MQRW and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2018
•8 October 2025
MQRW and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2018 (8 October 2025)
Applicant/s: MQRW
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/0132
Tribunal:General Member A. Maryniak KC
Place:Melbourne
Date:8 October 2025
Decision:The Tribunal sets aside the reviewable decision and remits the matter to the Minister for reconsideration with a direction that the Applicant satisfies s 36(1C) of the Migration Act 1958 (Cth).
.............................[SGD]...........................................
General Member A. Maryniak KC
Catchwords
MIGRATION – refusal of protection visa under s 36(1C)(b) of the Migration Act 1958 – convicted of particularly serious crime – armed robbery – whether Applicant is a danger to the Australian community – considered at time of Tribunal’s decision – decision set aside and remitted
Legislation
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Cases
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550
DOB18 v Minister for Home Affairs [2019] FCAFC 63
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1
SLGS v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCAFC 104
WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434; AATA 512
Statement of Reasons
The Applicant seeks review of a 9 January 2025 decision refusing his Protection (Class XA) (subclass 866) visa application (‘Protection Visa’) on the basis that the Applicant had not met subsections 36(1C)(b) and 36(2C)(b)(ii) of the Migration Act 1958 (Cth) (‘the Act’).
The Tribunal is to determine whether the Applicant is not a person whom, on reasonable grounds:
(a)has been convicted by a final judgment of a particularly serious crime; and
(b)is a danger to the Australian community.
CONSIDERATION
The Tribunal has considered the documentary evidence before it comprising the Applicant’s Tender Bundle (Exhibit A1), the Applicant’s Supplementary Tender Bundle (Exhibit A2), the Applicant’s Three Additional Documents (Exhibit A3) and the Applicant’s Signature executed 2 September 2025 (Exhibit A4) , as well as the Respondent’s Tender Bundle (Exhibit R1), the Respondent’s Supplementary Tender Bundle (Exhibit R2) and documents lodged by the Respondent pursuant to section 23 of the Administrative Review Tribunal Act 2024 (Cth) (‘T-Documents’). The Tribunal has also considered the testimony of the Applicant and Ms Alison Mynard, Clinical Psychologist, both of whom were cross-examined and questioned by the Tribunal. The Tribunal has also considered the written and oral submissions of the parties and thanks their representatives for the Agreed Table of Applicant’s Offending.
The 36-year-old South Sudanese national Applicant first arrived in Australia on 23 September 2004 (aged 16) holding a Global Special Humanitarian (subclass 202) visa, he and his family having been sponsored for resettlement by a relative then living in Adelaide. He has lived in Australia since and has never returned to South Sudan.
The Applicant had a difficult and challenging childhood, having fled Sudan (as it then was) with his mother and siblings to Kakuma Refugee Camp in Kenya. His father left his mother when he was a child and his stepfather remained in Sudan but died during the Second Sudanese Civil War.
The Applicant has three Australian citizen sons from a prior relationship and an Australian citizen daughter from a subsequent relationship, now aged about 12. He commenced dating his current girlfriend in about January this year. He has a relatively consistent work history since about 2005 until 2019 when his mother unfortunately became ill and then passed away.
The Applicant also has a history of criminal offending (apart from some lesser driving offences in 2007) since 2010. The parties have assisted the Tribunal by preparing an Offences Table (Exhibit R3). As to his offending prior to the armed robbery on 16 August 2019, (‘the Armed Robbery Offending’), the Tribunal notes the Sentencing Judge for that offending summarised the Applicant’s prior offending as follows:[1]
(a) on 23 July 2010 at the Dandenong Magistrates’ Court you were convicted of one charge of having a certain prescribed concentration of alcohol within three hours of driving a vehicle, two charges of criminal damage, one charge of unlicensed driving and one charge of failing to answer bail, and was sentenced to a community based order for 12 months with a variety of conditions;
(b) on 31 August 2012 at the Dandenong Magistrates’ Court you were convicted of one charge of recklessly causing injury, one charge of unlawful assault, two charges of resisting police and two charges of using threatening words in a public place, and was sentenced to a community based order for a further period of six months with a variety of conditions.
