future, he would not be permitted to remain in the Australian community. He fears for his safety in Iran and cannot return, either voluntarily or involuntarily.

(l)This added motivation to never reoffend lowers the Applicant’s risk of reoffending far below that which constitutes there being a risk of “immediate harm or harm in the reasonably foreseeable future”.

(b)The Applicant contends that based on the evidence provided, regardless of whether the Tribunal adopts the approach of Deputy President Tamberlin in WKCG or the higher threshold test of Logan J in DOB18 v Minister for Home Affairs,[17] it cannot be reasonably concluded that he is a danger to the Australian community.

[17] (2019) 269 FCR 636.

The Minister

1. The Minister’s Statement of Facts, Issues and Contentions (MSFIC) states his case as follows:

   (a)Deputy President Tamberlin identified some relevant considerations to which regard may be had in answering the question in WKCG. The Minister identifies the factors referred to by the Applicant as set out in [25] above.

   (b)This “checklist of relevant considerations” is not intended to be an exhaustive list requiring slavish adherence but nevertheless provides a useful guide to the task before the Tribunal.[18]

   [18] Citing MHCZ.

   (c)In having regard to the considerations identified by the Tribunal to be relevant in this matter, there is no requirement in s 36(1C) of the Act that it balance the danger to the community posed by the Applicant against the possible consequences of his removal from Australia.[19]

   [19] Citing SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174 and LKQD v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2019) 167 ALD 17.

   (d)Deputy President Tamberlin at [31] of WKCG considered it would be sufficient for there to be a “real or significant risk or possibility of harm to one or [sic] members of the Australian community”, and that it was “not necessary to establish that there is a probability of a real and immediate danger of present harm” (original emphasis).

   (e)Logan J in DOB18 held that, read in context, “danger” in s 36(1C) means “present and serious risk”, and to the extent that WKCG suggested otherwise, his Honour disagreed.

   (f)Jackson J in LKQD rejected a contention that the danger referred to in s 36(1C) should be construed to mean a “very serious danger”, holding that it simply said “danger” ([57]). His Honour considered the remarks of Logan J and found, without deciding their correctness, that even the “present and serious risk” standard did not rise to the level of “very serious danger”.

   (g)Deputy President Tamberlin in WKCG at [31] observed that danger in Art 33(2) of the Refugees Convention, on which s 36(1C) was modelled, calls for the decision-maker to have regard “to the future as well as the present” and that the provision “is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future”. As for a serious risk of danger, Deputy President Tamberlin observed that a “real or significant risk or possibility of harm” was sufficient – that is, a “real or significant risk of harm” or a “real or significant possibility of harm”. This is consistent with Logan J’s approach in DOB18. Regardless of which test is adopted by the Tribunal in this matter, the Applicant is plainly a danger to the Australian community.

   (h)The Tribunal is not exercising a discretionary power (like that found in s 501CA(4) of the Act). Section 65 of the Act requires that if the Tribunal is not satisfied that the criteria for the visa have been satisfied, then it is to refuse to grant the visa.

   (i)The Minister refers to the principles set out in Direction 75 and the role of the Refugee Law Guidelines in assessing the matters in s 36(1C) and s 36(2C)(b), in particular ch 14.

   (j)The Applicant has been convicted by final judgment of numerous, particularly serious crimes and of multiple counts of “reckless conduct endanger serious injury” and criminal damage by fire (arson). These later offences involved serious damage to property and were punishable by imprisonment for a maximum term of not less than three years.

   (k)The Applicant has also been convicted of cause harm to Commonwealth public official, being an offence involving violence and also punishable by imprisonment for a maximum term of not less than three years. Each of those offences are therefore serious Australian offences under s 5 of the Act and particularly serious crimes under s 5M of the Act.

   (l)In relation to the factors identified by Deputy President Tamberlin in WKCG:

   Seriousness and nature of the crimes committed, length of sentences imposed and aggravating circumstances

   (i)The Applicant’s offending has been serious. On 6 March 2016, the Applicant unlawfully assaulted a man by punching him repeatedly to the head and face in a random and unprovoked attack.[20]

   [20] I note that the Applicant was not charged with an offence arising out of this incident and denied that he had hit the person as claimed (transcript at 52).

   (ii)On 15 August 2016, the Applicant went with his ex-girlfriend to a drug dealer’s house, got into an altercation with him and the drug dealer attempted to “serious harm me with a machete”. The Applicant responded by getting into his car and driving the car into the drug dealers house multiple times.

   (iii)On 17 August 2016, police were called following the Applicant having a fight with his girlfriend, her leaving and him becoming increasingly erratic. He threatened to “cut” his girlfriend and her lover, threated to kill himself and burn the house down, set fire to the garage, furniture and personal items in the garage and then used a can of Glen 20 and a lighter “as a flame thrower”, turning it towards another occupant of the house. The Applicant also started another fire inside a bedroom and the fire started to encroach on another unit.

   (iv)The Applicant was described as having been on a 10 day “ice binge” leading up to those offences.

   (v)On 22 April 2018, the Applicant made threats of self-harm after complaining that he was in severe pain and was refused ibuprofen. The Applicant was abusive and aggressive and attempted to head butt an officer. The sentencing judge found that the Applicant did not accept responsibility for what had occurred.

   Mitigating circumstances

   (vi)The Applicant asserts that his criminal offending in Australia largely occurred as a result of the deterioration of his mental health as well as the influence of methamphetamine.

   (vii)Based on disclosures in his entry interview, the Authority put the Applicant’s claims in relation to his mental health as follows:

   “… the applicant has suffered severe mental health conditions since he was young. He did not do compulsory military service for this reason and was diagnosed with multiple personality disorder in around 2000. The applicant suffers greatly from the effects of significant trauma he has experienced in Iran and Cyprus and has been seeking the assistance of a counsellor from Foundation House while in immigration detention”.[21]

   [21] Citing R1, T16/154–5.

