SDCX and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1852

SDCX and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1852 (19 September 2025)
Applicant:SDCX
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3320

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:19 September 2025

Decision:The Tribunal affirms the decision under review.

..............................[SGD].........................................
Senior Member A. Nikolic
Catchwords
MIGRATION – refusal of Class XA (subclass 866) Protection Visa – citizen of the Kingdom of Saudi Arabia – criminal record in Australia – attempted rape – sexual assault – 1951 Convention Relating to the Status of Refugees – s 36(1C) of Migration Act 1958 (Cth) –Applicant has been convicted by final judgment of a particularly serious crime – whether Applicant is a danger to the Australian community – non-exhaustive factors considered –Tribunal is satisfied Applicant is a danger to the Australian community – disentitling provision at s 36(1C)(b) of the Act enlivened – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
DMQ20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FCAFC 84
DQU16 v Minister for Home Affairs (2021) 95 ALJR 352
George v Rockett (1990) 93 ALR 483
Green v Minister for Immigration and Citizenship (2008) 100 ALD 346
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1
Maxwell v R (1996) 184 CLR 501
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairsv Singh (2002) 209 CLR 533
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
RJE v Secretary to Department of Justice (2008) 21 VR 526
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (together “the Refugee Convention”)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) align="left">REASONS FOR DECISION
Senior Member A. Nikolic
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision to refuse his application for a Protection (subclass 866) Visa (‘Protection Visa’).
The hearing was held by videoconference at the Tribunal’s Melbourne Registry on 2 September 2025. The Asylum Seeker Resource Centre (‘ASRC’) has represented the Applicant since 2022,[1] but he was self-represented at this hearing. The Respondent was represented by Mr Adam Cunynghame, a solicitor with Sparke Helmore Lawyers.
[1] Exhibit R1, 17, 57, 96, 143-187, 206-208,
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND FACTS
The Applicant is a 44-year-old citizen of the Kingdom of Saudi Arabia (‘Saudi Arabia’) and one of five children.[2] His mother, siblings, and other relatives continue to live overseas.[3]
[2] Exhibit R2, 4.
[3] Exhibit R1, 210.
The Applicant’s extensive overseas travel includes completion of tertiary study in the United States of America (‘USA’).[4] He first arrived in Australia on a Tourist Visa in September 2022.[5] Approximately eight weeks later, on 7 November 2022, he was assisted by the ASRC to lodge a Protection Visa application.[6] He stated that he had not previously applied for refugee status or protection.[7] The Applicant also stated he was convicted of an offence in 2022 while living overseas, for which he received a sentence of ‘18 months’.[8] It was submitted on his behalf that he is unable to access overseas records about this.[9]
[4] Ibid, 209; Exhibit R2, 25 [9], 27 [28].
[5] Exhibit R1, 19.
[6] Ibid 38-70.
[7] Ibid 47.
[8] Exhibit R1, 52.
[9] Ibid 207 [11].
The Applicant’s crimes in Australia commenced soon after his arrival and include violence, dishonesty, and breaches of conditional liberty.[10] His most serious offending occurred in 2024 after release from an earlier period of imprisonment. This resulted in convictions that include attempted rape and sexual assault.[11] He was sentenced to 28 months imprisonment for the former and 14 months for the latter.[12] His total effective sentence was 2 years and 7 months. He remains imprisoned to the present day.
[10] Ibid, 211-213, 218-226.
[11] Exhibit R2, 34-42.
[12] Ibid 1-2.
Correspondence passed between the Respondent and the ASRC in 2023 and 2024 about the Applicant’s protection claims.[13] In 2024 while imprisoned, he attended a video interview with the Respondent, assisted by the ASRC.[14]
[13] Ibid 59, 188 [1], 187, 206-207.
[14] Ibid 33, 173, 182, 197, 199, 206 [4].
On 3 April 2025, a delegate of the Respondent refused the Protection Visa application. Although the Applicant was found to satisfy the definition of a refugee at s 5H(1) of the Migration Act 1958 (Cth) (‘the Act’), the delegate found he did not satisfy 36(1C)(b).[15] This is a disentitling provision that is enlivened if a person has been convicted by final judgement of a particularly serious crime and is a danger to the Australian community.
