QXBV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

QXBV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1970 (5 July 2023)
Division:GENERAL DIVISION
File Number(s): 2022/3496
Re:QXBV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick
Date:5 July 2023
Place:Melbourne

The Tribunal affirms the decision under review.
.................................[SGD].......................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – refusal to grant protection visa – whether convicted by final judgment of particularly serious crime – whether a danger to the Australian community – seriousness and nature of offending – risk of reoffending – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
FSKY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 2
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
Secondary Materials
United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
REASONS FOR DECISION
Dr Stewart Fenwick
BACKGROUND

QXBV applied to the Tribunal on 2 May 2022 for review of a decision of a delegate of the Minister for Home Affairs dated 7 April 2022 that the applicant did not pass the criterion in s 36(1C)(b) of the Migration Act 1958 (the Act) and so was ineligible for the grant of a protection visa.
The applicant was born in 1995 in Wau, South Sudan, is a citizen of that country, and of Dinka ethnicity. He and his family relocated to Khartoum, Sudan, in 1998 and a year later to Egypt. QXVB arrived in Australia with his family in 2004 and, after some offending as a minor, was taken by his family back to South Sudan aged nearly 15, where he remained for nearly five years. During this time he was exposed to conflict and was at one point kidnapped.
After his return to Australia in early 2015, QXBV committed a series of offences in different states of Australia, much of it involving family violence for which he received multiple sentences of imprisonment. In mid-2019, a decision was made under s 501 of the Act refusing to revoke the mandatory cancellation of QXVB’s visa. He did not appeal this decision, and in early 2021 the applicant was released from prison into immigration detention.
The applicant subsequently applied for a protection visa in June 2021 for which he had legal assistance. QXVB has a history of both substance abuse and mental health diagnosis and treatment, specifically for Post-Traumatic Stress Disorder (PTSD). It was determined during the protection visa process that QXVB faces persecution for his membership of the particular social group, persons with mental illness in South Sudan, and that there are substantial grounds for believing he faces a real risk of significant harm on the same ground.
QXVB was not represented before the Tribunal. At an early case management hearing, at the Tribunal’s request, the applicant consented to the Respondent arranging a mental health assessment which took place with Dr Leon Turnbull, occupational and forensic psychiatrist, in November 2022. The Tribunal also communicated with a senior practitioner counsellor with Foundation House, Ms Christine Nathan, who provided a brief email concerning the applicant’s engagement with the organisation’s services and the availability of future support. The only witness at the substantive hearing held in early January was a personal referee for QXVB, Mr G.
In addition to material forming part of the documents arising from the protection visa application, I had before me this additional material:
(a)report of Dr Leon Turnbull, occupational and forensic psychiatrist, dated 15 November 2022 (Exhibit R1);
(b)bundle of incident reports (Exhibit R2);
(c)letter of North & West Metro AOD Service, Odyssey House Victoria, dated 17 January 2023 (Exhibit A1);
(d)letter from Mr D, a friend of the applicant dated 16 January 2023 (Exhibit A2);
(e)email from Ms Nathan, Foundation House, dated 19 January 2023 (Exhibit A3); and
(f)email from Mr G, dated 23 February 2023.
The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T), a Statement of Facts, Issues and Contentions (SFIC), and a brief Further Submission (RFS). A tender bundle (R), supplementary tender bundle (SR), and further supplementary tender bundle (FSR) were also lodged. The latter comprises medical records from QXVB’s time in detention and was lodged after the close of the substantive hearing.
The Respondent’s further submission was necessitated by the fact that Ms Nathan’s response to the Tribunal’s inquiry arrived after the close of the substantive hearing. Accordingly, the hearing resumed in early February to provide QXVB an opportunity to respond.
Some ten days after this short, resumed hearing, Mr G independently wrote to the Tribunal stating that he wished to retract his prior support for the applicant. Accordingly, I again resumed the hearing in early March in order to provide QXVB an opportunity to respond.
LEGISLATION
Section 36(1C)(b) of the Act provides that it is a criterion for a protection visa that the applicant is not a person who the Minister considers, on reasonable grounds, ‘having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community’.
It is also a criterion for a protection visa that a person is either owed protection obligations as a refugee, or ‘complementary protection’ obligations, (s 36(2)(a)-(aa)). However, it is the effect of s 36(2C)(b)(ii) that, notwithstanding that a person is found to be owed one or more forms of protection obligation, a finding that they do not meet the criterion in s 36(1C)(b) negates this protection finding.
‘Particularly serious crime’ is not specifically defined, but pursuant to s 5M(a) of the Act, includes a ‘serious Australian offence’. This latter term is defined in s 5 to be 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.
The decision of Deputy President Tamberlin in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (WKCG) is regularly cited for its interpretation of these provisions. Relevant observations from WKCG are that:
(a)regard must be had to all the circumstances of each individual case [25];
(b)some relevant considerations include the seriousness and nature of the offending, the length of any sentences, and any mitigating or aggravating circumstances [26];
(c)regard must be had to the future as well as the present in respect of danger [31]; and
(d)in assessing whether a danger exists, ‘it will be sufficient if there is a real or significant risk or possibility of harm’ to members of the Australian community, and it is too high a threshold to require this to be established at the level of probability [31].