   (viii)The Applicant’s mental health issues should not be viewed as a mitigating factor of the kind that might lessen his moral culpability in circumstances where he contributed to his own deteriorating mental health by taking methamphetamine and other illicit drugs.

   (ix)Irrespective of whether or not the Applicant’s mental health issues or drug dependence could be said to mitigate the Applicant’s past conduct, they weigh against him in the final assessment of whether he is a danger to the community. This is particularly so given there is no evidence that the Applicant’s mental health issues and drug dependence have been sufficiently addressed such that the risk of recidivism remains high.

   The criminal record as a whole

   (x)Despite the Applicant’s limited time in Australia, he has already accumulated a significant criminal history. The frequency and seriousness of the offending demonstrate that the Applicant is a danger to the community.

   Risk of re-offending/prospects of rehabilitation

   (xi)There is a lack of psychological or psychiatric evidence supporting the Applicant being rehabilitated.

   (xii)With respect to the Applicant’s drug use, contrary to his assertion that he meddled with methylamphetamine because he befriended the “wrong type of people” in Australia,[22] the evidence suggests that his drug use is far deeper entrenched than he has suggested. He commenced using illicit drugs in his adolescence, even prior to coming to Australia.[23] The lack of evidence to demonstrate his ability to abstain from drug use, in the face of sustained drug use in the past, is such that the risk of reoffending remains high.

   (xiii)While the Applicant has provided certificates evidencing his participation in programs on anger management and other topics, critically, there is limited evidence on how such programs have addressed his mental health issues and illicit drug use.

   (xiv)The Applicant’s claimed rehabilitation is also contradicted by the fact that he has been involved in numerous altercations, including violent altercations, during his time in detention.[24]

   (xv)The imposition of fines, community correction orders, licence disqualification and ultimately even a custodial sentence have been unable to dissuade the Applicant from re-offending or engaging in other anti-social and aggressive behaviour.

   (xvi)The Applicant has repeatedly demonstrated a disregard for the law and for law enforcement authorities. In circumstances where the Applicant has frequently committed offences, including in Australia, Iran and Cyprus[25] and there is insufficient evidence before the Tribunal for it to be satisfied that the Applicant has adequately addressed the cause of his offending, the risk of him re-offending remains a real possibility.

   [22] Citing R1, T13/121.

   [23] Citing R1, T28/327; T13/123.

   [24] Citing R1, T23/219–270.

   [25] Citing R1, T7/67.

   CONSIDERATION

1. As both parties noted, there are two leading, and potentially conflicting, authorities on the interpretation of s 36(1C)(b) of the Act, namely WKCG and DOB18. Deputy President Tamberlin’s statements in WKCG are often cited as the preferred statement of the meaning of “danger to the Australian community”.[26] Deputy President Tamberlin said in WKCG:

   [25] The question of whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

   [26] Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

   ...

   [31] The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable”.

   (Original emphasis.)

   [26] I note that the Refugee Law Guidelines specifically adopt the factors set out in WKCG (see [22] above).

2. Until the judgment in DOB18, the legal position was reasonably clear. As Logan J noted at [76] in DOB18:

   In Australia, an influential case in relation to the subject of “danger” as used in Art 33(2) of the Refugee Convention and now in s 36(1C) of the Act has proved to be the Administrative Appeals Tribunal case, WKCG...

3. As his Honour noted, various aspects of Deputy President Tamberlin’s approach in WKCG have been followed in subsequent cases. At [77] of his judgment, Logan J noted that:

   SZOQQ was determined by the Administrative Appeals Tribunal on the basis, promoted by the parties, that WKCG was correctly decided, as it was before the Full Court. But the Full Court expressly left open the correctness of WKCG.

4. At [78] Logan J observed that:

   ... it be accepted that considerations to which the Deputy President adverts at [26] are pertinent. In EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (EWG17), Collier J referred to WKCG with apparent approval but her Honour’s approval (at [52]) expressly related to the proposition (found in WKCG at [25]), that “danger” must be determined in the circumstances of a given case.

   (Original emphasis.)

5. At [80] Logan J noted:

   My own further researches have disclosed that, also last year, WKCG was additionally referred to in this Court by Charlesworth J in AFY18 v Minister for Home Affairs [2018] FCA 1566 and by Siopis J in Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27. In neither case was there any need to consider the correctness of all that was said in WKCG about “danger”.

6. As alluded to by Logan J, the Tribunal has on numerous occasions adopted the approach taken by Deputy President Tamberlin in WKCG.[27] As I noted above, that approach is also adopted in the Refugee Law Guidelines (see [22] above). More recently I followed that approach in TDPG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[28] and SQDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[29]

   [27] RWDX and Minister for Home Affairs [2019] AATA 123; MVLW and Minister for Immigration and Border Protection [2017] AATA 1557; LKQD; HSCK and Minister for Home Affairs [2019] AATA 4392.

   [28] [2021] AATA 503.

   [29] [2021] AATA 2980.

7. As I noted in TDPG and SQDD, I read Logan J’s judgment as saying that the particular aspect of Deputy President Tamberlin’s decision with which his Honour had an issue, is the Deputy President’s test for “danger” as set out in [31] of his decision, namely that “... it will be sufficient if there is a real or significant risk or possibility of harm ... It is not necessary to establish that there is a probability of a real and immediate danger of present harm”. (Original emphasis.)

8. Logan J’s view at [83] and [85] of his judgment was that:

   83 In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that [sic] just “risk”.

   ...