[15] Exhibit R1, 15-37.
On 28 April 2025, the Applicant asked the Tribunal to review the visa refusal decision.[16]
[16] Ibid 5.
On 21 May 2025, the Tribunal held a case management hearing to issue scheduling orders for hearing dates and submission of documents. The following then occurred:
(a)The Tribunal provided the Applicant with contact details for potential sources of pro bono assistance although he advised the ASRC may still represent him. He refused an example of what a Statement of Facts, Issues, and Contentions (‘SFIC’)[17] might contain and said he did not intend to call witnesses or submit further documents.
(b)Provision was nevertheless made in scheduling orders for the Applicant to provide any other documents by 18 July 2025 and a response to the Respondent’s materials by 28 August 2025. He subsequently did neither.
(c)The Tribunal contacted the Applicant through prison staff on 22 July 2025 to confirm his intentions. An email from the prison on the same day confirmed he did not wish to lodge any further documents.
[17] A SFIC is comparable to a pleadings document in a court proceeding. It serves to identify / narrow the issues in dispute and helps ensure both sides are aware of each other’s case.
JURISDICTION, THE REFUGEE CONVENTION AND LEGISLATIVE FRAMEWORK
The Tribunal’s jurisdiction to review a decision refusing to grant a protection visa under s 65 of the Act, relying on either s 36(1C)(b) or s 36(2C)(b)(ii), is enlivened by s 13 of the Administrative Review Tribunal Act 2024 (Cth) and ss 500(1)(c)(i)-(ii) of the Act.
Australia is a signatory to the 1951 Convention Relating to the Status of Refugees (‘the Convention’), to which it acceded on 22 January 1954. Article 33 of the Convention states:
Article 33 prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Aspects of the Act reflect a compromise between humanitarian objectives in a multilateral context and Australia’s bilateral interests as a contracting state.[18] Section 36(1C), for example, codifies the Convention’s exclusionary criteria at Article 33(2) into Australian law.[19] As explained in the Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth):
New subsection 36(1C)…provides for an exception to the principle of non-refoulement in Article 33(1)…As such, a person who is captured by new subsection 36(1C) will not engage Australia’s non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.[20]
[18] Minister for Immigration and Multicultural Affairsv Singh (2002) 209 CLR 533, [94]-[96] (Kirby J); Applicant DQU16 v Minister for Home Affairs (2021) 95 ALJR 352 at 357 [12].
[19] At Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (No 135 of 2014).
[20] Explanatory Memorandum at [1236].
Section 36(1C) enables the Australian Government to refuse a protection visa to a person who ‘poses a danger to Australia and its people’.[21] Under s 36(2C)(b)(ii) of the Act, the same disentitling provision applies to complementary protection criterion at s 36(2)(aa). A person is taken not to satisfy either if a decision maker considers on reasonable grounds[22] that the person, ‘having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community’.[23]
[21] KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1, [51] (Bromberg J).
[22] In George v Rockett (1990) 93 ALR 483 at [488], the High Court held that this ‘requires the existence of facts which are sufficient to induce that state of mind in a reasonable person’.
[23] The Act, s 36(1C)(b); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, [18].
The term ‘particularly serious crime’ is defined at s 5M of the Act to include a ‘serious Australian offence’ at s 5(1). This includes crimes involving violence against a person that are punishable by imprisonment for a maximum or fixed term of not less than three years.
ISSUE
The Applicant has been convicted by final judgement of attempted rape and sexual assault. These are serious Australian offences carrying maximum sentences exceeding three years.[24] He has therefore been convicted of a particularly serious crime. What remains to be determined is if he is a danger to the Australian community.
EVIDENCE
[24] Under ss 40 and 42 of the Crimes Act 1958 (Vic), sexual assault carries a maximum sentence of 10 years and attempted rape has a maximum of 15 years.
Documentary evidence
A Hearing Book numbering 934 pages was taken into evidence,[25] as was an 831-page bundle of documents obtained under summons.[26] The Tribunal has considered documents previously lodged on the Applicant’s behalf by the ASRC and other lawyers.[27]
[25] Exhibit R1.