You were also convicted of failing to answer bail, drink-drive in a public place and refuse or fail to state name and address, and discharged in relation to these offences;
(c) on 31 August 2011 at the Dandenong Magistrates Court it was proven that you failed to comply with the Community-Based Order made on 23 July 2010. The order was cancelled, and you were convicted of the original offences and the matter adjourned to 28 February 2012;
(d) on 28 April 2014 at the Dandenong Magistrates’ Court you were found to have breached the community-based order made on 31 August 2011. On that date, the earlier order was confirmed. Also on that date, you were convicted of one charge of theft, one charge of unlawful assault, one charge of contravening a family violence safety notice and one charge of failing to answer bail, and sentenced to an aggregate fine of $1,500, together with an order for compensation to be paid in the sum of $600 (in relation to the theft);
(e) on 8 May 2014 at the Melbourne Magistrates’ Court you were convicted of one charge of intentionally destroying property, one charge of resisting police, one charge of recklessly causing injury, one charge of intentionally damaging property and one charge of dealing with property suspected of being proceeds of crime. You were sentenced to 24 days’ imprisonment, reckoned as your pre-sentence detention, and the matter otherwise adjourned to 8 May 2015, with the condition that you were to attend Foundation House for assessment and review of your support needs, including grief and loss counselling, alcohol abuse and anger management;
(f) on 3 March 2016 at the Sunshine Magistrates’ Court you were charged and convicted of two charges of driving whilst authorisation suspended, three charges of using unregistered motor vehicle on a highway, one charge of having present prescribed concentration of alcohol within three hours of driving a vehicle, one charge of refusing to remain until breath test completed and one charge of exceeding the concentration of alcohol within three hours of driving a vehicle, and convicted of all offences and sentenced to a community correction order for 15 months, commencing on 3 March 2016. Such order also had the added conditions of supervision, treatment and rehabilitation for alcohol abuse and offending behaviour programs and unpaid work for 100 hours during the currency of the order. At that time, your licence was cancelled for four years and such order to be from effectively 3 March 2016.
[1] T34, 268-70 (Sentencing Remarks at [8](a)-(f)).
KEY LEGISLATION
The key legislative provisions are helpfully set out by the Respondent as follows:[2]
[2] The Respondent’s Statement of Facts, Issues and Contentions dated 6 May 2025 (‘RSFIC’) at [14]-[16].
Section 36(1C) provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Section 5M(a) relevantly provides that for the purposes of the application of the Act and the regulations to a particular person, s 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 serious Australian offence’.
Section 5 defines ‘serious Australian offence’ to mean 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.
Relevantly, two elements are within section 36(1C) being the conviction for a ‘particularly serious crime’, and the Applicant must be at the time of this Decision a ‘danger to the Australian community’.
Particularly Serious Crime
The Applicant did not concede that the Armed Robbery conviction was one for a particularly serious crime as defined in the Act, relying upon a decision of the predecessor to this Tribunal.[3]
[3] WKBF and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3728 (‘WKBF’).
The agreed circumstances of the Armed Robbery Offending were summarised by the Sentencing Judge as follows:[4]
[4] T34 [3].
During the plea hearing on 8 May 2020, counsel for the prosecution tendered a document headed 'Summary of Prosecution Opening' dated 7 April 2020 (Exhibit 1). I was informed by your counsel that you agreed with the contents of that document. In particular I note the following:
·You were born on [redacted] and are now 32 years old. You were 30 years old at the time of the offending.
·On 16 August 2019, at 1.35 am, you attended a Coles Express at 267 Main Road West, St Albans. At that time, the victim, [redacted], was working alone and there was another customer in the store.
·The front door was locked and [the victim] unlocked it and allowed you to enter the store, after which you waited in the store until another customer left, after which you approached the counter where [the victim] was working.
·You requested a packet of cigarettes and [the victim] obtained the cigarettes and scanned them, after which you then removed your black backpack from your back and placed it on the counter area, which caused a heavy thud. You then opened the backpack and [the victim] saw a blue pipe object protruding from the backpack, which she thought was a bar with which you were going to bash her.
·You removed the blue pipe object from your backpack and held it in both hands, which caused it to discharge a powerful shot into the rear-counter area, just missing [the victim].