   85       Within the Act, s 5H(2) in the definition of “refugee” can be seen to be responsive to Art 1F in the same way that s 36(1C) can be seen to be responsive to Art 33(2). In Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, at [16], the United Kingdom’s Supreme Court held that Art 1F of the Refugee Convention should be interpreted narrowly and restrictively, because of the potential consequences of excluding someone from the application of that convention. That same “potential consequences” rationale should, in my view, inform the construction of s 36(1C) of the Act.

9. The Minister contended (see [26(g)] above) that, insofar as WKCG and DOB18 could be considered to apply a different test for the level of risk, “regardless of which test is adopted by the Tribunal in this matter, the Applicant is plainly a danger to the Australian community”.

10. In HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[30] the Tribunal did not consider that there was any necessary inconsistency between WKCG and DOB18 as WKCG did not equate “danger” to mere “risk”, but rather it would be considered sufficient for “danger” to be established if there is a real or significant risk or possibility of harm to one or more members of the Australian community. I agree that that is the case.

    [30] [2020] AATA 1967.

11. In LKQD Jackson J held that the standard does not rise to the level of “very serious danger”. In relation to DOB18, Jackson J noted at [62]:

    To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’ and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of ‘very serious danger’ urged on behalf of the applicant.

12. In relation to whether consideration of s 36(1C) requires a balancing exercise, Jackson J at [63] of his decision in LKQD found:

    ... the decision in SZOQQ is authority for the proposition that Art 33 requires no balancing between the undesirability of refoulement and the danger to the Australian community that an applicant may pose. SZOQQ was overturned in the High Court, but on a different ground that had not been put to the Full Court: see SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 251 CLR 577 at [16]. The Tribunal in the present case committed no error in following the Full Court in SZOQQ. The published opinion of the UNHCR in the note referred to cannot change that.

13. The Minister’s position on the issue of a balancing exercise was made clear by counsel in opening[31] and closing.[32] The Applicant’s position was a little less clear. In the course of the Applicant’s counsel’s closing submissions, I asked the Applicant’s counsel what consideration should be given to the risk the Applicant is likely to face if he is refouled or detained for an indefinite period. Her response was:

    We contend that it’s to do with an assessment of what level of risk is acceptable and what satisfaction the tribunal is required to have in order to deem the applicant is a danger.  Now that's not to verge on the difference between the tests in the sense that what is a danger.  It's to do with the level of evidence before the tribunal and the fact that these consequences are so severe, and that it's - given the severity of the consequences that appropriate consideration and the level of satisfactory the tribunal needs to have that the applicant is a danger, whether that's presently or whichever definition the tribunal elects to engage with.  That level of satisfaction needs to be higher than a situation where the consequences are not as severe.[33]

    [31] transcript at 4.

    [32] transcript at 102.

    [33] transcript at 97.

14. Counsel further explained that it was not the Applicant’s case that the level of risk that was affected by the consideration, but rather “the level of evidence to satisfy [the requisite level of risk] that needs to be stronger”.[34] Ms Angel put it as follows:

    There's case law establishing that the risk of harm to the applicant is not to be weighed against the risk and in that sense we accept that you can't vary the degree of risk which the tribunal is willing to accept.  What we're simply stating is that given the severity of the decision, what evidence is required to satisfy the tribunal of that risk, what is a danger, that needs to be higher.[35]

    [34] transcript at 98.

    [35] transcript at 98.

15. I take the Applicant’s case to be, in effect, applying the principle enunciated in Briginshaw v Briginshaw.[36]

    [36] [1938] HCA 34; (1938) 60 CLR 336.

16. I am satisfied that the relevant considerations in assessing whether the Applicant is a danger to the community are those identified in [26] of Deputy President Tamberlin’s decision in WKCG (see [27] above) which are adopted by the Refugee Law Guidelines. Each of those factors is considered below. I also address Logan J’s interpretation of the meaning of “danger to the Australian community” in [83] of his judgment in DOB18 (see [34] above). Both parties’ SFICs and submissions at the hearing were made on the basis of these being the relevant principles and considerations.

    Nature and seriousness of the crimes committed

17. The Applicant acknowledges that his offences are “very serious”.[37] I agree with the Applicant’s assessment. The nature of the offences and the circumstances in which they were committed, particularly the offences committed on 14 and 17 August 2016 (see [25(a)(vi) and 25](a)(vii)] above) must be treated as very serious. The potential for harm to individuals as well as to property, in setting fire to a residence is obvious.

    [37] ASFIC para 69.

    The length of the sentences imposed

18. The Applicant has been sentenced to 18 months and 15 months Community Correction Orders, 250 hours of community work, ordered to pay $15,906 compensation, four months’ imprisonment and a Recognisance Release Order.[38] As the Applicant submitted in his ASFIC, the sentences imposed by the courts have been at the lower end of the scale of sentences for the relevant offences.

    [38] R2, 6; R2, 27–30.

    Mitigating or aggravating factors

19. The potentially mitigating factors are the Applicant’s antecedents, in particular the violence and trauma that he suffered and witnessed in Iran and his substance abuse. In his statement dated 26 February 2021,[39] the Applicant says, “I accept responsibility for all of my offences. They are not me. They are the drugs.”

    [39] Included in A1.

20. Dr Kevin Ong, forensic psychiatrist, provided a report dated 3 November 2016 to the Applicant’s then lawyers.[40] In that report Dr Ong made the following observations:

    [40] A1, 29–40.

    There was no formal thought disorder. [MQHN] acknowledged ongoing flashbacks and anxiety in regard to his past experience of torture in his homeland. [MQHN] claimed to be hopeless and helpless, with chronic thoughts of self-harm "to be with my mother", though this had lessened due to his belief that he was "protected". He claimed to be incarcerated "for nothing" and that he had "lost respect...lost everything". Whilst there was no evidence of delusions, [MQHN] claimed that he heard the voice of his deceased mother "all the time", exacerbated when he was angry or upset.