The Full Court of the Federal Court of Australia has recently considered the statutory test in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 (DMQ20). I note, briefly, that Rares J observes that the words ‘real or significant’ in WKCG qualify both of the following alternatives, ‘risk’ or ‘possibility’ of harm [18]. His Honour also notes that as the word ‘danger’ derives from treaty,[1] any judicial gloss should be avoided [36]. Having said that, Rares J also considers that there appears to be a degree of international consensus that ‘reasonable grounds must exist to consider that the refugee poses a serious threat or risk of substantial, rather than negligible, harm to the local community’ [44] in order to be found to pose a danger.
[1] Article 33(2) of the Convention relating to the Status of Refugees.
His Honour adds that consideration of danger ‘involves an evaluation along a spectrum comprising, first, the probability or likelihood of the occurrence of an event or circumstance and, secondly, the consequence of its occurrence’ [53]. While there is no causal link required between the refugee’s conviction and the danger, consideration may be given to past crime in evaluating the present or future danger to the community [56].
Similarly, the plurality in DMQ20 consider that ‘danger’ should be understood to carry its ordinary meaning, and conceptually can be understood as a ‘function of probability and consequences’ [106]-[107]. Further, the plurality consider that emphasis needs to be placed on the sufficiency of the likelihood of a sufficient level of harm in determining whether a danger exists, even in circumstances where there is a prospect that the harm will not be realised [109]-[110].
ISSUES
The issues for determination are whether the applicant: has been convicted by final judgment of a particularly serious crime; and, is a danger to the community.
CRIMINAL OFFENDING
The history of QXVB’s criminal offending (SR1(l)) discloses that the majority of his offending occurred in State 1. The record consists almost entirely of charges brought at two court appearances in 2018 (in State 1 and State 2). The first recorded court outcome arises in 2017 at which no conviction was recorded for charges for contraventions of directions, and failure to appear. There is an outstanding arrest warrant issued in State 1 disclosed in this record in respect of charges relating to domestic violence offences that occurred in mid-2018.
A large number of matters were dealt with in March 2018 at a District Court in State 1. These involve offending that occurred in 2016, and breach offences that took place in 2018. QXVB was sentenced to multiple terms of imprisonment, but released after this court date on parole, having served 452 days in pre-trial detention.
At this court event, QXVB pleaded guilty to 15 separate charges (R27) including:
(a)offending in October 2016, being four domestic violence offences of wilful damage, assaults occasioning actual bodily harm, and assaults occasioning actual bodily harm whilst armed/in company;
(b)deprivation of liberty arising from one of the October 2016 incidents;
(c)offending in November 2016 being assaults occasioning actual bodily harm and ‘choking suffocation strangulation domestic relationship’;
(d)contravention of domestic violence (aggravated offence) order and breach of bail conditions from the November 2016 domestic violence incident; and
(e)offending in January 2018, being contraventions of domestic violence order (aggravated offence) and contravene direction or requirement of police, domestic violence offence.
Several of these charges were summary offences dealt with by a District Court judge, and convictions were recorded without further punishment for some charges. Various periods of imprisonment were imposed comprising terms of one, three, six and 18-months. The applicant was sentenced to 27 months’ imprisonment on one group of charges.
While on parole, QXVB committed further offences in July, August and November 2018 (R40) in State 2. The applicant pleaded guilty, and consented to the summary hearing by a Magistrate of the following charges: make threat to kill; contravene family violence intervention order; unlawful assault; and, intentionally cause injury. QXVB was sentenced to terms of imprisonment of three, six, and 18-months cumulative, the latter being an aggregate sentence. The total effective sentence was 27 months, with a non-parole period of 21 months.
The Respondent contends that QXVB has been convicted of a total of 20 charges of which 13 carry maximum terms of imprisonment of not less than three years (RSFIC [41]). It is also contended that his offending also involves violence against a person. The Respondent further contends, correctly, that QXVB’s prior legal representative conceded that the applicant has been convicted of a serious Australian offence (T35, 436).
Having considered the material cited above, and having also considered the legislation establishing the charges referred to, I am satisfied that QXVB has been convicted by final judgment of a particularly serious crime, in the form of a serious Australian offence. That is, there are a number of convictions for crimes involving violence carrying terms of imprisonment in excess of three years.
DANGER TO THE AUSTRALIAN COMMUNITY
Seriousness and nature of the crimes committed
I extract the following summary from the transcript of the sentencing of QXVB in March 2018 (T26(b)):
(a)the victim of the offending was the applicant’s former girlfriend who is the mother of his child, QXVB was on bail at the time of both sets of offending, and affected by alcohol on both occasions;
(b)the first incident was ‘protracted and serious’, in which QXVB armed himself with a 20cm long knife which caused two cuts to the victim when defending herself from an attack;
(c)QXVB then dragged the victim and shut her in the bathroom and verbally and physically abused her, throwing her into the shower screen;
(d)upon the victim escaping to the driveway of the property and then into her car, QXVB smashed a window, unlocked the vehicle and dragged the victim out and continued to verbally and physically abuse her;
(e)when a friend of the victim’s turned up at the property, QXVB continued to assault the victim who was then taken to a bedroom by her friend, whereupon the applicant continued to punch and slap the victim, until QXVB was prevailed upon to leave the room and the friend locked the door;
(f)in the second incident QXVB attended the home of the victim despite the terms of a domestic violence order;
(g)after barging into the property the applicant grabbed the victim from behind, choking her with his arm around her neck, and also placing his hand over her nose and mouth;
(h)with the victim fighting against the assault, QXVB pushed her onto the bed and continued to strangle her from behind, covering her nose and mouth and biting her several times;
(i)the victim managed to free herself and sought air on the balcony and asked QXVB to call an ambulance on the pretext of an asthma attack. Upon being taken to hospital, injuries consistent with blunt force trauma and human bite were confirmed;
(j)another assault charge dealt with involved a ‘cowardly blow to the back of the head’ of a security guard, and the court also dealt with a false call to emergency services;
(k)the court acknowledged that QXVB was 20 years old at the time of the domestic violence offences with no prior criminal history;
(l)the court acknowledged a forensic psychological report indicating that QXVB’s upbringing was marked by trauma, the applicant turned to alcohol to deal with that trauma and that alcohol acted as a disinhibitor, with the risk of reoffending tied closely to QXVB’s ‘ability to deal with [his] management of [his] mental health and [his] abuse of alcohol’; and
(m)the court also acknowledged that he appears to have shown remorse and plans for rehabilitation.
