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

NZYQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 378 (4 March 2022)
Division:GENERAL DIVISION
File Number(s): 2020/4742
Re:NZYQ
APPLICANT

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

DECISION
Tribunal:Deputy President J W Constance
Date:4 March 2022
Place:Sydney

The decision of a delegate of the Respondent made on 30 July 2020 to refuse the Applicant a Safe Haven Enterprise visa is affirmed.
..................................[SGD]...................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – protection visa – refusal to grant protection visa – section 36(1C)(b) of the Migration Act 1958 (Cth) – applicant convicted by a final judgment of a particularly serious crime – sexual intercourse with a child – whether the applicant is a danger to the Australian community – decision under review affirmed
LEGISLATION
Crimes Act 1900 (NSW), s 66C(1)
Migration Act 1958 (Cth), ss 36, 36(1A), 36(1C)(b), 65, 500(1)(c)(i)
CASES
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1967
LQKD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591
MHCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4259
WKCG and Minister for Immigration and Citizenship [2009] AATA 512.
SECONDARY MATERIALS
Convention Relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) – arts 33, 33(2)
REASONS FOR DECISION
Deputy President J W Constance
4 March 2022
A: INTRODUCTION

The Applicant was born outside Australia in about 1996. He is stateless.
In 2012 the Applicant arrived in Australia as an unauthorised maritime arrival. As a result, he was held in immigration detention until 2013, when he was granted a bridging visa which allowed him to live in the Australian community while applying for a protection visa.
In June 2017 the Applicant applied for a Safe Haven Enterprise visa (protection visa) under section 65 of the Migration Act 1958 (Cth) (Act). On 30 July 2020 a delegate of the Minister decided to refuse the application on the ground that the Applicant had been convicted of a particularly serious crime and was a danger to the community. I will refer to this decision as the reviewable decision. The Applicant has applied to the Tribunal to review the reviewable decision.
It is not in dispute that in August 2016, in a final judgment of the District Court of New South Wales, the Applicant was convicted of the offence of “sexual intercourse with a person aged between 10 and 14 years”.[1] The Applicant accepts that this offence is a “particularly serious crime” under the Act.
[1] Exhibit R1 at 54; Crimes Act 1900 (NSW) s.66C(1).
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
The Applicant’s evidence
The Applicant provided a statement dated 15 February 2021[2] and gave evidence at the hearing.
[2] Exhibit A1 at 2.
The Applicant has never been issued with a birth certificate and is unaware of his exact date of birth.
Following his arrival in Australia, the Applicant was held in immigration detention for 11 months. When he was released, he lived with his brother in a group house in Sydney and joined in events organised by his ethnic community. He studied English, attending classes daily.
In January 2015 the Applicant sexually assaulted a boy who was known to him. The offence took place in a house where he was visiting a friend. In his statement the Applicant said, in part:
It was difficult for me to remember exactly what happened. When I arrived at the house, my friend was sleeping. I knew the boy, because he and his father used to live in our house. When I saw the boy, what came to my mind was, I used to be like that boy. I saw in him, me.
I accept the thing that I did. I didn’t want to accept it before. I needed to change at that time. I only thought about myself.
I feel really guilty. I shouldn’t have done that thing.
If I could tell the boy now, I would say, I am extremely sorry for what happened. I can only apologise to him. I am sure that the boy was traumatised. I have been through that same position before. It is a really bad thing to happen to any human being.
I am sorry for what I did. What I did, I understand it was the horribly wrong thing to do. I have changed a lot since that time. It will never happen again.[3]
[3] Exhibit A1 at 3.
While he was in prison, the Applicant undertook a self-improvement program which included how to exercise self-control. He also studied English and took a computer course. He gained employment in the kitchen.
The Applicant was on a waiting list for the sex offender program for 2-3 years. He was not offered that program during his imprisonment. Immediately upon his release he was transferred to immigration detention where he has received some counselling.
In relation to his psychological assessment at the Villawood Detention Centre, the Applicant stated:
I spoke to a psychologist while I was in Villawood Detention Centre. The report the psychologist wrote has been explained to me. I am surprised by some of the things that the report records me saying. The way I think about things is different now.