[26] Exhibit R2.
[27] Exhibit R1, 10, 20-22, 86-96, 206-210; Exhibit R2, 3-11, 18-30.
Oral evidence
The Applicant was the only witness. An interpreter in the Arabic language was provided at his request and remained throughout the hearing. He chose, however, to speak in English. Prior to the commencement of his evidence, the Tribunal explained the hearing process, key issues to be decided, and his privilege against self-incrimination. The Tribunal is satisfied he understood this. The Applicant’s oral testimony is summarised as follows:
(a)The Applicant gave evidence under affirmation and confirmed previous advice that everything he intends to rely upon is contained in Exhibits R1 and R2.
(b)The Applicant referred to difficult personal issues while growing up, including his bisexuality and alcohol abuse. He drank alcohol since his teenage years. His family had money, and his father supported him financially. This enabled the Applicant to travel to nearby Gulf countries to drink alcohol where rules were not as stringent.
(c)The Applicant said efforts in Saudi Arabia to address his addictions were ineffective because ‘they don’t believe in psychology much’. He recalled ‘rehab’ on six occasions in Saudi Arabia for up to three months and once in Kuwait. He claimed to have been sober for up to three years. The Applicant considers the treatment he received was insufficient because the facility was mainly for those suffering heroin addiction. He claimed no psychiatrists or psychologists were present but a representative from Narcotics Anonymous (‘NA’) spoke with patients.
(d)The Applicant recalled relapses after rehabilitative stays, which led him to conclude that alcohol was not his main problem. He attended NA and Alcoholic Anonymous (‘AA’) meetings in multiple countries since 2005 where some participants were sober ‘for a long time’, got married, and felt ‘serene’. The Applicant said he is ‘not like them’, however, because he ‘can’t stop drinking’. He recalled overseas visits, including to Indonesia and Malaysia where he was assaulted while drunk, had property stolen, and came to police attention. He said police treated him poorly in these countries because they believe Saudi Arabian men only visit ‘to fuck their women’.
(e)The Applicant said he completed an undergraduate degree in the USA funded by his father. He recalled drinking heavily but lived his life with greater freedom. Upon return to Saudi Arabia, the Applicant said he felt depressed, which escalated his drinking. He worked for his mother’s business and opened his own store about 15 years ago but became ‘sicker’ and the business failed. He recalled spending time in Somalia and tried new relationships. He also smuggled alcohol when returning from overseas travel. The Applicant said he felt ‘sick…angry...lonely…depressed’. He later opened other stores but claims these failed during the COVID pandemic. The Applicant said he became estranged from his family because of alcoholism and has not spoken with his sisters for about 17 years. He said there has been no contact with his mother since he arrived in Australia in 2022.[28]
[28] Ibid 41.
(f)The Applicant said one of the reasons he applied for ‘asylum’ in Australia was to access ‘medical rights’. He found life here was ‘triple or four times’ the cost of Gulf countries and recalled his money ran out fast. He referred to homelessness and feeling disconnected from those who were healthy and working, which caused him to be ‘angry’. He recalled being banned from a ‘gambling place’.
(g)The Applicant claimed that conditions suffered since childhood ‘make [him] drink’. In 2024 he was diagnosed with Post-Traumatic Stress Disorder (‘PTSD’), Alcohol Dependence Disorder (‘ADD’), Obsessive Compulsive Disorder (‘OCD’), and Major Depressive Disorder (MDD’). The diagnosing psychologist was commissioned by counsel in one of his criminal proceedings.[29] The Applicant said this was the first time he became aware of his ‘illness’.
(h)The Applicant recalled ‘many’ efforts in Australia to address his alcoholism. This included an Odyssey House placement about 8 months after arrival. The Tribunal notes this was Court-ordered after his May 2023 convictions for recklessly causing injury, throwing a missile to endanger a person, aggravated assault of a female, and other crimes.[30] He also sought placements at several hospitals. The Applicant described support received in Australia as ‘beautiful’ and claimed to have been sober for six-months after the Odyssey House program. He considers the support he has received is insufficient because he relapsed. The Applicant said medications made ‘sleep a lot’ and he was limited to charitable support because of no funds.