While not apparently referenced in the sentencing remarks, police records indicate that the victim was pregnant at the time of the November 2016 assault (R13), and this is consistent with the reported date of birth of the applicant’s daughter, being March 2017 (T4, 103).
Two incidents for which QXVB was sentenced on this occasion, but which are not included in the sentencing remarks, occurred in January 2018 (R26). In the first incident, QXVB attended at the property of the victim’s uncle while she was visiting, and verbally and physically assaulted her in front of the uncle. Late the same day QXVB sent a threatening message by text to the victim’s sister. In the second incident, QXVB was found by police to be hiding in a closet at the victim’s address having apparently interrupted her plans to move out.
I extract the following summary from the sentencing of QXVB in November 2018 (T26(c)):
(a)in August 2018 while at his aunt’s house and in her presence, QXVB punched his former partner to the eye when she came to the house to pick up her child, the applicant having previously thrown rocks at her car nearby and punching the driver side window;
(b)in November 2018 while at his cousin’s residence where the same victim was also present, QXVB lunged at the victim repeatedly punching her, also biting her on the forehead and cheek, and the victim later received stitches for a laceration to her left eye and surgery for a haematoma;
(c)the offending was described as ‘extremely serious’ and ‘at probably the higher end of the scale for this jurisdiction for the injuries’ arising, and resulted in an immediate term of imprisonment; and
(d)the magistrate took into account QXVB’s background of psychological trauma, and QXVB expressed remorse and apologised, and acknowledged that he was affected by alcohol.
In a statement provided in the protection visa application (T4(d)) QXVB describes his family background and time in South Sudan, including departure at a young age for Khartoum and then Egypt. He states the family all became Jehovah’s Witnesses upon arrival in Australia. QXVB states that he went to a number of primary and secondary schools and struggled to learn English. The applicant provides an explanation of his return to South Sudan, which was his father’s decision. He states that his mother took him on the pretext of a holiday and then departed, and he eventually found accommodation with neighbours.
QXVB describes in some detail an incident in which rebels came to his house and shot some housemates, and that he bribed a rebel in order to avoid having to shoot a housemate himself, witnessing the subsequent execution. QXVB states that he later escaped to his family’s state of origin and explains a further period of displacement. The applicant describes his further efforts to escape, including travel to and ultimately from Nairobi where he departed with the assistance of an aunt in Australia.
In another statement provided with the protection visa application (T21(b)) QXVB provides a similar but less detailed account of his time in South Sudan. QXVB states that he had a difficult relationship with his father (also described in the written submission as an abusive relationship (T21(a), 256). He states further that he joined the army in 2011. The statement concludes with an expression of regret for his offending in Australia.
QXVB stated in evidence that he did not find out that his former partner was pregnant until after the offending in late 2016, but later appeared to agree that he knew she was pregnant at the time. The applicant was asked about language used (‘I am the fucking man in this relationship’) and he responded that he now knows better. He acknowledged that the assault of a security guard occurred when he and another attempted to remove a person from the mental health unit of a hospital.
The applicant stated that his relationship with his former partner lasted around two years, until November 2018. QXVB explained that the offending in late 2018 arose due to a disagreement about who would care for their child as they both wished to go out with friends. It was put to the applicant that he punched her 10 times, and while initially agreeing, QXVB also stated that he could not really remember. He acknowledged punching and biting her in the further incident, stating that he was drunk and angry.

I note that the materials include several police incident reports (LEAP) dated between 2007 and 2010, when QXVB was a minor (R1-6). They refer to a troubled home in which the applicant’s family appear to have had difficulty handling violent and aggressive behaviour by QXVB and which appears to have led at one point to him being placed in out of home care. Another report indicates a dispute between QXVB and his father about access to the father’s Centrelink money. On another occasion, police attended the family home to mediate a dispute involving in part QXVB’s desire for respect from his family members.
Submissions
Written submissions of the applicant (T35) provided during the protection visa process include QXVB’s acknowledgment of his wrongdoing, and other contentions that will be addressed further below. It is contended that QXVB is ‘extremely remorseful’, particularly for the assaults on this ex-partner, including the impact this has had on developing a relationship with his daughter. It is submitted that his offending occurred within a short period between 2016-2018, after QXVB’s return from South Sudan, and relates to trauma experienced there. It is contended that following diagnosis with PTSD and depression in prison, QXVB engaged with Foundation House, but attempted suicide when entering detention, and has difficulty focusing due to the prospect of his possible return to South Sudan.
The Respondent submits that QXVB’s offending is undeniably serious, and includes violent behaviour in particular against an ex-partner. This offending was in contravention of domestic violence orders, was unprovoked and caused injuries and hospitalisation. The Respondent draws attention to the fact that the victim was pregnant at the time of one of the incidents.