    …

    In regards to insight, [MQHN] acknowledged the detrimental impact of substance use on his mental state and offending. He appeared to have a sense of foreshortened future, and appeared ambivalent about addressing his mental health problems.

    …

    [MQHN] stated that he was born in Iran into a Sufi family, a minority in the country. He stated that his family faced persecution by the Hezbollah Islamist group, supporters of the Ayatollah. He gave an example of his eldest sister being hung for her religious beliefs in 1978, before [MQHN] was born.

    [MQHN] stated that he was the youngest in his sibship of 6. He related a history of his father being executed when [MQHN] was 11 years old. He stated that his mother "died in my arms" when he was 23 years old. He attributed this to her having a heart attack out of fear that [MQHN] would be taken away by religious police.

    …

    [MQHN] stated that he had been subjected to multiple episodes of torture by the religious police and Hezbollah in Iran. This included multiple arrests, beatings, being shot and stabbed. Eventually, he fled Iran after his mother's death, seeking asylum initially in Cyprus, where he spent 6 years. He eventually made it to Indonesia, and then journeyed to Australia by boat in 2013.

    …

    [MQHN] acknowledged a downward spiral when he was offered methamphetamine (ice) by the mechanic he worked with. He also attributed the onset of troubles to his most recent girlfriend and described his relationships in general as "always trouble". He stated that he had previously had a long-term girlfriend in Cyprus, but the relationship ended due to religious differences. He also admitted to brief liaisons with prostitutes in Indonesia.

21. Under the heading “Psychiatric History”, Dr Ong reported:

    [MQHN] admitted to a history of multiple deliberate self-harm attempts. He estimated that he has had at least 19 serious attempts in the past but that he was still alive because "someone protects me". He stated that he had been driven to self-harm due to the desire "to be with my parents", and that he had no future in the current life, wishing to be in "paradise" instead. He appeared more ambivalent about his wish to die at present, stating that he didn't want to kill himself anymore as "someone protects me". He was unsure what this presence was, though stated that he felt "my mother and father are with me". He denied being particularly religious, attributing most of his traumatic experiences to religious zealotry.

    … [MQHN] stated that he had engaged in overdoses, attempted hangings, jumping from heights and, more recently, setting the building he was in on fire. He acknowledged attempts occured in Iran, Cyprus and Australia. He also gave a more varied response in regards to reasons for self-harming. He stated that he had been "just tired", viewed the world as a "bad place", and that at least four of the attempts were driven by failed relationships where he felt "betrayed".

    …

    [MQHN] reported a variety of ongoing psychiatric symptoms. These included chronic anxiety about the future, hypervigilance, and auditory hallucinations… He claimed little effect from antipsychotic medication such as quetiapine and olanzapine, the latter currently prescribed to him in prison. [MQHN] also claimed that previous use of alcohol, cannabis and amphetamines was to diminish the experience of voices and lability in his mood.

    [MQHN] also reported a variety of other post-traumatic symptoms. He acknowledged difficulty in discussing the past, though “cannot forget it”. He stated that he suffered from flashbacks of torture and attempts on his life, being reminded of these events due to the multiple scars he had on his body. He also described broken sleep and nightmares.

22. Under the heading “Drug and Alcohol History”, Dr Ong reported:

    [MQHN] has previously engaged in binge drinking of alcohol "when down", consuming up to two bottles of wine in a session. He stated that he received “lashings” in Iran when caught consuming alcohol. He did not describe symptoms of physical dependence, even though there were periods where he drunk on a daily basis.

    [MQHN] also described use of cannabis, which he stated that he had used at night to help him sleep. He stated that he used “hashish” in Iran, escalating use after his mother had passed away. He claimed that a doctor in Cyprus had encouraged its use. [MQHN] stated that his use of cannabis in Australia had been minimal until the lead up to his incarceration.

    [MQHN] admitted to use of opium when living in Iran and Cyprus. It is apparently a common social pastime in Iran to smoke opium. He also admitted to the use of heroin in the lead up to the current offences.

    [MQHN] stated that he had been doing well at work in Australia until he was offered methamphetamine (ice) by the mechanic he worked with. He stated that he became a 'junkie" from that point on. … [H]e acknowledged that instead he “lost everything... job, respect, family”. He was using daily in the lead up to offending, at least for four months,  mixing with cannabis and heroin. Use was inhaling, moving to intravenous. He stated that he became “a really bad person... turned into an animal”. He admitted that he became aggressive, “didn't understand others”, and would be “animalistic” if he started withdrawing.

23. Under the heading “Information from Other Sources”, Dr Ong noted:

    … the brief report of Ms Emma Robertson, dated 21st September 2016, which stated that [MQHN] a RAPID (Statewide psychiatric database) check revealed he had been diagnosed with “Mental and Behavioural Disturbance – psychotic disorder” due to the use of psychoactive substances at Maroondah Hospital in August 2016…

    I note the medical summary from International Health and Medical Services, dated 16th August 2013, showed a diagnosis of “Post traumatic stress disorder” for which [MQHN] had previously been prescribed mirtazapine (an antidepressant medication), though he weaned himself of this medication without consultation.

24. Under the heading “Opinion and Recommendations”, Dr Ong opines:

    [MQHN] describes clear symptoms of post-traumatic stress disorder secondary to his experiences. This has led him to become excessively anxious, hypervigilant, have a sense of foreshortened future, and he suffers from nightmares and flashbacks.

    Whilst it is difficult to diagnose a personality disorder on a single cross-sectional assessment, [MQHN] also has elements consistent with at least borderline personality traits, the symptoms of which overlap with his trauma symptoms. These include affective lability, self­harming, proneness to anger, relationship instability, pseudo-hallucinations (hearing the voice of his deceased mother, which classically increases in intensity when he is emotionally aroused), impulsivity and substance use.