(i)The Applicant said the Salvation Army, refugee support groups and others gave him food and accommodation. He attributed failed to maintain stable accommodation as resulting from his mental health conditions. The Applicant related a story about two elderly Australian women in their 70s ‘just like [his] mum’, who took him into their home after a period of ‘rehab’ and provided accommodation and food. Both women later took out intervention orders (‘IVO’) against him, the last of which only ceased in April 2025.[31] The Applicant explained their support was conditional on sobriety and not bringing trouble to their home. He relapsed, however, stole alcohol from nearby stores, and was found by police drinking it at their residence. The Applicant claimed, without corroboration, that these women will still do anything for him. The Applicant also recalled an occasion while sober, when he met grandparents with a grandchild in a restaurant. They gave him $50 for food, a blanket and other support. He relapsed and spent the $50 on alcohol.
(j)In terms of his crimes, the Applicant claimed he never stole from or hurt individuals ‘on the streets’. Without alcohol, however, he felt like he was ‘going to die’, so he stole from shops. He referred to a retail group in Australia as: ‘a rich company that makes billions’, stating: ‘You don’t harm a rich company by taking…alcohol or food’.
(k)The Applicant said he felt ‘sick’ for a lot of his stay in Australia but became ‘very sick’ around the time he received a ‘120-day sentence’. The Tribunal inferred this was a reference to an aggregate 136-day sentence received in April 2024 for two counts of assaulting an emergency worker on duty, two counts of committing an indictable offence on bail, two counts of contravening bail, and three counts of theft.[32]
(l)At the time of the attempted rape and sexual assault, the Applicant said he had only been out of prison for ‘14 days’ during which he was ‘stealing alcohol and drinking’. Following arrest, he could not believe what police alleged until he saw the video of him attacking a lone young female shopworker. He claimed to have no memory of this and recalled thinking: ‘why am I always struggling – always sick’. The Applicant said he feels sorry for the victim and if this had happened to his sister, he would want the perpetrator imprisoned and ‘kicked out’.
(m)The Applicant referred to rehabilitative efforts in prison. He also agreed during cross-examination that he returned positive tests for Buprenorphine,[33] claiming ‘everybody uses it – it’s everywhere’. When asked why he used it, the Applicant did not know. When pressed, he said it’s because he is an ‘alcoholic… a drug addict’. He claimed to have used Buprenorphine ‘four or five times’, most recently in May 2025. The Applicant also accepted the accuracy of custodial reports about him running up drug debts and receiving threats from inmates.
(n)When asked about potential sources of support in Australia, the Applicant said an organisation called Muslim Connect and ‘some Somali guys’ said they would assist with accommodation. To qualify for some support, however, he needs ‘to be on Centrelink’. There is no statement from Muslim Connect or the men he referred to. When asked how he would provide for himself, the Applicant said he wants to qualify for Centrelink and intends calling his mother in Saudi Arabia, who previously sent him money. She is almost 80 years’ old now and he does not know if she can help.
(o)The Applicant said he is fortunate to be in the ‘best country in the world’, will never touch alcohol again, and wants to make a positive contribution. If he receives a visa, work rights and required healthcare support he intends seeking employment in a coffee shop, restaurant, or clothing store. He also wants to be supported by a psychologist who can tell him: ‘take this medication, do this, do that, and everything will be OK’. The Applicant aspires to ‘go somewhere hot’ and referred to the Gold Coast. When asked if he knows anyone there he responded: ‘No’. When asked if Muslim Connect could help with accommodation on the Gold Coast, the Applicant replied: ‘If I get…work rights, I won’t need Muslim Connect’. The Applicant also aspires to open a ‘fashion line’ and a ‘camping rehab’ facility on the Gold Coast. His vision for the latter is that recovering alcoholics and drug addicts can pitch a tent and receive long-term treatment for their needs.
(p)The Applicant said the Australian Government recently ‘signed an agreement with Nauru’ and he would relocate there if required support was provided. He is unsure if he would choose to remain there, but does not want to return to Saudi Arabia, stating: ‘I have been everywhere around the world – just find me a place’.
[29] Ibid 194 [45].
[30] Exhibit R2, 723.
[31] Ibid 494.