The Respondent also contends that the total length of the sentences imposed in March 2018 was 37 months. It is also contended that notwithstanding the 21 month non-parole period imposed in November 2018, QXVB served a period of 26 months of the original 27 month sentence. In summary, it is submitted that the applicant has spent a total of three years and four months in prison since November 2016 and that custodial sentences must be viewed as a reflection of the objective seriousness of offending.
With respect to mitigating circumstances, the Respondent acknowledges that QXVB’s background, youth and absence of prior criminal history were factors in the March 2018 sentencing. The applicant’s background was also a factor in the sentencing in November 2018, but – the Respondent highlights – was outweighed by the seriousness of the offending. In contrast, the Respondent identifies aggravating circumstances being: violent offending against a woman; contravention of domestic violence orders; and, offending on parole, having already been convicted of similar offences. In short, the Respondent contends that QXVB’s traumatic past should not lessen the objective seriousness of his criminal record.
The Respondent submitted that QXVB’s offending occurred with ‘high intensity’ particularly during 2018, but he has not offended since due to incarceration and detention. Written submissions also identify in some detail adverse incidents that are indicative of a ‘propensity’ to engage in acts of violence and aggression in jail and/or detention, which I will return to below. Overall, it is contended the QXVB has accumulated a ‘significant criminal history’ since returning to Australia in 2015.
Risk of reoffending
In material submitted as part of the protection visa process (SR4), QXBV states that he is a changed man. The applicant states he has played an active role as father to his daughter, who would be very upset if QXBV was removed from Australia. QXBV also states that he wants to get to know his daughter, who lives in State 1. The applicant provides details of a large family group comprising eight siblings in addition to himself, and his parents. QXBV states that he has always had a close relationship with his family, who would be disappointed and upset were he not allowed to remain in Australia.
There are three further written statements from QXBV (SR4) in which he describes a challenging childhood including trauma, that all his family members are in Australia, and at around the age of 18-20 years he began associating with the wrong people, was introduced to drugs and alcohol and committed crimes. He restates his desire to remain in Australia to turn his life around.
In evidence QXVB stated that among his family members he has weekly contact with his twin sister and his mother. None of the family has visited him since he has been in detention. The applicant described his relationship with his father as ‘not that good’ and that they last spoke in mid-2022. I understood from his evidence that his father lives apart from the family. QXVB stated he also speaks to an aunt who lives interstate. The applicant did not ask her to give evidence as he was ashamed for ‘messing up’.
When asked about the seven appointments with Foundation House, QXVB responded that he has a ‘disability with concentrating’ which he also had when he was at school. He agreed when I asked whether this was ADHD. The applicant thought Ms Nathan may have suggested QXVB contact Odyssey House, and he added that ‘they never got back to me’ after his initial conversations. However, he confirmed that an intake process took place. At this point QXVB stated he had been depressed lately, experienced nightmares, was not active and accordingly had not attended ‘some things’. QXVB also noted that he had attended alcohol and drug counselling in prison.
In addition to counselling with Foundation House, QXVB stated he used to see a mental health professional in detention ‘every week, but I haven’t seen him for a while now’. He stated that this included discussions about anger management. When asked about how this was progressing, the applicant stated he studies the Bible, tries to apply the principles in his life, and that ‘Jehovah God is the only one who can help me’. In response to a question from myself, QXVB stated that the Bible teaches ‘how to love one another’, and about self-control and staying away from temptation. He added that Jehovah’s Witnesses only socialise with good people.
QXVB was taken to a number of reports regarding incidents in detention:
(a)13 January 2021, punching a wall;
(b)30 May 2021, removal to another unit for his own safety after a violent encounter with another detainee;
(c)8 July 2021, abusive conduct towards a doctor on escort to Northern Hospital;
(d)20 August 2021, climbing onto a rooftop in protest;
(e)10 April 2022, contraband found in room, being metal spring and seven pool balls;
(f)21 September 2022, punching an officer;
(g)1 October 2022, participating in an assault with others on a fellow detainee and, during the same incident, putting an officer in a choke hold;
(h)9 November 2022, spitting on an officer;
(i)11 November 2022, climbing on a rooftop in protest, and forced removal from a recreation room; and
(j)29 November 2022, climbing onto a rooftop in protest over the treatment of detainees.
I understood that in large part, the applicant acknowledged that these incidents occurred. He stated that his protest actions were due to feeling hopeless in detention, and I noted during evidence that in at least one incident QXVB himself was injured and another took place on a day when he self-harmed. The applicant stated that he had difficulty controlling his emotions due to thinking about things including his past with his family, and due to his PTSD. He reiterated that ‘this place’ is driving him ‘crazy’ and he experiences panic attacks, and sometimes cannot control his anger, taking it out on the officers.
QXVB stated that his family, lawyer and Mr G had advised him not to fight with the officers. He stated several times that he wishes to improve himself, and misses his family very much. The applicant also stated that he would get violent previously when using alcohol. He then stated that drugs are not good for him, that they make him hallucinate, and he hears voices in his head and has nightmares that seem real to him. I asked him how we would cope in the community, and QXVB stated that support from the Jehovah’s Witnesses and his family would keep him from these things.
When asked about his child, QXVB stated they live in State 1. The applicant stated that should he be released he intends to improve his life and go to court to obtain shared custody. QXVB stated further that he had not had contact with the child for the last couple of years. When asked about the reaction of the mother, QXVB stated he was not intending to talk to her but just to go to court, and confirmed that he had not spoken to his ex-partner since they separated in 2018.