·[The victim] notes that it was a very loud noise which affected both her ears, causing everything to go quiet, and there was a bang. She then heard you ask for all the money that was available.
·[The victim] was then in fear of her safety and she pressed the panic button on her necklace and walked to the rear staff toilet area. She intended calling 000 to alert police, but then, sorry, though she had left her phone on the counter, causing her to return to the counter to retrieve her mobile phone and then quickly return to the staff toilet area.
·She locked herself in there and called 000 while you were on the outside of the staff service area and behaving in a violent and an aggressive manner. You reached under the wire security barrier from the far side of the counter and attempted to open the cash register but was not successful. You then forced yourself under the security wire barrier and into the staff service area, where you went through the register and cupboards, removing several packets of cigarettes from the cupboards and put them into your backpack.
·You then went back to the locked staff toilet door and banged on it, demanding that [the victim] come out and give you some money. You were told that the police were on their way, but you continued to threaten [the victim] before you returned to the front counter area.
·You then returned to the front entrance door, where you observed two men. You then returned to the rear counter area, again threatening [the victim], and ultimately forced open the door to the staff toilet area and ripped her phone from her hands. [The victim’s] key ring was attached to her phone.
·She thought you were going to hit her, as you raised your hands at her. She requested her phone back but you said “no” and then said, “Open the till; give me all money”.
·You ushered [the victim] back to the till and told her to hurry up. You opened the till and you said, 'Give me the money'.
·[The victim] lifted the till and gave it to you, then you removed all cash from the till and placed it in your backpack.
·You then asked her to open the back door, which she did, and again she asked you for her phone and car keys and you said no, after which you exited the store from the staff-only rear entrance.
·Police attended the scene and obtained [the victim] mobile phone number and ultimately identified where the phone had been taken: [the Applicant’s address], where you resided.
·When police attended the Coles Express where your offending took place, it was also observed that one of the computers at the store was damaged and had a broken screen.
·On 16 August 2019 at 9.34 am, you were arrested by the Special Operations Group members and transported to Melbourne West police complex, where you were interviewed in relation to the offending. You remained mute during the interview.
·A search warrant was executed at the premises of [the Applicant’s address] and there was found, among other things, 16 packets of cigarettes, $135.10 in cash, a blue-coloured metal pipe with a spent cartridge inside and a Samsung black mobile phone with a key ring attachment.
Within the agreed facts, which form the basis of the Armed Robbery Offending which the Applicant plead guilty to on 8 November 2019, the Respondent highlights and the Tribunal accepts that the Applicant’s firing of the pipe gun ‘just missing’ the robbery victim produced a very loud noise affecting her ears/hearing and at a later point the Applicant ripped the victim’s phone from her hands. The Sentencing Judge confirmed from the Victim Impact Statement that the victim ‘… had a sore lower back and painful right ear’.[5]
[5] Ibid [9].
The offence of Armed Robbery to which the Applicant plead guilty involves the element of robbery where one ‘steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person in fear that he or another person will be then and there subjected to force’, pursuant to section 75 of the Crimes Act 1958 (Vic) together with committing ‘...any robbery and at the time has with him a firearm, imitation firearm...’ pursuant to section 75A of the Crimes Act 1958 (Vic). All the requisite elements of the offence of Armed Robbery including ‘use of force’ were made out on the facts before the Sentencing Judge and the Applicant was accordingly sentenced to 56 months imprisonment.
The Tribunal is satisfied based upon the evidence before it, including the agreed facts before the Sentencing Judge, that the Applicant did commit a crime of violence against the victim (including use of actual force), hence has committed a serious Australian offence and thus committed a particularly serious crime, pursuant to section 36(1C) of the Act, and was convicted accordingly. The interesting approach in WKBF was obviously peculiar to the discrete factual foundation there and is not applicable to the established facts before this Tribunal, as considered above.
Danger to the Australian Community
The element of ‘danger to the Australian community’ has been the subject of some analysis by the Federal Court which is helpfully summarised by the Respondent (the Applicant essentially not taking issue with the general guiding principles as set out below):[6]
[6] RSFIC, 28-33.