I remember being nervous speaking to the psychologist. There were two of them there.
There was also an interpreter. I felt very uncomfortable that the interpreter was there. [My] community is small. Most [of my] people live in [redacted], and I might see him in the community in the future. I felt so ashamed talking about what happened. I couldn’t speak English properly, but I also didn’t want him there. I asked him to leave during points of the interview and tried to speak in English. Maybe in my own language I could have explained better.
My English is better now than it was at that time. I have been talking to lots of people in English. I am able to talk without an interpreter now.
I don’t think I explained to them how I felt when I was a little kid. I didn’t think it was necessary to explain to them. I didn’t know if they wanted to hear about that. It was really hard for me talk about.
I am told the report records me saying “he is just a little kid, he doesn’t understand what he is doing”. I don’t think that I said that. I accept that if it is written, then maybe in the past I did, but if I did I didn’t know what I was saying. I couldn’t say anything like that now. When I was a little kid, it was a horrible thing that happened to me. I felt so bad. I don’t want anything like that to happen to anyone else. I am sure the boy felt the same. Just as I have felt, I am sure he would be feeling bad. When I was a kid, I couldn’t do anything about it. I was not able to tell anyone how I was depressed, having bad time. That boy would be having the same feeling now.
I am told the report says I said I had thought the behaviour was ““normal . . . what happened to me, I adopted that behaviour,” and that the victim would have been exposed to it in the refugee camp. I don’t think like that now. What happened to me as a kid really impacted me. I think there is connection between what happened to me and what I did, but still I should have understood not to do it. I should have known it was a bad thing to do. I can’t blame him at all.
I don’t remember whether I knew what I did was wrong at time. It was 6 years ago. I try not to think about it because I have flashbacks – to my own abuse, and also to what I did. Now I am taking responsibility for what is wrong and right.
There is nothing to blame the victim, all the blame is on me. He was a little kid. I take full responsibility for what happened. It was all my fault.
What I did was a terrible thing to do. I understand that it is all my fault. All I can say now is I’m sorry.[4]
[4] Exhibit A1 at 3-4.
The Applicant has been assisted by weekly counselling sessions since November 2020. He wishes to continue with this. He says the seven years he has spent in prison and detention have taught him that he would never again risk being returned to that situation as he does not want to waste his life in this way.
If he is released the Applicant plans to live in Sydney with his brother who has offered to assist him in gaining employment. Should the Applicant gain employment he intends to assist financially members of his family living in a refugee camp overseas. He would again join his local ethnic community.
At the hearing, the Applicant said that he wanted to participate in a sex offender program to better understand his feelings. He did not need anyone to encourage him to do this. When he was interviewed by Ms Youssef, he was very shy as in his community it is not usual to discuss sexual matters.
If it is determined that it is inappropriate that he live with his brother by reason of the proximity of places where children gather, the Applicant will move to alternative accommodation.
The Applicant is no longer on parole.
Pre-sentence report of Dr Chew, Forensic Psychiatrist
Dr Chew assessed the Applicant in March 2016 at the request of the Applicant’s Solicitors. He provided a report dated 1 March 2016[5] for submission to the Court.
[5] Exhibit A1 at 49.
Dr Chew relevantly reported:
·the Applicant described significant sexual and other physical abuse as a child, to the point of fearing for his life;
·the Applicant told him that “there was absolutely no planning or thought that went into the offending behaviour”;[6]
·in his opinion, the Applicant suffered from Major Depressive Disorder and Post Traumatic Stress Disorder for which he required treatment;
·the Applicant required ongoing work around his sexual offending behaviour;
·a very good prognostic factor included no prior criminal history.
[6] Exhibit A1 at 55.
Pre-sentence report of Ms Eastman, Community Corrections Officer
Ms Eastman provided a report dated 9 March 2016 to the Court.[7]
[7] Exhibit A1 at 59.
Under the heading Attitude to offending, Ms Eastman reported:
In relation to the offences now before the Court, [the Applicant] disputed elements of the police facts, specifically the claim that he penetrated the child and that he offered him money. [The Applicant] initially justified his actions by stating that sexual molestation occurred regularly in his country and was “not a big issue”. He claimed that he did not realise that it was illegal in Australia and when challenged about this belief maintained his stance that his behaviour was acceptable as it had happened to him. During conversation he also stated that he did not have the intention to have sex with the child it just “accidently happened”.
Nevertheless he went on to convey that he “regrets” his actions and “made a mistake” and although it was not a big issue in his country he realises that it is in Australia and is now paying the price.
When discussing the impact his actions may have had on the victim [the Applicant] stated that the [sic] there would be no repercussions or ongoing issues for the child, as the child had consented to this sexual encounter and he claimed that this was not the first time the victim had engaged in the kind of sexual act.[8]
[8] Exhibit A1 at 61.
Further, according to the Level of Service Inventory – Revised actuarial risk/needs assessment tool, the Applicant was assessed as a medium-high risk of re-offending. Ms Eastman recommended supervision of the Applicant to include psychological assessment and ongoing treatment for sex offending.
Judgment and Sentencing in 2016[9]
[9] Exhibit R1 at 55.
In his judgment the Sentencing Judge recorded that the Applicant gave evidence that at the time of the assault he did not know that what he was doing was wrong. Had he thought he was wrong at the time he would have apologised to the victim’s father.
The Judge did not accept the Applicant’s version of the events and preferred the version provided in the Agreed Facts. His Honour concluded that the Applicant was not being completely truthful and was trying to minimise his participation in the offence.
When considering the sentence to be imposed, His Honour said that “the offence was opportunistic and did not involve any planning, coercion or grooming of the victim.”[10] He took into account that the Applicant had shown little insight into his offending behaviour and had been assessed as being a medium to high risk of re-offending. His Honour was not satisfied that the Applicant had accepted responsibility for his actions although he was satisfied that the Applicant had a better understanding of the laws of Australia than he did when the offence was committed.
[10] Exhibit R1 at 61.
The Applicant was sentenced to five years imprisonment with a non-parole period of three years and four months.
Pre-Release Report dated 31 January 2018[11]
[11] Exhibit R1 at 231.
Prior to the Applicant's release from prison on parole, Ms Carroll, Community Corrections Officer, reported in part:
[The Applicant] presented as a polite and subdued individual who has obvious cultural barriers present. Although he reports some level of remorse for his offending, he appears to have limited insight into the same and normalises sexual offending due to his belief of lifestyle choices made in his birth country.
It should be noted that his conduct and progression throughout his incarceration seems to have been mainly satisfactory. However, it is fact that he is currently an untreated sex offender with a Medium/High Static 99 risk rating.[12]
[12] Exhibit R1 at 234-235.
In the same report, Mr Neville, Unit Leader of Community Corrections, stated:
[The Applicant] has demonstrated appropriate behaviour and conduct throughout his incarceration. He has continued to maintain employment with positive praise. Of concern is the outstanding matter of addressing his index offending via satisfactory participation and completion of the appropriate Sex Offender Programs. Despite his pending removal from Australia via Immigration and Border Force, Ms Carroll’s recommendation that the inmate address his offending behaviours prior to release is supported.[13]
[13] Exhibit R1 at 235.
Evidence of Ms Chamarette, Clinical Psychologist
At the request of his Solicitors, Ms Chamarette assessed the Applicant during six sessions in late 2020 and early 2021. She provided a report dated 12 February 2021[14] and gave evidence at the hearing.
[14] Exhibit A1 at 10.
The Applicant commenced trauma counselling in 2018 but was unable to continue after the first session by reason of his being transferred between immigration detention centres. Counselling has resumed since November 2021 and an eight-session program has been completed.
The Applicant has been unable to gain entry to a sex offender program, either in prison or in immigration detention.
Ms Chamarette reported, in part:
…….. the most probable psychological explanation for [the Applicant’s] offending lies with his own childhood experiences of sexual abuse and trauma whose impact was previously unrecognised by him. While not all victims of child sexual abuse become offenders, an extremely high proportion of men (92% according to a study by Briggs et al 1994) who offend against children have been victims. Those individuals that are most at risk of offending are those who fail to remember or realise the significance of their early childhood experiences of abuse or who view it as ‘normal’.
His ongoing battle with depression and PTSD while going through imprisonment and then detention instead of being released into the community and his lack of treatment has hindered [the Applicant’s] understanding of his own offending behavior or of appreciating the seriousness and the impact on his victim. Despite this he has always felt deeply ashamed and guilty about his actions.
Many statements made by [the Applicant] at those early interviews referred to in previous psychological reports reinforce that he was similar to most untreated sexual offenders who are unaware of the underlying problems and tend to deny, minimize or justify their actions due to shame and guilt.
At the present time [the Applicant] has certainly advanced in his understanding of his offending beyond the tendency to make excuses for it, towards taking responsibility for his actions and expressing sadness and remorse for his behavior and its impact on his victim. He himself comments that he has begun to understand his own and his victims’ situation very differently ……situation very differently.[15]
[15] Exhibit A1 at 14.
When asked, as part of her report, to describe the nature and level of risk of the Applicant re-offending and the factors contributing to that risk, Ms Chamarette responded, in part:
All [the Applicant’s] pre-sentence reports have recommended treatment and regard him as moderate to high risk of re-offending. These estimates are based on actuarial measures which are at best statistical predictions of categories and should not be applied to individuals without taking other factors into consideration. Additionally they are based on static variables which are unchangeable and historical. To quite from the Static 99 Manual:-
“The recidivism estimates provided by the Static-99 are group estimates based upon reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender’s risk may be higher or lower than the probabilities estimated in the STATIC-99 depending on other risk factors not measured by this instrument.”
The dynamic factors which in my view reduce [the Applicant’s] level of risk are:-
·his insight into the unacceptable nature of his behaviour and remorse for it,
·his motivation to change and willingness to commit to psychological treatment,
·his therapeutic response as demonstrated over recent months.
Two other factors which give [the Applicant] a better prognosis are that it was his first offence and the absence of prior antisocial or criminal behaviour. As Dr Chew stated in his March 2016 report “[The Applicant] requires ongoing work around his sexual offending behaviour. A very good prognostic factor includes no prior criminal history of any kind at all.”
I would argue that [the Applicant’s] prognosis has always been better than measured using the actuarial Risk tests due to cultural and situational factors as well as the possibility that he may have been 17 rather 19 years of age when the offence happened. However even leaving those scores in place, his present psychological adjustment and response to the minimal treatment he has received to date, [the Applicant] represents a minimum risk or danger to the Australian community. In fact it is likely that if he receives a re-instatement of his protection visa he has the potential of becoming a valuable Australian citizen.[16]
[16] Exhibit A1 at 14-15.
Ms Chamarette is of the opinion that it is important for the Applicant to have continuing access to appropriate trauma counselling and to sex offender treatment. The latter would address his denials, minimisations and justifications referred to by other practitioners.
When she gave evidence, Ms Chamarette referred to the following factors which would reduce the likelihood of the Applicant re-offending:
·his remorse;
·his insight into the nature of the offence;
·his willingness to engage in the rehabilitation process;
·the presence of family support;
·the stability which would arise from housing and employment arranged by his brother;
·his young age.
These factors are to be considered along with the static factors referred to in STATIC-99R.
Evidence of Ms Youssef, Principal Forensic Psychologist
Ms Youssef assessed the Applicant on 9 February 2021 at the request of the Solicitors for the Minister. She provided reports dated 24 February 2021[17] and 13 July 2021[18] and gave evidence at the hearing. Ms Youssef also provided a report dated 4 September 2019[19] which she had prepared for the representatives of the Applicant who were acting for him at the time he applied for a protection visa.
[17] Exhibit R4.
[18] Exhibit R5.
[19] Exhibit R1 at 255.
Assessment on 31 July 2019