QXVB stated that if returned to the community he would live with his aunt and surround himself with Jehovah’s Witnesses. He stated further that he needed a social worker to support him and that he hoped the government would provide a counsellor, who might come to his house ‘every now and then’. QXVB added that he considers himself illiterate and that he could return to factory work if he regained his forklift licence.
When asked about his medication, QXVB stated he had ceased taking anti-depressants for his PTSD about a month ago. This was due to a number of reasons including side effects, interrupted sleep and having to ‘turn up’ to obtain the medication.
At the resumed hearing, QXVB stated that a request in mid-2022 to see a psychologist in detention to obtain a single room arose from his difficulties sleeping. The applicant stated he experienced sleep talking and sleep walking which disturbed his roommate. QXVB was also asked about a medical record from July 2022 indicating that he had issues with controlling his aggression, including with roommates. He responded that he was trying to avoid violence, including through ‘getting religion’, but admitted that he could lose his temper and fights can start this way. I understood his evidence to be that he had been allocated to a single room since around the time of these notes.
QXVB stated that he experiences nightmares which, from the description he provided appeared to have a particularly fantastical and sexualised nature. He stated that his medication affects him, and accordingly he had stopped taking it. QXVB added that he does not discuss his nightmares with the psychologist, but was telling the Tribunal because ‘you are in a position of authority’. The applicant stated that he had been advised it was ‘wise’ to continue taking his medication.
QXVB was then asked about a letter from the medical services in detention concerning missed medications in late 2022. He responded that this related to all of his medication. When asked if this was related to his earlier statement concerning nightmares, QXVB responded that he thought the nightmares were from childhood trauma and his mental health. He also referred to side effects making him more paranoid. QXVB stated that he sees a psychologist and psychiatrist regularly (both of whom he named) and a psychiatric nurse.
QXVB confirmed, consistent with Ms Nathan’s email correspondence, that his last formal session with her was December 2021. He also confirmed they had spoken briefly late in 2022 following a request from Refugee Legal that the engagement recommence. The applicant stated he would ‘absolutely’ take up the offer of resuming support from Foundation House if released.
I asked the applicant why he had stopped engaging with Foundation House, as indicated in the email correspondence. He stated that he had trouble staying motivated in the detention environment and QXVB considered that in the community he would be supported by his family to attend, which would give him greater motivation.
A report of the Emergency Department, The Northern Hospital, dated 6 January 2021 (T20(c)) records an admission following two suicide/self-harm incidents in detention in the preceding 24 hours. It notes past medical history including PTSD and depression and recommends psychiatric follow-up in detention, and records no current medications. Notes also record the revocation the following day of an Assessment Order with the record: ‘[QXBV] is not presenting with a mood or psychotic disorder …’.
Dr Turnbull conducted a face-to-face assessment of the applicant in November 2022 (R1). He describes being provided with ‘a few’ pages of material only. The report notes QXBV’s personal history overseas and his trouble with the school system in Australia. Dr Turnbull reports that QXVB told him of traumatic experiences during his return to South Sudan, and that he has nightmares and flashbacks. QXVB reported taking an antidepressant nightly and that he had attempted suicide on multiple occasions when in the community and in detention. QXVB also stated his mother is a Jehovah’s Witness and he was able to articulate their beliefs.
Dr Turnbull states that QXVB’s presentation was consistent with the prior diagnosis of PTSD, as well as noting mention in materials of further calmative medication. He found that QXVB was not intellectually compromised, and Dr Turnbull was ‘not of the impression that [QXBV] has any significant personality pathology as briefly offered in the medical notes’. Dr Turnbull proposes that behaviour in detention is an expression of dissatisfaction about the applicant’s predicament, and some ‘mood disturbance’ also relates to his predicament. He also states: ‘[c]onsistent with a man who I think is largely psychologically resilient, I would not say that his condition is extremely severe, but it does seem to bite into his wellbeing significantly from time to time’. The ongoing use of antidepressant medication was considered reasonable.
Detention medical records (SB1) indicate a consultation for missed medication on 25 January 2023. This record notes low risks of harm to self and others and that QXVB ‘presents with stable mental state however ongoing nightmares’. A record dated 12 December 2022 notes non-compliance with regular medication and multiple missed appointments with the medical team. A psychiatrist recorded the following on 21 November 2022: ‘[p]resentation more in keeping with complex trauma … rather than suggesting bipolar disorder. He is no longer presenting with anger/hostility/rage … further risk to others and self remain given his current stressors/uncertainty …’. A primary health nurse recorded on 5 September 2022 that QXVB was not taking his medication on a regular basis. An earlier record from a psychiatrist dated 4 June 2022 notes that QXVB is not on medication and his ‘mental health appears stable’.
A report from Ms Nathan dated 13 August 2021 (T20(b)) describes QXVB as in the process of assessment. He had been referred by a psychologist in detention in January 2023 ‘due to the re-emergence of Post Traumatic Stress Disorder (PTSD) symptoms, noting a high functional disturbance with ongoing suicide attempts due to PTSD, dissociation and report of auditory hallucinations’ resulting in daily review. The report records a total of seven telephone sessions and that QXVB’s ‘mental health remains extremely sensitive to psychological stressors and under pressure can manifestly deteriorate’. Contemporary stressors were fear for his future and stress from the legal process. Ms Nathan states the applicant will continue to receive support.