[32] Ibid 32.
[33] Buprenorphine is a prescription drug used to treat opioid dependence.
DANGER TO THE COMMUNITY

There is no definition in the Act about what constitutes a danger to the community. In SLGS[34] Justice Jackson construed s 36(1C)(b) of the Act with reference to DMQ20:[35]
The construction of s 36(1C)(b) that emerges from DMQ20
[82] To the extent that there are differences between the construction of s 36(1C)(b) of the Migration Act favoured by Rares J in DMQ20 and the construction favoured by Thomas and Snaden JJ, it is the approach of the plurality that must be followed. In my view, their Honours held ‘danger’, as used in s 36(1C)(b), to be a word of ordinary English which is to be applied to all the facts and circumstances of the case and which is not susceptible of more precise definition. It would be consistent with their Honours’ approach for the decision maker to consider whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates.
[83] As to the object of the danger, it is the Australian community conceived of as the community as a whole and/or any person or persons who are part of it.
[84] On any view, in assessing these matters, the decision maker may consider the particularly serious crime of which the visa applicant has been convicted and the risk that he or she will offend in that way in the future. More broadly, the risk of repetition of other past conduct may also be considered.
[85] In my respectful view, none of this is inconsistent with the approach that Tamberlin DP took in WKCG. [36] The list of factors which the Deputy President set out in that decision remains useful, provided it is approached, not as a ‘test’ or a mechanical checklist, but as a guide to assessing the fundamental question of fact.
(Emphasis added.)
[34] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104, [82]-[85] (Jackson J with Snaden and Rares JJ agreeing).
[35] DMQ20 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FCAFC 84.
[36] WKCG and Minister for Immigration and Citizenship [2009] AATA 512; 110 ALD 434, [25]-[26] and [29]-[31].
In Guo,[37] a majority of the High Court observed that a person’s past actions ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded’, or at the other extreme ‘may border on certainty’. Maxwell P and Weinberg J have observed:[38]
Predicting whether a particular person will commit a criminal offence in the future is notoriously difficult…the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion … The necessary expertise combines the ability to make a qualitative assessment of an individual and the ability to utilise the available quantitative risk assessment instruments.
One thing is clear. Judges, including experienced criminal judges, have no such expertise. Neither the conduct of criminal trials nor the sentencing of offenders requires judges to have, or equips them with, the ability to assess the likelihood that an offender will re-offend…
(Footnotes removes).
[37] Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559, 574-5.
[38] RJE v Secretary to Department of Justice (2008) 21 VR 526 [16][[17] (Maxwell P and Weinberg J]).
The Tribunal respectfully adopts this reasoning as applying equally to the Tribunal in a merits review context. There is no expert opinion in the current case about recidivism risk and the Applicant’s claims about not constituting a danger rest on assertion alone.
Balancing or proportionality test?
In relation to risks arising from possible refoulement the High Court stated in SZOQQ:
No question arises as to the need to take into account the proportionate risks to a claimant and the risks to the country in which refugee status is sought. The ordinary meaning of the terms of Art 33(2) simply requires an assessment to be made as to whether a person constitutes “a danger to the community of that country”...[39]
[39] SZOQQ v Minister for Immigration and Citizenship (2013) 251 CLR 577 [16].
Discretion?
Pursuant to s 65(1)(b) of the Act, no discretion arises if the Tribunal finds a person convicted of a particularly serious crime is a danger to the Australian community. In these circumstances the reviewable decision must be affirmed.
Summary: ‘danger to the community’
The statutory concept of what constitutes ‘a danger’ to the community centres on ‘probability and consequence’ of harm.[40] Relevant factors can include past crimes and other conduct, sentences, remorse, rehabilitation, protective factors, and recidivism risk. Commission of a particularly serious crime is the starting point, followed by a prospective analysis to determine if reasonable grounds exist to consider a person poses a danger to the community. Any framework adopted is non-exhaustive, guides assessments about questions of fact, and is not a rigid test nor applied mechanistically. A person is a danger if:
(a)the risk of harm they pose exceeds that of ordinary personal interactions;
(b)the harm caused if the danger is realised is not inconsequential and is of a physical or psychological nature; and
(c)would affect any member of the Australian community.