28. In DOB18 v Minister for Home Affairs [2019] FCAFC 63, Logan J said at [72]:
The meaning to afford “danger” in s 36(1C)(b) of the Act must commence with the text itself, with context and general purpose and policy being relevant to the determination of the meaning to give to the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27. The word “danger” can mean “risk” but also carries with it the meaning of “the condition of being exposed to the chance of evil; risk, peril” (Oxford Dictionary). As is observed in respect of the word, “danger” in Garner’s Modern English Usage, “Idiomatically speaking, one runs a risk, not a danger.” Yet, as a matter of ordinary experience of English idiom, the word, “danger” on a public warning sign conveys a very different and heighted sense of potential peril than would the word, “risk”. Indeed, for that reason, and again as a matter of ordinary experience, it is rare, if at all, that one encounters a warning sign with the word, “risk” in prominence. “Danger” and “risk” are not, in English usage, in my view, exact synonyms. When regard is had both to the text and to the nature and purpose of the provision, it is inherently unlikely that, the word, “danger”, as found in the exception, refers to a risk that is discernible but which is trivial, nothing more than a bare possibility.
29. In DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 (DMQ20) 'danger' was found to be a term which should be understood to carry its ordinary meaning (at [106]). Thomas and Sanden JJ in DMQ20 further found that at [107]:
Conceptually (at least for present purposes), “danger” is a function of probability and consequence. A person will pose a “danger” insofar as there is a sufficient likelihood that he or she will engage in conduct that visits upon others a sufficient degree of harm. Both of those constituent concepts may be measured along spectra. Future conduct might be inconceivable, highly improbable, likely or certain (or any degree in between). The harm that it might visit might range from minor to severe. At issue presently is what combinations of probability and consequence should suffice to qualify as “danger” in the sense contemplated by s 36(1C)(b) of the Act (and its analogue in Art 33(2) of the Refugees Convention).
30. Their Honours further considered that 'danger' implies a prospect of physical or psychological injury and there is no relevant distinction between whether a person is a danger to other and a person who might be a danger (DMQ20 at [110] - [111]).
31. In DMQ20 at [116], their Honours considered:
In its human form, then, 'danger' presupposes that there should be something about a person's character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person's prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.
32. In SLGS v Minister for Immigration, Migrant Services and Multicultural Affairs [2023] FCAFC 104, Jackson J discussed the meaning of danger in DMQ20 and considered Thomas and Snaden JJ found it was consideration of probability and consequences with the higher the probability of an event, the less severe its consequences might need to be for the prospect of its occurrence to qualify as a 'danger' and vice versa (at [65]).
33. In WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434; AATA 512 (WKCG), the Hon Deputy President Tamberlin QC observed guidance as to the matters which may be relevant to the assessment of 'danger to the Australian community', being:
(a)The seriousness and nature of the crimes committed;
(b)The length of the sentence imposed;
(c)Any mitigating or aggravating circumstances;
(d)The nature of the prior crimes, together with the period over which they took place (if relevant);
(e)The risk of re-offending and recidivism.
The Applicant adds the following to the analysis:[7]
More recently Bromberg J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 agreeing with Logan J observed as follows;
Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).
[…]
That a stringent level or standard is required by s 36(1C) in relation to the prerequisites that must exist to engage its operation is explained by the nature of the balancing exercise by which those standards have been formed. A host State’s tolerance of the risk of harm is understandably higher in relation to people who are in need of protection and who, in the absence of being provided protection, may face significant harm. [emphasis added]
[7] The Applicant’s Statement of Facts, Issues and Contentions lodged 9 April 2025 [52].
In determining risk of danger, the Tribunal notes that on the first day of this hearing in May 2025 the Applicant had extreme difficulties in giving his testimony and as a consequence the hearing was adjourned to obtain a psychological assessment as to his fitness to give testimony and participate generally in the hearing. That assessment was provided by the expert witness Ms Alison Mynard, Clinical Psychologist (assisting the Tribunal on a pro bono basis), dated 7 July 2025 (‘the Assessment’). In summary, Ms Mynard stated that the Applicant’s presentation at the Tribunal is to be “understood in the context of his neurocognitive limitations, trauma history, and psychosocial distress” however he was “not psychiatrically unfit to plead”. The Respondent did not take issue with the content of this report.