    [MQHN] has a history of poly-substance use, with methamphetamine being the most problematic drug in recent time. This would have contributed to problems of aggression, impulsivity and paranoia.

    …

    Due to the intimate link between substance use and offending, [MQHN] should be directed to undertake assessment with an appropriate substance use service. He may also benefit from referral to a psychiatrist for treatment of his post-traumatic stress symptoms.

1. A further psychiatric report was provided by Dr Watts on 21 February 2021.[41] The history recorded as being provided to Dr Watts was largely the same as recounted by Dr Ong in his report. While he had apparently told Dr Ong that he was introduced to “ice” by one of the mechanics with whom he worked, Dr Watts records the Applicant as having told him that he was introduced to “ice” by a “homeless junkie” whose van he was asked to fix.[42] Dr Watts was provided with, amongst other things, Dr Ong’s report.

   [41] A1, 64–70.

   [42] A1, 66.

2. In response to the question of whether the offences committed were “out of character” for the Applicant if he “is not using illegal substances”, Dr Watts responded:

   It is quite clear from Dr Ong’s report that the most serious of [MQHN’s] offences were in the context of methamphetamine use. However, the offences were not out of character, in the sense the borderline element of extreme reactive behaviour at times of distress is consistent with him jumping off the stairs of a plane on leaving Cyprus and running into a glass wall as an attempted escape. These extreme reactive type behaviours are consistent with the borderline personality traits outside of the context of the illegal sub[st]ances.[43]

   [43] A1, 69 para 28.

3. Asked to comment on the impact of his past trauma on his offending behaviour, Dr Watts opined:

   In my opinion, [MQHN]’s problems have been caused by trauma, both early trauma within the family, violent treatment by authorities, especially during his period of abduction in Iran, as well as general life traumas, including the death of his father. Had he not been subjected to such significant and severe trauma, it would not have impacted both his personality and Post-Traumatic Stress Disorder functioning, and nor would the drugs have found a place in his life. Without the trauma, the likelihood of offending would have been quite low.[44]

   [44] A1, 69 para 29.

4. While the Applicant’s antecedents and his substance abuse undoubtedly help to explain his offending, and in that sense be mitigating in considering his culpability, it is difficult to see how these factors are “mitigating” when considering the likelihood of the Applicant offending in the future: that is, being a risk to the Australian community in the future as he has been in the past. The Applicant’s psychiatric issues (PTSD and traits of borderline personality disorder) and his long-standing drug abuse help explain why he committed the serious offences that he did, however, they also represent serious risk indicators for future offending and potential danger to the community.

   Risk of re-offending/likelihood of relapsing into crime and prospects of rehabilitation

5. As Deputy President Tamberlin put it at [26] of WKCG:

   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.

6. At [27] of WKCG, Deputy President Tamberlin further said:

   The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 18 ALR 36; 1 ALD 98 (Salazar), Brennan J said at ALR 38 ALD 100:

   Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.

7. As set out at [25(b)(xxiii)–(l)], the Applicant points to a number of factors which, according to him, sufficiently reduce the risk of his reoffending. Dr Watts addresses that issue in his report as follows:

   23.In regards to risk of reoffending, from a criminogenic perspective, there are three broad factors which appear related to his offending. One is substance abuse, the second is the Post-Traumatic Stress Disorder and the third is the Borderline Personality Disorder traits. The evidence available clearly shows that [MQHN] had a tremendously difficult life with massive trauma against a background of some significant family dysfunction. These types of experiences would have barely given him a chance to survive without him having major problems.

   24.At this time, I struggle to find symptoms of active Post-Traumatic Stress Disorder. Normally with Post-Traumatic Stress Disorder, people are triggered when asked questions about different events and circumstances. [MQHN] was not showing this pattern. However, he has not done any therapy and the type of mind changes he is undergoing are very positive, but it would be unusual to expect it to resolve the underlying trauma. However, there is some evidence to suggest that he is less angry and hostile because of him being less triggered by Post-Traumatic Stress Disorder symptoms.

   25.At this time, [MQHN] is not using substances and has not used for some time. He reports that he is not going to be using substances when he gets out. I note that would significantly lower risk of reoffending if he is able to maintain that position. However, he is in a contained environment, and it is largely unknown as to how well he will cope when the temptations of drugs are readily available.

   26.The third aspect relates to personality traits. Given his extensive and early maltreatments, both within and without of the family, it is likely that there will be aspects of dysfunctional personality traits operating into the future. When things are going well, these will not manifest. However, in a conflict situation, extreme irrational behaviour may occur.

8. In relation to the more specific issue of whether the Applicant is likely to reoffend if he is released into the Australian community, Dr Watts advised:

   27.At the time of this assessment, [MQHN] was not using drugs, reports not wanting to use drugs and was not showing active Post-Traumatic Stress Disorder symptoms. These factors would significantly lower risk. However, due to the likelihood of dysfunctional personality traits and the untested nature of his current situation, I am unable to offer an opinion with any degree of certainty in regards to not committing further offences. In the simplest terms, I believe him to be significantly lower risk than he was in 2013 to 2016 because of the combined attitude changes, the lack of drug use, and absence of Post-Traumatic Stress Disorder symptoms.