CONSIDERATION: IS THE APPLICANT A DANGER TO THE COMMUNITY
[40] DMQ20, [107].
Addiction, offences and misconduct
The Applicant has a long history of addiction.[41] He reports depression and anxiety for most of his life,[42] persistent alcoholism, and drug use.[43] He referred to judicial punishment overseas and multiple rehabilitative attempts.[44] His evidence is that he has suffered multiple undiagnosed psychological conditions for much of his life, which were first diagnosed in Australia in 2024, and that this is a significant contributory factor to his offending.[45]
[41] Exhibit R1, 88 [15], 90 [35], 92 [50], 102-3, 191-2 [28]-[29], [33], 35], 194-6 [43]-[48] [50]-[51] [55], 201 [12] and [19]; Exhibit R2, 21 [34], 25 [13], 28 [29], 232, 724, 738, 740, 761.
[42] Exhibit R2, 761.
[43] Exhibit R1, 191 [28], 205 [38]; Exhibit R2, 6 [3.11].
[44] Exhibit R1, 193 [38].
[45] Ibid 21, 188; Exhibit R2, 10, 28 [33]-[34].
During the Applicant’s three-year stay in Australia there are reports of him being a ‘chronic alcoholic’ who ‘drinks to black out most days’ and ‘does crazy things’.[46] To the extent his oral testimony conflicts with convictions, the Tribunal prefers the latter. His guilty pleas constitute admission to and acceptance of all charges.[47] It is also impermissible to impugn the essential basis of court findings.[48] No weight is placed, however, on charges dismissed under s 76 of the Sentencing Act 1991[49] (Vic) or that may be pending.[50]
[46] Exhibit R1, 99, 192 [31]; Exhibit R2, 495.
[47] Maxwell v R (1996) 184 CLR 501, [19].
[48] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–5; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J).
[49] This provides that even if a court is satisfied that a person is guilty of an offence, it can dismiss the charge without recording a conviction.
[50] Exhibit R1, 32-34; Exhibit R2, 723.
The Applicant’s most serious offences occurred in April 2024. It is sufficient to note he attacked a young female shop assistant who suffered a terrifying ordeal from ‘significant and repeated acts of violence’. He was drunk[51] and his motivation appears to have been sexual gratification. A Victim Impact Statement refers to the victim’s continuing fears, insecurity, and isolation, with adverse impacts on her mental health, ability to work, and relationships.[52] There is no evidence the harm suffered by the victim is other than enduring.
[51] Exhibit R2, 19 [9].
[52] Exhibit R2, 12-13 [3]-[5].
Custodial sentences are a last resort and the most severe sanction available.[53] The imposition of an effective sentence of 2 years and 7 months imprisonment reflects the objective seriousness of the Applicant’s crimes.
[53] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
The Applicant was assessed in June 2024 as scoring in the ‘very high-risk range on the Alcohol Use Disorders Identification Test’.[54] Custodial reports refer to him engaging in misconduct.[55] The Applicant concedes he used illicit Buprenorphine while imprisoned but does not know why. He has failed drug tests, most recently in May 2025,[56] incurred drug debts, and received threats from other prisoners for non-payment.[57]
[54] Exhibit R2, 742.
[55] Ibid 191-192, 204, 213, 223, 230-231, 475, 750 [11-12/07/2024]; 750, 756, 763.
[56] Ibid 200, 218.
[57] Ibid 143, 167, 184, 198, 208, 215-216, 223-224, 532, 534, 616-617.
Mitigating circumstances?
Factors that may lend support to the Applicant’s claim about not being a danger to the community include his claimed remorse and insight since imprisonment. The Tribunal notes he entered early guilty pleas.[58] During the hearing he also expressed some insight about the state of his mental health and adverse consequences experienced by the victim. The persuasiveness of his claims, however, is diminished by the frequency of his offending, its increasing seriousness, and instances of custodial misconduct.
[58] Ibid 15 [14]-[15], 18 [4], 28 [32].