In her 4 September 2019 report, Ms Youssef reported that when assessed by her in July 2019, the Applicant told her that he was unsure why he committed the offence, although he assumed it was normal behaviour, being what happened to him as a child. He did not know it was illegal in Australia. He admitted he had offered the victim money. Ms Youssef reported that the Applicant “demonstrated little insight into the antecedents of his offending behaviour, its effects on the victim and was unable to consider any risk management strategies to ameliorate his risk of reoffending.”[20]
[20] Exhibit R1 at 262.
Ms Youssef administered STATIC-99 to the Applicant. He was placed in the “Above Average” risk category relative to other male sex offenders. However, she observed that the test does is not sensitive to changes in an offender’s circumstances. A more comprehensive evaluation of the Applicant’s level of risk at the time was obtained by administering the Risk of Sexual Violence Protocol.
Based on the information collected by Ms Youssef, information provided to her, the interview, and the risk assessments, she concluded that the “Above Average” risk rating for the Applicant accurately reflected his risk of reoffending.[21] Ms Youssef recommended that the Applicant participate in sexual offending behaviour intervention.
[21] Exhibit R1 at 269.
Assessment on 9 February 2021
The Applicant was referred to Ms Youssef for an updated risk assessment by the Solicitor for the Minister. Ms Youssef provided the report dated 24 February 2021.
At the time of this assessment the Applicant had been participating in trauma counselling for the past 4-6 months. The sessions focussed on emotional regulation.
Ms Youssef reported, in part:
[The Applicant] reported that he would also like to continue engaging in trauma counselling in addition to addressing his sexual offending behaviour, which he has not yet addressed. He said that he is prepared to fund these sessions himself, provided he is working. When asked what was different now, compared to 2019, [the Applicant] responded “I had an epiphany, [I] didn’t have a plan [previously], I’m a changed man, I didn’t have the help [previously], my lawyer was not helpful, [but] I’ve got that now, [she] help[s] me change my point of view.”[22]
[22] Exhibit R4 at 11-12.
Ms Youssef used the same assessment tools as she had in 2019. She concluded that the Applicant’s risk rating remained at “Above Average”.[23]She reported, in part:
As reflected above, [the Applicant’s] actuarial risk category remains unchanged which is not surprising given it measures static variables. In relation to [the Applicant’s] dynamic risk factors, there is some improvement in the ‘Psychological Adjustment’ domain of the RSVP such as less minimisation of the offending behaviour, greater accountability, and improved coping. There is the addition of a dynamic risk factor in terms of substance use, given [the Applicant’s] recent admission that he consumed alcohol before the commission of the offence. [The Applicant’s] protective factors have mostly remained unchanged given his continued detention. The risk formulation (with the addition of alcohol use) and case formulation both remain unchanged. The most notable difference is that [the Applicant] has since sought counselling for his trauma, and his response appears to have been positive thus far. He is yet to receive any intervention for sexual offending behaviour. Therefore, overall given [the Applicant] has remained in detention since the completion of the 2019 Report, his circumstances have largely remained unchanged, therefore the professional views set out in that report as related to his sexual recidivism risk largely remain the same.[24]
[23] Exhibit R4 at 19.
[24] Exhibit R4 at 20.
The recommendation for participation in sexual offending behaviour intervention remained unchanged. Ms Youssef recommended an individual moderate intensity program in view of the level of risk.
Report of 13 July 2021
In this report Ms Youssef responded to the report prepared by Ms Chamarette. In particular, Ms Youssef did not agree that the Applicant’s risk of re-offending was low or minimum.
Evidence of Ms Howell, Psychologist
Ms Howell is a Psychologist in private practice in Sydney. She has been in clinical practice since 1990 and is experienced in working with male sex offenders.
Should the Applicant be able to return to Sydney, Ms Howell would be willing to work with him. Treatment of offenders usually continues for a period between six and twelve months and involves weekly consultations of 60-90 minutes each.
Evidence of Mr B, the Applicant’s brother
Mr B is the older brother of the Applicant. He provided a statement dated 15 February 2021[25] and gave evidence at the hearing.
[25] Exhibit A1 at 7.
Mr B has lived in Australia since 2010 and is a permanent resident.
Prior to his imprisonment, the Applicant lived with Mr B in shared accommodation in Sydney. Should the Applicant be free to do so he can resume living in the same shared accommodation. If Mr B moves from that accommodation the Applicant can move also and continue to live with him.
Mr B works as a Supervisor in a factory and believes he will be able to assist the Applicant to find employment at that factory. He is prepared to assist the Applicant financially until he gains employment.
Mr B does not believe the Applicant committed the offence of which he has been convicted. He is sure that his brother will follow the law in future.
C: THE RELEVANT LEGISLATION
Subsection 36 of the Act provides, in part:
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
……
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
The power of the Tribunal to review the decision to refuse to grant the protection visa, pursuant to section 65 and relying on subsection 36(1C), is provided by section 500(1)(c)(i) of the Act.
E: THE ISSUE FOR DETERMINATION
Only the following issue arises for determination in this application.
Is the Applicant a danger to the Australian community, within the meaning of paragraph (b) of subsection (1C) of the Act?