9. On the issue of the prospects of the Applicant’s rehabilitation, Dr Watts expressed the following opinion in his report:

   31.It is evident from reading the IHMS notes that [MQHN] has at different times reached out for help. He made reference to still attending an NA (Narcotics Anonymous) group on occasion. There is reference to him doing anger management groups. However, [MQHN] is quite negative in terms of psychiatrists and medication, and did not appear to see psychology as particularly helpful in changing the symptoms (although he found the materials from his sister who he says is a psychologist, and the engagement with IHMS useful). Ultimately, he sees that he has to change his behaviour which is actually quite correct. Therefore, his rehabilitation is more based on an individual basis because of the lack of benefit he has seen from other programs. I contend that he should continue rehabilitation, especially using a trauma therapy, such as EMDR (Eye Movement Desensitisation and Reprocessing). I believe that further treatment would be necessary to lower risk. Given that he has engaged in psychological therapy in the past, I would be optimistic that would do the EMDR therapy which would lower risk.

10. In answer to the specific question of whether Dr Watts considered the Applicant to be a danger to the Australian community, Dr Watts answered:

    34.This is a question which I cannot clearly answer. I am confident that because of his current presentation, the type of philosophies and beliefs which he is developing in regards to managing symptoms and his current absence of substance use, there is some chance that [MQHN] will be able to integrate into Australian society and be of no danger. However, for all the reasons explained above, there remains some possibility that there would be a cascading collapse, typically starting with a significant life stress, the use of substances, followed by some type of dramatic reactive situation, typically involving himself or those around him. However, this is a difficult risk to predict with any degree of certainty due to the complex history of trauma and abuse which this man has suffered and due to the fact [he] remains in a contained environment.

11. Dr Watts was cross-examined at the hearing on certain aspects of his report as follows:

    COUNSEL:     … I understand your report to essentially be saying that substance    abuse would, for example, heighten any risk of reoffending.  Is that, I   mean, a dumbed down version of your opinion?

    DR WATTS:    Yes, what I think - well, (indistinct) what I’m saying is that the    particular serious offences - the most serious offences were in the   context of drug use.  So I think that re-use of drugs would be a   significant elevation in risk.  But what I’ve also said in the report is   that there is a, you know, because of the nature of his, if you like,   personality coupled with trauma, there’s a degree of risk because of   his personality.  But the drug use would significantly escalate it.

    COUNSEL:     So, in relation to the treatment that you’ve referred to - the EMDR -    am I right in suggesting that it’s your understanding that he’s never   had any of that sort of rehabilitation previously?

    DR WATTS:    Well, my understanding is he’s done some counselling.  But I haven’t                     - I wasn’t provided with any reports, or anything, which says that he’s   done EMDR or that he’s done a systematic desensitisation of trauma,   or one of the sort of more techniques which are actually going to help   address trauma.  So, I understand that he’s done some counselling,   but I’m not aware that he’s done serious therapy.

    COUNSEL:     Would I be right in saying that if MQHN were to disengage from his    mental health treatment, or refuse to engage with recommended   treatments, that would, or could, heighten his risk of offending?

    DR WATTS:    Absolutely.  It’s - I’d say there’s two components to it.  One is seeing    a health professional, and being monitored as a level of safeguard.    It’s medication as needed.  He can be referred for medication, and   those sorts of things.  And then the other aspect is that if he wanted   to lower his risk - as I say, he needs to engage with something like   EMDR to treat the underlying trauma.  And if he doesn’t engage, he   won’t address, if you like, the underlying trigger things.  So one is, if   you like, he won’t be maintained at his general level if he doesn’t      comply.  And if he doesn’t do the treatment, he won’t get better.[45]

    [45] transcript at 59–60.

12. I then asked Dr Watts the following question:

    TRIBUNAL:     So of the two - assuming that there is PTSD to some extent present    - of the three underlying - well, putting aside the substance abuse -   of the two, PTSD or Borderline Personality Disorder - the more   concerning, as far as violence and anti-social behaviour would be…   the Borderline Personality condition, would it?

    DR WATTS:    Yes, it would.  Because, look, the Borderline Personality traits - and    I call it traits because, as you’ve again correctly identified, one and a   half hours is not enough to do a formal diagnosis - the history has a   whole clear pattern consistent with that sort of personality disorder.    But the personality disorder traits makes somebody, you know, more   reactive, more illogical, and the drama, if you like - the setting fire to   yourself, jumping off staircases, running into glass walls - is not   PTSD.  That is more of the personality disorder stuff in action.

    TRIBUNAL:     … what is the classic treatment for that manifestation of the    personality disorder traits?

    DR WATTS:    The main type of treatment there is called Didactic Behaviour    Therapy, which is basically a - well, a six month to a year long   program where people learn to challenge their beliefs at a very, if you   like, core, basic level.  So, up until the DBT type treatments, a lot of   the personality disorders were considered not treatable.  There is,   again, science and evidence that it does work, but it’s a fairly long   term, slow process.  But the Borderline Personality Disorder and   PTSD (indistinct) are also quite intertwined.  Most people who - with   Borderline Personality Disorder traits, it comes from childhood abuse,                  and so forth, and trauma.  So there’s a lot of overlap.  So often    treating trauma lowers Borderline Personality Disorder traits.

    …

    TRIBUNAL:     … And I think your conclusion was that the substance abuse is really                     not necessarily a precipitator, but an enhancer of the inappropriate   reaction response, either borne out of the PTSD or the BPD   conditions.  Is that correct?

    DR WATTS:    That is exactly how I’d put it.  So, it escalates - and, again, there’s    several mechanisms - one is it’s a stimulant, so it causes people to   be aroused.  And if you’re already prone to arousal, it makes you   hyper-aroused.  But the other thing is it can also induce   hallucinations, psychosis and so on.  And certainly with Dr Ong’s   report would suggest, sort of like around the time the offence   (indistinct) - the major offences took place, there was concerns about   hallucinations and so forth, which –

    …

    TRIBUNAL:     And in relation to - as far as you’re aware from the treatment history    that the applicant - MQHN - gave you, I think - or is it - are you aware   of MQHN having had any treatment for the Borderline Personality   trait, or the PTSD, as you have described?  For instance, we know   he hasn't had EMDR but the other treatments as far as you know,   from the history given?