The Applicant’s references to contrition routinely diverted to his personal circumstances. This includes after running out of money in Australia. Some of his evidence bordered on justifying crimes like alcohol theft as a survival necessity, claiming larger retailers were not greatly harmed. This detracts from the persuasiveness of his claims about insight, remorse, and rehabilitative progress.
The Tribunal acknowledges the Applicant’s longstanding and unresolved struggles with addiction, personal issues,[59] and mental health.[60] These are also relevant to his recidivism risk. It is clear he has significant and unmet treatment needs.[61] Past treatment and rehabilitation has not had enduring effects. He has also repeatedly acted in ways that make his problems worse. This includes using illicit drugs in prison, medication non-compliance,[62] and claiming to rely on ‘faith…and religion’ for his mental health.[63] He is reported as choosing not to attend some rehabilitative courses because they were too ‘basic’.[64]
[59] Exhibit R1, 88 [15], 196 [57.g]; Exhibit R2, 475 [07/06/2024], 491 [21/01/25].
[60] Exhibit R1, 194 [45].
[61] Ibid [16].
[62] Exhibit R2, 750, 756, 763.
[63] Ibid 742, 747.
[64] Ibid 230-231, 471, 473, 476-477, 742, 748, 752, 758-759.
The rehabilitative certificates dated May 2023[65] preceded the Applicant’s release from an earlier period of imprisonment yet he committed even more violent crimes. His attitude to and motivation for treatment on current facts is unpersuasive and weighs against his claims about not constituting a danger to the community. His reintegrative and future treatment plans are general, vague and aspirational.
[65] Ibid 356-359.
There is scant evidence of protective factors such as stable accommodation, employment, family / prosocial support, or community engagement. Counsel at his most recent criminal matter submitted that the Applicant was homeless and ‘stealing food and alcohol to survive’.[66] Custodial records refer to him requiring extensive support, including housing, if released.[67] All the Applicant’s family live overseas and he reports estrangement from them.[68] Despite having opportunities to submit statements and other evidence about his claimed support in Australia and overseas, the Applicant failed to do so.[69]
[66] Ibid 494-496; Exhibit R1, 20 [32].
[67] Exhibit R2, 477, 481, 567, 603, 671.
[68] Ibid 19 [19], 20 [32], 494, 825.
[69] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [40]; Green v Minister for Immigration and Citizenship (2008) 100 ALD 346, [40] (Tamberlin J).
CONCLUSION: IS THE APPLICANT A DANGER TO THE COMMUNITY
The Applicant’s life is contextualised by persistent addiction since a young age, numerous rehabilitative attempts,[70] and inevitable relapse after brief periods of abstinence. This cycle has been repeated during his three years in Australia, coupled with increasingly serious crimes. His offending is not isolated or attributable to youth. Corrective penalties and rehabilitative opportunities have not motivated meaningful change to conduct that reflects a disregard for the law and the rights of others. The Applicant’s rehabilitative claims are unpersuasive given his use of illicit drugs and other misconduct in prison.
[70] Exhibit R2, 6 [3.12], 25-26 [16].
The Applicant has received considerable taxpayer-funded and other support in Australia. This includes a court-ordered program for months at Odyssey House,[71] from hospitals, and the ASRC. Generous support from two elderly women who took him into their home was followed by relapse and IVOs taken out against him. Any support he received has not ameliorated the Applicant’s tendency to relapse and commit increasingly violent crimes.
[71] Exhibit R1, 102, 193 [41], 207 [12], 209.
The Tribunal is not satisfied the risk posed by the Applicant can be safely managed in the community. Even if a comprehensive support framework was available, little comfort can be drawn from his past failure to leverage assistance and change the course of his life. His rehabilitative prospects on current facts are poor.
The Applicant has been convicted by final judgement of a particularly serious crime. There are reasonable grounds to consider he poses a high and unacceptable risk of committing further physical or sexual violence that may cause serious harm. He constitutes a danger to the Australian community within the meaning of the Act.
DECISION
It follows that s 36(1C)(b) of the Act is enlivened and the reviewable decision affirmed.

40. I certify that the preceding thirty-nine (39) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 19 September 2025

Date of hearing: 2 September 2025

Advocate for the Applicant:
Applicant by video

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Adam Cunynghame

Sparke Helmore Lawyers