To answer this question in the affirmative I must be satisfied on reasonable grounds.
It is not in dispute that the Applicant has been convicted by a final judgment of a particularly serious crime.
F: REASONING
Applicable Principles
Section 36(1C) was enacted to give effect to Article 33(2) of the Convention Relating to the Status of Refugees (the Convention) which provides that a refugee may not claim the benefit of a State’s non-refoulement obligations if there are reasonable grounds for regarding the person as a danger to the security of the relevant country or that, having been convicted of a particularly serious crime, that person “constitutes a danger to the community” of the relevant country. Under the Act, it is necessary for a person to have been convicted of a “particularly serious crime”. However, the assessment of whether the person is a “danger to the community” is not based solely on conduct which constitutes the “particularly serious crime” and, further, there is a qualification of a satisfaction of “reasonable grounds” to that consideration.
Article 33(2) was considered by the Tribunal in WKCG and Minister for Immigration and Citizenship.[26]Tamberlin J set out the following legal principles relevant to the application before me. This is not an exhaustive list – all relevant contentions must be considered.[27]
[26] [2009] AATA 512 (“WKCG”).
[27] LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591.
(1) “The question whether a person constitutes a danger to the Australian community is one of fact and degree. ………. The words used are plain and simple English. In deciding the question regard must be had to all the circumstances of each individual case.”[28]
[28] WKCG, at para. 25.
(2) Some relevant considerations include:
·         “the seriousness and nature of the crimes committed”;
·         “the length of the sentence imposed”;
·         “any mitigating or aggravating circumstances”;
·         the extent of the criminal history, the nature of the prior crimes and the period over which they took place;
·         “[the] risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration”;
·         “[the] criminal record must be looked at as a whole and prospects of rehabilitation assessed”;
·         “[the] assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community”;
·         “[the] person’s previous general conduct in total criminal history are highly relevant to assessing the risk of recidivism”;
·         “the reference to the words ’having been convicted’ operate to limit the class of persons on whom the provision operates and …… The question whether a person ’constitutes a danger’ is a separate additional matter to be independently established”;
·         the expression ‘danger’ “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 members [sic] of the Australian community”;
·         [it] “is not necessary to establish that there is a probability of real and immediate danger of present harm” [emphasis in the original].[29]
[29] At paras 26-31.
Member Eteuati reviewed judgments of the Federal Court and decisions of the Tribunal in HYTB and Minister for Immigration and Citizenship.[30] I respectfully adopt his statement of the principles which are relevant to this application.
[30] [2020] AATA 1967 at paras 60-75.
Member Eteuati said, in part:
………. in order for a person to be a “danger” there must exist, at the time of the decision, a present risk which is “real” or “significant” or “serious” which is “neither remote nor fanciful” that the person will cause harm of a sufficiently serious nature (for example “of physical harm, or extreme emotional harm”) in the present or the future. If no such risk is present at the time of decision, it can not be said that a person is a danger. Similarly, if a present risk of future harm relates to a harm which is insufficiently serious, for example a moderate risk of mere “upset” then the person will not be a danger. Conversely, if there is a low risk but one which is none-the-less “real” or “significant” or “serious” of particularly serious future harm, say grave physical injury, then that risk may be sufficient to determine that a person is a danger to the Australian community.[31]
[31] At para. 64.
Further, Member Eteuati referred to the following principles arising from the interpretations of the Courts and the Tribunal:
· subsection 36(1C) of the Act invests the Tribunal with a fact-finding function and not a discretion,
· the potential harm a person may suffer if deported from Australia is not relevant to the decision to be made under subsection 36(1C);
· “in determining whether a person in immigration detention is a danger to the community, the decision-maker is not restricted to considering the risk of harm that a detainee presents to those in immigration detention. The risk must be one that exists at the time of the decision, while the person is in immigration detention, but the risk of potential future harm extends to harm which may be caused to the community if the Applicant is released into the broader community.” [32]
[32] At para. 70. See also MHCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4259 at para. 22 (Deputy President Rayment and Senior Member Fairall).
Applying the Principles
Turning to consider the Applicant’s present situation, it is not in dispute that he has completed his term of imprisonment (including his parole period) and is being held in immigration detention. He has received some counselling to assist him to deal with his post-traumatic stress disorder. Nevertheless, despite his request and recommendations made before he was sentenced and again before he was released from prison, he has not had the benefit of a sex offender program. As he has completed his period of parole, he is no longer eligible to engage in a State funded program.
The opinions of the experts who gave evidence before me as to the risk of the Applicant re-offending, vary. Ms Chamarette puts the risk at low or minimum; Ms Youssef is of the opinion that it is “above average” or moderate-high.