In her subsequent email correspondence, Ms Nathan states QXVB did not continue with sessions after December 2021 as he wished to focus on the future and mention of the past made him miserable. She states that she spoke to QXVB briefly before Christmas 2022 about future sessions, but this had not transpired due to leave. Ms Nathan states that the applicant described himself as mentally unwell, and that detention was not a conducive environment to recovery. She concludes: ‘[i]f released [QXBV] could certainly be supported by our organisation in terms of the provision of trauma counselling and psychiatric assessment if required’.
The materials include a number of support letters arising from the protection visa process:
(a)the applicant’s mother and one of his eight siblings, a sister, wrote in quite similar terms asking that QXVB ‘stay with us’ and be given another chance to change himself (SR4);
(b)a cousin whom QXVB describes as an ‘aunty’ wrote stating that the applicant should be allowed to stay in Australia, and that she and her family are happy for him to stay at their home, and she will put him in touch with the community to find employment (T35(e));
(c)a friend Mr D (A2) states he has known QXBV for over 16 years, he understands the applicant has a history of domestic violence offending, has spoken with the applicant in prison and detention, that the applicant’s prior behaviours were ‘situational’ and will not occur again; and
(d)Mr M representing a community organisation (SR6) wrote to express his strong support for QXBV who he has known since childhood, stating that the writer has provided cultural support including counselling, and that the organisation will continue to provide support.
In correspondence dated in October 2021 (T35(c)), Mr G states:
(a)he was put in touch with QXVB in early 2021 in immigration detention as the applicant had expressed interest in reconnecting with the Jehovah’s Witnesses;
(b)QXVB has studied the Bible with the writer in weekly Zoom sessions and the applicant had logged into congregations twice a week;
(c)the applicant is not a baptised member of the writer’s congregation, but his sincerity is evident, and QXVB recognises the importance of conforming to the high standards of behaviour from the Bible;
(d)QXVB shows a positive attitude in detention and avoids violence, asks the writer to pray for his ex-partner and daughter and has a genuine desire to reconnect with family and be a positive member of society; and
(e)the writer is willing to continue to help QXVB.
Mr G gave evidence at the hearing consistent with his statement of support. When asked about QXVB’s commitment to changing his behaviour, Mr G stated that his engagement with the applicant had ‘been a bit of a rollercoaster’ and QXVB had exhibited mood swings early on. However, Mr G affirmed that the applicant had called him, and was ‘really willing to make an effort’. The witness described QXVB as a ‘baby’ spiritually.
Mr G stated that he was aware that QXVB had ‘gone rogue’ in detention and had climbed the roof on one occasion, which was the result of losing a family member. He was also aware of misconduct in the form of spitting and assault, and considered that conditions in detention had caused QXVB issues, but that he had come to understand that he should apologise for this conduct. Mr G stated that it was definitely possible for QXVB to stay with him if he had room, although this is not presently the case. I also understood Mr G to state that a condition of his future support was for the applicant to work on his rehabilitation.
As noted, Mr G later retracted his support for the applicant. When informing the Tribunal about this, Mr G expressed regret, but stated that as of 15 February 2023, QXVB had stopped associating with the writer and his organisation. Mr G states further that the applicant had stopped taking his medication and ‘explicitly informed me that he no longer wishes to associate with me and the Jehovah’s Witnesses as an organisation’.
Upon QXVB being connected to the further resumed hearing in March 2023 to discuss the retraction, the applicant stated that he was ‘sick of the games and sick of this place; I don’t care about the visa’ at which point he disconnected from the hearing.
Correspondence to the applicant in prison from the corrections services (SR4(k), 133) records that he was assessed for inclusion in an offenders behaviour program. Following the administration of a standardised screening tool he was ‘identified as falling into the low risk category for violent recidivism’ and was therefore ineligible.

Correspondence from Odyssey House dated November 2021 (T35(b)) confirms QXVB contacted the organisation and that initial phone intake took place. Further correspondence from January 2023 (A1) records that the applicant has expressed commitment to abstinence and is seeking relapse prevention strategies. The letter also states that while recommended for a ‘complex episode of Drug and Alcohol counselling’ QXBV declined further treatment.
A letter from the Kangan Institute dated in November 2021 (T35(f)) states that QXVB registered to enrol in the ‘English Work and Settlement’ program at the Docklands Campus, and that further contact would be made to assess him for a suitable program.
Submissions
At the close of the initial hearing, QXVB stated: ‘all I’m asking for are more advice, I promise I won’t offend again’. He added that immigration detention was ‘not really helping’ him and he ‘will dedicate [his] life to Jehovah; I just need good people around me’. QXVB reiterated he is willing to change and to ‘put in that effort’.
At the resumed hearing, QXVB stated: ‘I rely on Jehovah God’. He added: ‘as much as I am trying to progress in the Bible and dedicate my life to God, I have dreams and feel hopeless’. QXVB reiterated that the detention environment did not make it easy to progress and on release he wishes to surround himself with Jehovah’s Witnesses, his best friend D, and family. The applicant then stated that Jehovah God had planted a seed in him, and this was growing into something.