    DR WATTS:    From a history given it seems that he has done more the sort of    supportive type therapy to help him get through.  It would have been   a lot more - I would describe it more as probably “general counselling”   is what it looks like, which can help change your thoughts and help   give you a bit of insight but it is not likely to bring about a major   underlying change.

    …

    TRIBUNAL:     Are you in a position to be able to make any assessment of the    likelihood of the applicant engaging in the conduct that he has in the   past?

    DR WATTS:    Yes, well in my opinion if he was to go back to drug use, with his    personality there would be a high risk of  reoffending or moderately   high risk probably my correct terminology.  I think there is still some   degree of risk of acting out because of his personality structure so in   my opinion with - if he had therapeutic support I think that risk would   certainly be lower rather than higher.

    TRIBUNAL:     Yes, and I suppose then the next unfair question for you is in the    absence of that support what is the likelihood of him reoffending?

    DR WATTS:    Well, using a sort of like a structured risk assessment, you look at    certain factors and the mental health history is a risk factor.  The lack   of, you know, antisocial desire is a positive factor but the mental   health personality stuff are negative factors.  So if you would put it on   a sort of spectrum of low, moderate, high or very high, without   treatment, without support you would say you would probably put it   at a moderate risk of reoffending.

    TRIBUNAL:     And that is primarily because of the static factors is it?

    DR WATTS:    That is because of the static factors, the personality type aspects, the                    fact that there has been quite a history of reactivity over a long period   of time and the type of mental health condition he has got because   of that, you know, early childhood developmental abuse type things,   makes him prone to reactivity…But if you put drugs in then you would   be looking at the severe risk.

    TRIBUNAL:     … can you make any assessment or form a view as to the likelihood    of the [A]pplicant going back into the use of drugs?  Or is that   something you just simply can't comment on because it is subject to   his environment?

    DR WATTS:    Well again, just in terms of how he presented - I do a lot of work in    the whole addiction area and I have - one of the things I look for is   the belief system and the attitudes around it.  I would put him as lower   rather than higher risk of going back into the drugs but I wouldn't put   him as no risk of going back into it.  His attitude - he recognises that   they have been problematic but until he is in the community and   faced with difficult times and not use drugs, there really isn't the   evidence to go that he is past it but he doesn't have that sort of - if   you like, the desperate belief system that I would go, "Yes, he is       highly likely to go back to drugs."[46]

    [46] transcript at 61–5.

13. As set out in [25] above, the Applicant identifies a number of factors that he says militate against him offending as he has in the past. The Applicant points to changes in circumstances from when he was offending. He says that he has abstained from drug use since his incarceration. That may be the case, however, as the Minister points out, the Applicant’s drug use is long-standing and, contrary to his claim that his problematic drug use started when he befriended “the wrong type of people” in Australia, he had been a regular drug user long before he came to Australia. The Applicant’s evidence was that he had undertaken:

    …a lot of different courses.  I have got evidence to show you, but most if was for anger management, drug and alcohol I use, I did on-line also practicing sleep practise and family kind of courses, related to family.[47]

    [47] transcript at 13.

14. The Applicant’s statement dated 26 February 2021 merely says that he “… did courses to help with [his] anger management and substance abuse. [he] read on the internet and [his] sister in Iran has helped [him] with techniques and strategies to deal with [his] mental health issues.”[48] A number of certificates of participation in various programs were included in the T documents: Lifeskills and Men’s Group;[49] Ngala Anger Management and Lifeskills.[50] There was also a letter from Substance Treatment and Recovery (ST&R) dated 21 July 2016 offering admission into Windana Residential Withdrawal Service included in the Applicant’s bundle.[51] The Applicant’s evidence was that he did not take up that residential treatment.[52] The Applicant’s counsel summarised the position in closing:

    The [A]pplicant has engaged with counselling and courses in immigration detention over the past four-and-a-half years and he has acknowledged that he needs to confront his past trauma rather than ignoring it, self-medicating with illicit substances or alcohol which he gave evidence of that that was his mindset prior to being detained.  He’s willing to try any sort of therapy and counselling to assist and even [those] suggested by Dr Watts.[53]

    [48] A1, 6 para 34.

    [49] R1, T20/209–10; R1, T21/212–3.

    [50] R1, T23/272–3.

    [51] A1, 25.

    [52] transcript at 21.

    [53] transcript at 95.

15. The Applicant also points to the offer of employment if he were to be allowed to stay in Australia. Mr Agahi, his former employer who lives in Victoria, the Applicant’s older brother who lives in Victoria, Mr Mohammad who lives in Sydney, Mr Nosrati who lives in Victoria provided statements in which they offer support to the Applicant in gaining employment. None, however, is in a position to actually provide the Applicant with a job. The Applicant’s evidence was that he does not want to return to Victoria because he wants to distance himself from those who were a bad influence on him in the past. Unfortunately, Mr Agahi is the only one of the Applicant’s friends who would be in a position to actually give the Applicant a job, however, that could only be in Victoria. Mr Agahi gave evidence at the hearing that if the Applicant were to relocate to Sydney, he would not be able to offer him a job but could provide financial assistance.[54] Mr Agahi conceded that he did not have any contacts in Sydney who would be able to give the Applicant employment.[55]

    [54] transcript at 79.

    [55] transcript at 84.

1. Similarly, Mr Mohammad’s evidence was that he would support the Applicant in finding work, however, he could not give him a job. He referred to a person, Mr Sharhman (presumably Mr Agahi), who apparently has a mechanical repair shop. I asked Mr Mohammad whether Mr Sharhman could provide a job to the Applicant. Mr Mohammad’s response was that he “did not have any contact with Sharhman” and that Mr Sharhman was in Melbourne in any event.