An additional aspect to the Applicant’s testimony (essentially not challenged by the Respondent) was that it was given whilst he wore reflective sunglasses, for medical reasons, see Exhibit A3:
ITEM CODE DESCRIPTION AMOUNT 110 Frame: 33134239 Aluminium Frame $109.00 212 Lenses: Single Vision Distance $90.00 662 Lens Option: Anti-reflective coating $56.00 644 Lens Option: Photochromic Filter $80.00 110 Frame: 32859836 SP5042-1 $0.00 212 Lenses: Single Vision Distance $0.00 662 Lens Option: Anti-reflective coating $56.00 Invoice Total $391.00
The Tribunal has accordingly considered the Applicant’s testimony in the absence of eye contact and within the limitations identified by Ms Mynard. Ms Weir’s cross-examination of the Applicant was thorough and fair, as was her cross-examination of Ms Mynard. The Respondent took issue with the credit of the Applicant. The Applicant was not the best witness and had difficulties with memory and some details, but such must be considered in the context of his background and the content of Ms Mynard’s expert Assessment. In light of the Assessment; although there may be some tensions as between aspects of the Applicant’s testimony, in the circumstances, the Tribunal is of the view that such testimony was relatively reliable. This is particularly the case in respect of inconsistencies in the Applicant’s denials in response to a significant number of unilateral untested incident reports of some alleged misbehaviour by him in both prison and then detention.[8] Importantly, although the Tribunal notes there is some pattern of alleged behaviour within these reports, as properly submitted by the Respondent, the fact remains that no charges were ever brought against the Applicant in respect of any of such incidents. The Tribunal hence gives minimal weight to the untested allegations within the incident reports.
[8] T31, 223-54; T46, 344-64.
The Applicant submits that he is not a danger to the Australian community because the index offending occurred in the particular context of acute grief and alcohol (and illicit substance) abuse following the death of his mother. Both the Applicant and Ms Mynard’s expert evidence are consistent in satisfying the Tribunal that the Applicant did have a very difficult time processing and accepting the unfortunate death of his mother. Accepting that the Applicant has only been free in the community since January 2025 it remains noteworthy that the Applicant has not been charged or convicted of any offending since 2019.
The Tribunal accepts that the index offence was serious, consistent with its consideration above and that the sentence imposed of 56 months was not an insubstantial one. The Sentencing Judge observed the offending was in the context of the Applicant’s perceived obligation to pay for his mother’s funeral, that he had entered an early plea of guilty and that the Applicant at the time of sentencing in 2020 had a degree of remorse yet demonstrated limited insight. Despite this, Mr Guy Coffey, Clinical Psychologist, provided a report to the Sentencing Judge dated 7 May 2020, which stated that if the Applicant undertook a specialist treatment program for alcohol abuse, were to ‘abstain from alcohol ...for at least a year’ and participated in on going counselling then ‘the probability of him perpetrating further violent offending more generally, is reasonably low’.[9] In 2020 the Sentencing Judge thought the Applicant’s prospects of rehabilitation were ‘guarded’. The Tribunal notes that Mr Coffey had also contemplated in 2020 that the Applicant obtain psychiatric assistance (and in fact has not received such treatment), but accepts that that may have been stated in a ‘general way’ as suggested by Ms Mynard during cross examination. Ms Mynard’s evidence suggested further that as the Applicant moves away from custodial settings it is likely that he will seek counselling given the intrinsic benefit of it, and the Tribunal notes he is currently participating in ongoing counselling.
[9] T34, 283.
The Tribunal notes that the Applicant, prior to 2019, had a criminal history of about 9 years, in addition to some driving related convictions in 2007. However, despite its length the nature of the offending was limited to convictions dealt with in the Magistrates’ Courts and all but one of such convictions resulted in fines, community-based orders, or community work. The Applicant’s only other custodial sentence was for 24 days in 2014, reckoned as time served on remand.
Five years on from the Sentencing Judge’s observations, Ms Mynard has provided solid expert evidence both through her testimony and consistently in her Report and Assessment. In her expert opinion, the Applicant now has insight into his past criminal offending and the factors which contributed to that offending. Part of this is the Applicant’s gained insight into his past response in grieving for his late mother and his demonstratable altered grief response.[10]
[10] See Exhibit A1, Applicant’s Statement at [4], [8] and [42]-[43].