Written submissions (T35(a)) contend that despite some of the applicant’s offending qualifying as particularly serious crime, he is not a danger to the community. It is also acknowledged that QXVB’s time in prison was marked by a number of incidents around the time of the mandatory cancellation of his visa, and was not ‘as good as it should have been’. This behaviour is attributed to stress, frustration and ‘utter terror’ at the prospects of return to South Sudan. It is submitted further that the applicant does not remember all of the incidents, but explains that a ‘home-made shiv’ found in his cell was not his, and that since a positive urine test, he was placed on a methadone program. It was submitted that QXVB’s conduct issues in prison and detention reflect ‘the unique nature of those environments’ and should not be taken to reflect how the applicant would act in the community.
Submissions note that the applicant has completed an intensive alcohol and drug course in prison, and is committed to abstinence. QXVB has also participated in a methadone program to address previous problems with drug use. It is contended that QXVB made contact with Odyssey House so that his efforts in this regard can continue.
It is contended for QXBV that Ms N has offered assistance with accommodation and employment, and that QXVB has sought to address his literacy through training. The submissions state that the applicant ‘still has support from his family members’ but was reluctant to involve them in his protection visa application, yet supporting statements were provided. In summary, it is submitted that QXVB has realistic plans to confront mental health and substance use issues, and is motivated to improve his circumstances with support of family and the Jehovah’s Witnesses.
The Respondent submitted in closing that QXVB’s violent offending had been attributed to alcohol and he had not resumed consumption while incarcerated. It was contended that his last formal rehabilitation course was in prison. It was further submitted that his risk of reoffending was subject to stressful triggers such as the issue of access to his daughter. It was contended that there is a risk of a relapse in his mental health, possibly due to stress arising on release.
It was further contended that QXVB has no concrete plans for employment and there is an absence of a positive familial environment, with none of his family having visited him in detention. It was also contended at the resumed hearing that little weight should be placed on the prospects of QXVB re-engaging with Foundation House, and limited weight should be placed on the applicant’s expressed commitment to his medication. At the brief hearing in March it was submitted that the evidence of Mr G should be disregarded.
Written submissions for the Respondent emphasise that QXVB has expressed remorse during criminal proceedings in the past, yet continued to offend. Accordingly, the risk of re-offending remains a ‘real possibility’. The Respondent contends that QXVB has undertaken limited formal rehabilitation programs with respect to substance abuse and that a history of sustained drug abuse means that the risk of reoffending remains high. The Respondent acknowledges efforts to engage with Foundation House, but notes that there is no evidence of attempts at offence-specific rehabilitation. The formal assessment of the corrections services is acknowledged, but it is contended this predates QXVB’s later violent conduct in jail and detention, and so should be given little weight.
The Respondent submits there is uncertainty about offers of post-release support by family. In summary, it is contended that family association has not prevented prior offending, and that there is an ‘absence of a solid familiar and/or social network’ which undermines QXVB’s prospects for successful rehabilitation. It is also contended that the applicant lacks meaningful work prospects, and that Bible studies have not prevented ongoing conduct issues.
Following the resumed hearing, the Respondent reiterated that some caution should be attached to QXVB’s re-engagement with Foundation House, particularly as it occurred immediately prior to the hearing. It is also contended that Ms Nathan’s reporting of the applicant’s remorse was made prior to incidents in detention in late 2022. It is also submitted that her correspondence offers no specifics as to the nature of any future support, nor its relationship to the risk of future violence.
CONSIDERATION
I have addressed the evidence under two broad headings, being the seriousness and nature of crimes committed, and the risk of reoffending, but I understand the consideration of danger to be multifactorial and involves a ‘complex assessment matrix’ (FSKY and Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 2 (FSKY) at [59]). Under the first subheading, seriousness and nature of offending, I include the other considerations around offending behaviour identified in WKCG. I also embrace here consideration of evidence and submissions under both subheadings.
I consider the Full Court in both FSKY, and more recently in DMQ20, to have articulated similar positions with respect to the assessment of risk as it informs a decision under s 36(1C)(b). That is, as noted by the plurality in DMQ20, danger can be seen as a function of probability and consequences. In short, a range of possible circumstances might be found in any given case. These range, hypothetically, from a low risk of conduct that carries serious consequences, to a relatively high risk of future conduct that might be found to carry lesser consequences.
The evidence demonstrates that QXVB has a relatively short history of very serious offending. His principal offending involved unprovoked acts of violence against an intimate partner, and attracted relatively substantial terms of imprisonment. QXVB has also been convicted of contraventions of domestic violence orders, and of the assault of another person. I am unable to find conclusively that offending against his pregnant partner should be considered an aggravating factor in QXVB’s offending, due to the equivocal evidence.
There is no disagreement that there have been important mitigating factors in relation to this offending. I accept the weight of evidence overall, indicating that QXVB’s early life was marked by possibly quite significant trauma. He clearly also failed to settle easily into life in Australia, and his family life was marked by dysfunctional relationships. Not only was he placed in out of home care, he was removed by his parents to their home country, leading to some of the trauma noted above. Overall, however, I agree with the Respondent’s submissions that the seriousness of the offending behaviour outweighs these otherwise important factors in mitigation.
The evidence also demonstrates that QXVB has been involved in a relatively large number of incidents of adverse conduct in detention. Of the incidents explored in evidence, and summarised in these reasons, the minority appear to involve acts of physical violence. I noted that in at least one incident the applicant himself seems to have been a victim of assault. Certainly, however, the material in evidence demonstrates that the applicant has had evident issues in complying with the regime in the detention environment. The applicant’s own representatives also conceded that he had a record of conduct issues in prison.