2. While the Applicant refers to a job as being an influence against him returning to offending, there is little evidence that the Applicant would be able to get employment. The total of the evidence in this regard is that he has friends who have indicated that they will help him find employment. How successful those efforts might be is a matter of speculation. It could not be said that the Applicant is certain to have employment if he were to be released back into the community.

3. In closing, counsel for the Applicant submitted that:

   Now, in terms of his employment, outlined in our written submissions there’s a direct correlation with employment upon release into the community and reducing recidivism.  The applicant has an offer of employment if he returns to Melbourne and that support is extensive and goes beyond just employment.  It’s clear, however, that at this point in time he intends to turn down that in an attempt to avoid Melbourne and the negative influences there.  Now, regardless both Mr Mohammad and Mr Agahi have promised to use their connections and their willingness to obtain work for the applicant in Sydney or Melbourne.[56]

   [56] transcript at 95.

4. The difficulty with that submission is that Mr Agahi’s evidence was that he does not have any contacts in Sydney who would be in a position to provide the Applicant with employment and while Mr Mohammad lives in Sydney, he too had no contacts who could provide employment to the Applicant. The Applicant has no formal trade qualification; the Applicant speaks little English, which would be an impediment in his finding employment and is unable to identify any contact who could provide employment. The prospects for the Applicant obtaining employment are poor.

5. In relation to the Applicant’s claims of more general support, his friends have provided statements (and Mr Mohammad and Mr Agahi gave oral evidence) that they would provide support to the Applicant, however there was no detail about what that support would be. For his part, the Applicant’s plans for his release into the community are vague. For instance, it is not clear where or with whom the Applicant intends to live if he is released back into the community. It must also be noted that the supports that are being offered were present, or at least available, to the Applicant at the time that he started his serious substance abuse and offending. There is nothing to give me any confidence that the support offered would be any more effective now than it was in the past.

6. The other factor that the Applicant puts forward as militating against reoffending and being a danger to the Australian community is the prospect of the Applicant being returned to Iran, or more likely given Australia’s non-refoulement obligations, detained for an indefinite period. I accept that the prospect of the Applicant being held in detention for an indefinite period would be something that would, or at least should, give the Applicant cause not to reoffend. I note, however, that the Applicant only came to Australia in 2013 and shortly thereafter started seriously offending. It would surely have been within the Applicant’s consciousness that such serious offending would jeopardise his visa status or his ability to obtain a visa; nevertheless, he offended. Further, by the Applicant’s own claim, he committed the serious offences when he was under the influence of methamphetamine and potentially other substances. The risk that I am concerned with is the risk of the Applicant being unable to control himself, in particular reacting in stressful situations while under the influence of illicit drugs and/or as a result of his mental conditions. In those states the Applicant is unlikely to make a reasoned decision not to offend based on an analysis of the consequences of his actions.

7. I am not satisfied that the Applicant has done enough to address the underlying causes of his offending behaviour. I refer to the evidence of Dr Watts quoted in [62] above. Dr Watts’ assessment was that the Applicant was a moderate risk of reoffending if he did not engage in the sort of treatment that Dr Watts suggested would be appropriate. The Applicant has not had any such treatment to date, in particular for what Dr Watts identified as borderline personality disorder traits. As far as the evidence indicates, other than general statements by the Applicant that he intends to have treatment, no steps have been taken by the Applicant to secure that treatment if he were released back into the community. In real terms, we have nothing more than the Applicant’s general statements that he would seek treatment.

8. While Dr Watts put the Applicant at the “lower rather than higher risk of going back into the drugs” (see [62] above), Dr Watts observed that it is not until the Applicant is back in the community that a meaningful assessment of that risk can be made.

9. Based on all of the evidence, I am satisfied that there is a real or significant risk or possibility of harm to one or more members of the Australian community if the Applicant were to be released into the community, thereby meeting the test in [31] of Deputy President Tamberlin’s decision in WKCG (see [27]) above).[57] The Applicant poses an unacceptable level of risk of danger to the Australian community. In so finding I am mindful of statement of the Federal Court in Vabazav Minister of Immigration and Multicultural Affairs[58] that:

   The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.

   [57] Note the statement of Deputy President Handley in BHYK and Minister for Immigration and Citizenship [2010] AATA 662 that the test is whether the applicant is a risk to “one or more members of the Australian community”.

   [58] [1997] FCA 148.

10. The Minister submitted that, even if the comments made by Logan J in DOB18 (see [34] above) were to be taken to be setting a higher standard than that set out by Deputy President Tamberlin in WKCG, the standard set by Logan J is met in this case. At [83] of his judgment, Logan J stated that “read in context, ‘danger’ in s 36(1C) means present and serious risk” (see [34] above). If that is to be taken as the standard rather than that stated by Deputy President Tamberlin, then I find that, if the Applicant were to be released into the Australian community, he would be a present and serious risk.

    DECISION

11. l find that:

    (a)the Applicant has been convicted by a final judgment of a particularly serious crime, and

    (b)the Applicant is a danger to the Australian community; and

    (c)as a result the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act.

12. Accordingly, the decision of the delegate of the Minister made on 20 October 2020 to refuse the Applicant the protection visa under s 65 of the Act is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

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

Associate

Dated: 28 January 2022

Dates of hearing:	30 June 2021 & 1 July 2021
Counsel for the Applicant:	Ms J Angel
Solicitors for the Applicant:	Estrin Saul Lawyers
Counsel for the Respondent:	Ms E Tattersall
Solicitors for the Respondent:	Sparke Helmore Lawyers