Despite a ‘wrinkle’ in his testimony on day one of the hearing, in balancing his evidence overall, it is apparent that the Applicant very rarely drinks alcohol these days and on the few occasions where he has, this year, such drinking has been limited to one or two beers. The Applicant recognises the importance of physical fitness to his mental health and actively pursues such through training at the gym and is making real attempts to get his life back on track. He has lived at the same place and has been in a relationship since January 2025 and subsequent to day one of the hearing (in May 2025) he has since in about July 2025 obtained and retained a part-time job (but is essentially working a 40-hour week) as a forklift driver. He underscored in his testimony the importance of being alcohol free for work because of the serious safety requirements associated with his job. Consist with this is the Applicant’s active engagement with drug and alcohol counselling and participation in SMART Recovery sessions in detention and his readiness to and actual engagement in further professional drug and alcohol and other counselling and support through Foundation House – The Victorian Foundation for Survivors of Torture, which he was continuing with as at the further hearing of this matter in September 2025. He has the familial support of his brother and an ‘elder uncle’ whom he has daily contact with.
Another motivator evident from the Applicant’s testimony is his desire to re-establish a relationship with his daughter (who currently lives in Perth) at some time in the future.[11] Overall, the Tribunal is satisfied that the Applicant has a genuine desire to rebuild his life through stable accommodation and employment, and he is now on the path to achieving that. Perhaps more importantly is the expert evidence of Ms Mynard in respect of this. Ms Mynard concluded, regarding risk/danger of re-offending that:[12]
[the Applicant’s] current psychological functioning suggests a low risk of future violence. This conclusion is supported by his emotional stability post-release, his consistent engagement with therapeutic supports (including ongoing counselling through Foundation House), his openness to treatment, his demonstrated sobriety, and the presence of protective factors such as family connection, community engagement (through church attendance), and a commitment to personal betterment. [The Applicant] has shown considerable insight into his offending behaviour, expresses clear remorse, and acknowledges the psychological and social factors that contributed to past actions.
While [the Applicant] has a history of offending, the context appears to have been closely tied to substance intoxication, grief following the loss of his mother, and psychosocial instability. His expressions of remorse and insight regarding his actions, particularly in reference to his offending, appeared to be sincere and reflective. He acknowledged the impact of his behaviour on the victim and expressed ongoing distress over the harm caused. Importantly, he stated his desire to "do it the right way" and is motivated to regain access to his daughter and re-establish a stable life.
As Ms Mynard stated, since release the Applicant:[13]
… reports efforts to rebuild his life through maintaining stable accommodation, remaining abstinent from alcohol and drugs, engaging in counselling, and taking personal responsibility for his wellbeing. He also highlighted a strong preference for self-sufficiency, including receiving Job Seeker payments and maintaining financial independence. His statements suggest that he has gained a clearer understanding of the impact of his offending on others and is motivated to avoid future risk through continued rehabilitation and support.
[11] See Exhibit A2, Report of Ms Mynard at [65].
[12] Ibid [170]-[171].
[13] Ibid [160].
Ms Mynard’s contemporary expert opinion of low risk withstood fair but firm and thorough cross examination and questioning by the Tribunal. On the evidence before it the Tribunal is satisfied that there is a low risk of the Applicant re-offending and being of any further danger to the Australian community. He is gradually building a life for himself in Australia and appears to now have insight that he has much to lose, in the unlikely event that he should re-offend.
DECISION
By reason of the considerations discussed above, the Tribunal sets aside the reviewable decision and remits the matter to the Minister for reconsideration with a direction that the Applicant satisfies section 36(1C) of the Act.
1. I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member A. Maryniak KC
............................[SGD].................................
Associate
Dated: 8 October 2025
Dates of hearing: 15 May and 2 to 4 September 2025
Counsel for the Applicant: Ms Melinda Jackson
Solicitors for the Applicant: Refugee Legal Advocate for the Respondent: Ms Tegan Weir Solicitors for the Respondent: HWL Ebsworth Lawyers
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