While substance abuse, in part, may have some relevance to understanding QXVB’s prior criminal conduct the same cannot be said for his record of conduct in detention. QXVB himself explained in written and oral evidence how his present environment was not conducive to his emotional wellbeing. This much can be relatively readily accepted. The issue arising is that QXVB has regularly acted out and demonstrated an inability to handle direction, to cohabit effectively with others, and has staged physical protest actions on multiple occasions. Again, while there may be some wider rationale that explains his dissatisfaction with his conditions, choosing to conduct what can be understood as dangerous protest actions that cause substantial disruption to the authorities demonstrates, I consider, a lack of self-control.
I do accept, further, that QXVB is confronted by a somewhat complex mental health scenario, and that this appears to be a factor in his current presentation. I am somewhat troubled by the formal medical material that I have before me, specifically the notes of the Northern Hospital, and Dr Turnbull’s report. Most starkly there is a potential difference of opinion, with the former recording an absence of mood disorder, and the latter pointing to mood disturbance. There is otherwise general agreement, as I read the material, that QXVB falls somewhat below the threshold for a more severe psychiatric disorder. It may be that the passage of time between the self-harm incident early in his time in detention, and the consultation with Dr Turnbull explains the variance I have noted.
QXVB’s own retelling of his nightmares in evidence gives me cause to consider that his explanation to Dr Turnbull may have been of a different calibre, or that they have changed since that consultation. Perhaps more importantly, the evidence indicates that QXVB is sufficiently troubled by his nighttime experiences in general that he finds this affects his capacity to cohabit with other detainees. I consider that this facet of his mental health possibly points to more than mood disturbance. In support of this, I note the observations of Ms Nathan as to QXVB experiencing dissociation and hallucinations. Her conclusion as to the impact of stressors on the applicant is equally pertinent in this context.
Furthermore, there is evidence about QXVB’s ability to maintain compliance with his medication. With respect to this, I did not receive direct evidence other than from the applicant himself. The evidence and material demonstrate that QXVB has a recent history of non-compliance with medication for his mental health, which I understand to be an anti-depressant. However, I also have material indicating that the prescription of medication is relatively recent. There is a paucity of information about the nature, extent and treatment of any mental health condition, other than references to PTSD, in sentencing. There is no clinical evidence before me about any learning or other intellectual incapacity.
While I consider this recent material somewhat concerning, in the absence of more detailed expert opinion about QXVB’s mental and emotional state, it is challenging to make a more specific finding about the precise import of the evidence that I do have. It is made more difficult due to the issues I have identified with the professional opinions identified above.
I consider that QXVB has demonstrated some capacity to engage with service providers in respect of his substance abuse and mental health issues. I consider that the evidence is somewhat mixed as to how much personal motivation lay behind his communications with Odyssey House and Foundation House. I accept that he has engaged at some length with the latter service, and that there are prospects that further support is available in the future. I consider the Respondent correct in its contention that QXVB has not undertaken offence-specific rehabilitation. This is of some significance given the particular nature of his primary instances of offending.
The evidence overall indicates that QXVB would face some quite substantial challenges were he to return to the community. There is some, albeit limited, evidence that one relative has offered to provide support. In this matter, a substantial amount rests on this particular individual, and I did not have the benefit of hearing directly from them, or other family members about the strength of their willingness or capacity to provide a range of critical forms of assistance. Critical in the sense that QXVB would need to secure accommodation as well as support with employment, given his very limited employment and education history.
I consider it appropriate to place very limited weight on the written and oral evidence of Mr G. I can place some weight on the fact that QXVB has engaged in Bible study and that this may offer some assistance to him in terms of contributing to establishing himself, either in general, or by way of attempting to engage further with the Jehovah’s Witnesses. I must observe, however, that QXVB’s conduct in detention does not appear to have been ameliorated as a result of his engagement with this faith. I cannot discount the possibility that his family are indeed also members of this community, but I did not read this in their evidence, and did not hear from them.
I accept, therefore, the Respondent’s contention that QXVB’s prospects for rehabilitation are weakened by the absence of a solid familial or social network. I do not discount the possibility that his family will in fact be there to support him. However, given the apparent family challenges that preceded his return to South Sudan, his offending since then, and the general lack of evidence of direct support from the hearing and the material, I place only limited weight on their capacity to buttress QXVB in the face of the evident challenges he will face.
There is a single formal risk assessment before me. I accept that whilst QXVB has been assessed as being at low risk of reoffending, the circumstances of this evaluation have not been elaborated, and it occurred some time in the past now. In any event, the applicant’s record of misconduct in detention includes some instances of violence. Accordingly, I put quite limited weight on this record.
CONCLUSION
I consider the evidence overall to demonstrate that QXBV poses a real risk of causing significant harm to the Australian community. I understand the recent Full Court decisions I have cited to have maintained the position, grounded in the reasoning in WKCG, that a decision as to danger does not require an assessment to the level of harm being probable. Here, in particular, I consider that the evidence of QXVB’s challenges in maintaining stable mental health in the face of uncertain informal and formal supports in the community, provide an inadequate framework to mitigate the risk he poses to the community, and that the harm that he might cause is substantial.
DECISION
For the reasons given above the Tribunal affirms the decision under review.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

....................[sgd]....................
Associate
Dated: 5 July 2023

Date(s) of hearing: 19 January, 13 February and 15 February 2023

Applicant: Self-represented

Solicitors for the Respondent: Ms Ada Wong, Mills Oakley Lawyers

[2023] AATA 1970

5 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	19 January, 13 February and 15 February 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Ms Ada Wong, Mills Oakley Lawyers