Both Ms Chamarette and Ms Youssef impressed me as expert witnesses who had assessed the Applicant carefully and given close consideration to the factors which formed the basis of their respective opinions. However I am not satisfied that the risk of the Applicant re-offending is as low as that expressed by Ms Chamarette. Some of the dynamic factors relied upon by Ms Chamarette will depend upon the Applicant being able to implement his proposals for his rehabilitation.
The Applicant’s future accommodation and employment is uncertain. I accept that his brother intends to assist him so far as he is able, but his brother’s place of residence in future is unknown and his employment is uncertain. Further, the success of the Applicant’s treatment will depend upon his maintaining the motivation he has expressed.
I am satisfied that there are a number of dynamic factors which, in the Applicant’s case, lessen the effect of the static factors identified by Ms Youssef as a result of her testing of the Applicant. However, in some instances, I am not satisfied that these supports will be available should the Applicant be released to live in the Australian community.
I am satisfied that the Applicant’s older brother, Mr B, is concerned for the Applicant’s welfare and will assist him to the extent he is able. However, he plans to move out of the accommodation in which he and the Applicant resided. His new location is unknown and the suitability of that accommodation for the Applicant is uncertain. While Mr B expects to assist the Applicant to find work, this will depend on his employer’s staffing needs at the time. I accept that, in view of the years the Applicant has been imprisoned and in immigration detention it is difficult for him to provide greater certainty in his plans for the future.
Even if the risk of the Applicant re-offending is not as high as Ms Youssef suggests, I am satisfied that the risk is significant. My reasons for this conclusion are set out in the following paragraphs.
On the basis of the findings of the Sentencing Judge and the Applicant’s own evidence, I am satisfied that the Applicant’s offending was opportunistic. The Applicant took advantage of a vulnerable child immediately after he became aware of the opportunity to do so. The Applicant assaulted the child in a closed room and offered him money. He denied having done anything to the child when confronted by the child’s father.
I am not satisfied that the Applicant had no understanding that his conduct was wrong at the time. I accept that his own childhood experiences may have meant that he did not fully understand the seriousness with which the offence is viewed in the Australian community.
Although the Applicant has made some progress in his understanding of the seriousness of the offence, on the basis of the Judge’s findings I am satisfied that, at least until the time he was sentenced in 2016, the Applicant showed little insight into his offending behaviour and had not fully accepted responsibility for his actions. Although he has made some progress by undertaking trauma counselling, in the absence of his participating in a sex offender program, I am not satisfied of the extent of his insight into his offending or that he fully accepts responsibility for it.
It is regrettable that at no time during the six years the Applicant has been held in prison and immigration detention, has he been offered any form of sex offender program, despite his request to participate. I am satisfied that he has benefitted from the counselling he has received, but this has not been directed specifically to minimising the risk of his reoffending. As Ms Chamarette reported, the Applicant’s lack of treatment has hindered the Applicant’s understanding of his own offending behaviour or of appreciating the seriousness and the impact on his victim.
In view of the young age of the Applicant and his lack of any previous record, had he been given the opportunity to take part in a tailored program, the outcome of this application may have been different.
I accept the evidence of Ms Howell that treatment is available to the Applicant and that it is likely to substantially reduce the risk of his re-offending. I accept that the Applicant intends to pay for treatment if he is in a position to do so. On the basis of the evidence of Ms Chamarette and Ms Howell I am satisfied that, with the right treatment, his prospects of rehabilitation are good. However, I must decide whether the danger of harm to the community exists on the basis of the treatment received. Obviously, it is very difficult for the Applicant to avail himself of the treatment whilst he is in detention without an income.
I have taken into account the extreme seriousness of the crime committed against a ten year-old child. The effects of the Applicant’s actions on the child are unknown. He may suffer from those effects for the rest of his life. Should the Applicant reoffend, the effect on other members of the Australian community, particularly those members most in need of protection, are likely to be serious. In circumstances where the Applicant is yet to commence treatment, there is a significant risk that he may act on impulse should the opportunity again arise.
For the reasons stated I consider that the Applicant is a danger to the Australian community. The decision to refuse his application for a protection visa will be affirmed.
PART G: CONCLUSION
The reviewable decision made 30 July 2020 to refuse the Applicant’s application for a Safe Haven Enterprise visa, will be affirmed.

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

.........................[SGD]...............................
Associate
Dated: 4 March 2022

Dates of hearing: 15 & 16 July 2021

Counsel for the Applicant: D Bhutani

Solicitors for the Applicant: K Bones – Legal Aid NSW

Counsel for the Respondent: K Hooper

Solicitor for the Respondent: J Pipolo – Mills Oakley

[2022] AATA 378

4 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice