SFPH and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 784
•10 June 2025
SFPH and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 784 (10 June 2025)
Applicant:SFPH
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10456
Tribunal:General Member S. Fenwick
Place:Melbourne
Date:10 June 2025
Decision:The Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the finding that the Applicant is not a danger to the Australian community.
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General Member S. Fenwick
Catchwords
MIGRATION – refusal to grant protection visa – whether convicted of particularly serious crime – whether danger to the Australian community – substantial criminal history – offences of violence and sexual assault – seriousness and nature of offending – risk of reoffending – decision set aside and remitted
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Cases
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434
Statement of Reasons
BACKGROUND
SFPH applied on 16 December 2024 for review of the decision of a delegate of the Respondent (‘the Minister’) dated 10 December 2024 refusing the grant of a Protection visa. The Applicant was considered to meet the essential qualifying criteria, however, it was determined that he had been convicted by final judgment of a particularly serious crime, and was a danger to the Australian community. These are findings that prevent the grant of a Protection visa under s 36(1C) of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant is 39 years old and a national of Afghanistan. He arrived in Australia in 2003 on a Special Humanitarian visa after living for some time in a refugee camp in Pakistan, his father having been earlier killed in Afghanistan. Court appearances commenced within a relatively short time after SFPH’s coming to Australia. They continued with some regularity until he was sentenced in 2018 on multiple charges to a total effective term of imprisonment of three years and ten months. These charges are said by the original decision-maker to amount to particularly serious crimes.
The Applicant’s imprisonment also led to the mandatory cancellation of his visa. The visa was reinstated by decision of the Administrative Appeals Tribunal in 2024, leading to his release, until the decision was set aside by the Minister acting under the ‘personal powers’ of s 501BA of the Act. Later in 2024, the Applicant unsuccessfully applied for a Protection visa. SFPH was then released into the community from immigration detention on a Bridging R visa (BVR) in late 2024.
The Applicant was represented before the Tribunal and lodged:
(a)a Statement of Facts, Issues and Contentions (ASFIC) (together with 17 attachments, including a Statutory Declaration of SFPH, dated 18 March 2025);
(b)a SFIC in Response (Reply) (together with two attachments, including a Statutory Declaration of SFPH, dated 22 April 2025);
(c)a Statutory Declaration of the Applicant’s partner, Ms A, dated 30 April 2025; and
(d)an undated Letter of employment (Exhibit A1).
The Respondent lodged documents under s 23 of the Administrative Review Tribunal Act 2024 (Cth) (T), a Statement of Facts, Issues and Contentions (RSFIC), and a bundle of Supplementary T documents (ST).
In addition to the evidence given at the hearing by SFPH, evidence was given by his sister, Ms R, and his partner, Ms A.
LEGISLATION
Section 36 of the Act sets out the various criteria for grant of Protection visas. This matter is not concerned with the positive findings required with respect to refugee status or to a real risk of harm, but the exclusionary criteria. Relevantly, it is a criteria that a person must not be one whom 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’ (s 36(1C)(b)). A similarly worded exclusion applies in respect of persons who may face a real risk of harm (see sections 36(2)(aa) and (2C) of the Act).
The Act further provides that a ‘particularly serious crime’ includes ‘a serious Australian offence’ (s 5M(a)). This phrase is defined, in turn, to mean (among other things) an offence that involves violence against a person, and is punishable by imprisonment for not less than three years (s 5).
Besides the threshold condition of particularly serious crime, the focus of the Act in this context is upon the issue of danger. This term is not defined, but has been addressed in relevant authorities. The starting point is the factors identified in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 [26] (WKCG), which have been repeatedly endorsed. I cite for convenience the summary of factors from the RSFIC [55]:
(a)the seriousness and nature of crimes committed;
(b)the length of sentence imposed and any mitigating or aggravating circumstances;
(c)the extent of the criminal record as a whole, the nature of prior crimes and the period over which they took place; and
(d)the risk of reoffending, recidivism, and likelihood of relapsing into crime.
It was also said in WKCG that there must be a real or significant risk or possibility of harm [31]. On the question of risk, it has been held more recently, in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104, that the concept of danger ‘combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates’ [82].
ISSUES
The first issue arising is to determine that the Applicant has been convicted by final judgment of a particularly serious crime. Both parties accept that this issue is to be resolved against SFPH (ASFIC [6]; RSFIC [47]; G58).
In September 2018, the Applicant was convicted of several offences at a County Court, as identified from his national criminal history check (SG5): indecent assault; sexual assault; common law assault (two charges); and robbery. The sentencing remarks in the County Court demonstrate that each offence carries a penalty in excess of that provided for in the Act (SG4 [4]). I do not appear to have before me submissions concerning the other qualifying element, that these are crimes of violence. However, it is evident from the remarks of the sentencing judge that the offences of common law assault arose from SFPH punching victims to the face multiple times in two separate incidents (SG4 [13]).
On this basis, I am satisfied that the Applicant has been convicted by final judgment of a particularly serious crime within the meaning of the Act.
Accordingly, I must now consider whether SFPH is a danger to the Australian community.
SERIOUSNESS AND NATURE OF OFFENDING
Evidence
I will first return to the sentencing remarks to outline the nature of SFPH’s most recent offending (SG4). The judge broadly dealt with two indictments relating to three separate incidents, and the Applicant pled guilty to all relevant charges.
The first offending in time took place in mid-2014 in the context of SFPH meeting the female victim via a dating site. Although aged 16, she identified herself as 19, but informed the Applicant she was 17 years old. After agreeing to meet, SFPH picked the victim up in his car and then moved on to a multi-level car park. Here, after some kissing and touching, which the victim was reluctant to participate in, the Applicant exposed himself and forced the victim’s head into his crotch where his penis bumped into her face. She did not consent to this conduct and it was later reported to police, however, she ultimately did not wish the matter to proceed.
This investigation was revived following the second incident in time, being March 2016. In this incident, SFPH made contact with the 18-year-old female victim via Tinder who agreed to meet. After meeting up at a café, during which the victim indicated it was not her intention to have sexual contact, the two entered the Applicant’s car with the plan to see a movie. In the time prior to its commencement, SFPH drove to a reserve and kissing ensued, but the Applicant also ripped open the victim’s tank top. The Applicant opened his pants and exposed himself, and grabbed the victim’s head forcing it toward his penis. After the victim resisted, he punched her two-to-three times in the face, then dropped her off where the meeting started. After a committal on an indictment, including more serious charges, the matter resolved to a plea on the remaining charges.
The third incident in time was a robbery and assault in late 2016 in relation to the sale of a car by the victim. The buyer of the car was a friend of the Applicant and it appears that SFPH took it upon himself to pursue the victim, apparently due to the condition of the vehicle. In three events related closely in time, the Applicant punched and threatened the victim outside his home, later again punched the victim at his home and threatened him, and with others threatened a friend of the victim with weapons, ultimately forcing the victim to hand over the proceeds of the sale in cash.
In relation to the two instances of sexual offending, SFPH was sentenced to three separate terms of imprisonment, two of 20 months, and one of 12 months. In relation to the robbery incident, SFPH was sentenced to two terms of imprisonment, one of 21 months, and one of six month. The Applicant was ordered to serve a minimum before parole of two years and five months, and without the guilty plea, the total effective sentence would have been six years, with a non-parole period of four years. SFPH was also placed on the sex-offenders register for eight years.
The sentencing judge took a number of matters into account when arriving at the above outcomes:
(a)SPFH experienced numerous family losses in dramatic circumstances and experienced a very difficult time living in refugee camps in Pakistan;
(b)he was unable to enrol in school, but gained a fairly good command of English, and on arrival in Australia completed school to Year 12, and an apprenticeship;
(c)the Applicant experienced a long term relationship with a schoolfriend and briefly dated the sister of the first victim, and it is possible that she became pregnant and gave birth to a child;
(d)SFPH was stabbed in 2012 after interrupting a break-in, and was subsequently introduced to methamphetamine, which ceased after 12-18 months, but was also a regular cannabis user;
(e)due to his past, the Applicant was diagnosed as suffering from depression, anxiety and PTSD, and the psychologist was also of the opinion that SFPH was remorseful, but had some difficulty taking full responsibility;
(f)the main precipitant to the offending appeared to be a combination of pre-existing mental health issues, with some additional recent emotional stress, and SFPH was assessed as at low risk for reoffending with sexually based offences; and
(g)with a good history of employment, in all the circumstances, SFPH was found to have reasonable prospects of rehabilitation.
SFPH has also appeared in Magistrates’ Courts on 12 occasions between 2004 and 2016 (SG5). A diverse series of charges across 2004-2006 resulted in no conviction, but fines were imposed in some instances. There are otherwise in excess of thirty charges which include among them:
(a)crimes of violence being arson, recklessly cause injury, make threat to kill, and unlawful assault;
(b)property offences including obtain property by deception, burglary, and theft;
(c)conduct offences including fail to state name and address, offensive behaviour, make false document, and stalking;
(d)driving offences including exceed prescribed concentration, unlicensed driving, drive in breach of licence condition, and breach alcohol interlock; and,
(e)other breach offences including multiple breaches of community based orders, and contravene interim personal safety order.
For this other offending, SFPH received almost exclusively non-custodial sentences largely consisting of relatively small fines and community work, as well as licence cancellations. He once received a short sentence of imprisonment that was wholly suspended.
A number of additional incidents are recorded in police records obtained under summons (SG1; SG2):
(a)2012 – SFPH is alleged to have repeatedly punched a person known to him after encountering him in a toilet (SG1, 37-38);
(b)2013 – a Family Violence Intervention Order is reported to have been issued in respect of a former girlfriend following allegations of continual violence (SG1, 63-64);
(c)2014 – a lengthy report describes SFPH encountering or pursuing his former long-term partner and making threats of violence and sexual violence (SG1, 84-88);
(d)2014 – a forensic assessment of the Applicant by a consultant psychologist describes the circumstances of a series of 2016 convictions, said to involve SFPH engaging in abusive behaviour with a woman he wished to be in a relationship with, leading to an Interim Personal Safety Order, later breached by him (SG2 [73]-[77]);
(e)2014-2015 – two reports indicate incidents of arguments or disputes with family members (SG1, 83, 180); and
(f)2017 – a report alleges that in relation to the purported purchase of a car, SFPH met the vendor and assaulted them, forced them to return money handed over for the car, and stole their phone (SG1, 10-13).
In a Statutory Declaration in 2019 (G49, 696), SFPH describes leaving school after Year 11 and meeting up at TAFE with ice users [17]. He describes experiencing symptoms then that he now understands as PTSD, and states that he used ice for about a year [18]-[19]. SFPH declares that he was the victim of a stabbing, receiving multiple wounds when responding to a person breaking into cars in the street, one of them being the car of a girlfriend’s aunt [20]. Due to physical restrictions during recovery, he lost his job and struggled with his mental health, and returned to ice; this period lasted from ‘maybe’ 2010-2012 [21]-[22].
The Applicant states that he returned to panel beating, purchased a home and pursued a hobby of fixing up cars, and, when arrested, was part way through an architecture and design course [23]-[26]. SFPH states further that he did not understand he had a diagnosable mental health condition until 2016 [30]. He states that he experienced trouble regulating his emotions and repressed his feelings, further, most of his offending occurred when he was a teenager or young adult [30]-[32].
With reference to the incidents of sexual offending, SFPH states these occurred during times of extreme pressure in which he had a lot of responsibility, including financial pressure, as well as experiencing shame at the end of a long-term relationship [36]-[37].
In his March 2025 declaration, SFPH acknowledges responsibility for ‘horrible crimes’, considering his behaviour ‘completely unacceptable’ [1]. In his second declaration, the Applicant states that he has struggled with his mental health and ability to cope with stressors, which he associates with his awful childhood [3]. SFPH also states that he was sexually abused in Pakistan during his work cleaning buses. The Applicant describes his home life, then, as unsafe and abusive [4].
SFPH also addresses in this declaration some of his offending and other conduct [7]-[17]. Relevantly, the Applicant explains the stalking incident as arising from intimidation from bikies he says were associated with the victim. He states that an incident of fraud arose from frustration with a workplace. SFPH denies being abusive or aggressive in immigration detention, but acknowledges poor conduct in prison, including an assault on another prisoner.
In cross-examination at the hearing, SFPH stated that he struggled to fit in at school and did not complete Year 12. He pursued higher studies on several occasions but did not complete a qualification. When asked about factors contributing to his offending, the Applicant stated that it was his mental health after being a victim of stabbing in 2010. He described being ‘home on meds’ and having no one to discuss things with. He conceded that financial pressure was also a small factor. I put to the Applicant that his own statements indicate financial pressure may have been a relatively bigger factor, and he stated that he and his brothers had always felt responsibility for the family.
SFPH stated that he was unable to recall the imposition of an intervention order, but acknowledged cheque fraud which happened after he worked for only a week at a business. The Applicant also acknowledged other offending such as robbery, violence and sexual assault. SFPH appeared reluctant to discuss the sexual offending, but accurately related the circumstances and did not challenge any more specific details put to him. The Applicant denied lying about the incidents when meeting with Ms Carla Ferrari, consultant psychologist, in 2018 (SG7). He stated that an account he provided that indicated consent on the part of the victims was done more due to embarrassment. When asked about the impact of his offending, SFPH volunteered that having been raised by a single mother with a sister, he would not wish anyone to do that.
The Applicant appeared to explain his offending in part by reference to ‘ignorance’. With the assistance of the interpreter, this issue was explored further, and the word was not used to indicate lack of awareness of the law. Rather, I understood SFPH to be seeking to explain that he is now more aware of the consequences of his behaviour. In more than one passage of evidence, the Applicant referred to having the feeling of wanting to go back in time to change his past conduct.
It was put to SFPH that he had denied his offending during group therapy in prison (SG2, 210). I noted that the record indicates the Applicant did not deny his offending in private counselling. He stated that he could not recall the course he participated in, but would be ashamed if he expressed denial. SFPH added that it was absolutely wrong to feel a sense of entitlement in his conduct with women. When questioned further about reports suggesting he had previously expressed contrary views (SG2, 201), the Applicant restated that he no longer holds this view.
It was further put to SFPH that he had received numerous forms of sentencing short of imprisonment, to which he responded that his imprisonment away from his family had affected him. He acknowledged numerous instances of breach of orders and he responded that he was not going to seek to justify his conduct, and he has to deal with the consequences now.
The Applicant was also questioned about previous opportunities to deal with his drug and alcohol issues, and his mental health. With reference to a psychological assessment in 2013 (SG2, 122) in respect of charges including arson, I understood SFPH to acknowledge that he had been diagnosed with PTSD, and had also undertaken a number of sessions of counselling earlier in that year. He agreed with the report that he had not found treatment beneficial, and also maintained that he had not become aware of what PTSD entailed until some years later. SFPH also acknowledged failing to comply with the counselling requirement of a Community Corrections Order. He also accepted that he had not taken up a referral to Foundation House in 2016. In subsequent questioning, the Applicant also acknowledged not pursuing recommended drug and alcohol treatment.
As the Applicant made a declaration that he was not abusive or aggressive in detention, a number of incidents were put to him. Ultimately, SFPH accepted that he had at times been verbally abusive, but described his experience in detention as involving frustrations and stated that he was at times not coping well. A number of instances of crude and aggressive language were put to him which he did not dispute.
Clinical evidence
The 2013 report cited above is an assessment by Ms Miriam Brookens, psychologist (SG2, 122). Ms Brookens formally diagnosed PTSD and states that SFPH was re-traumatised in the 2010 knife attack. She describes him as lacking some insight into his anger problems, but admitted to unresolved feelings of grief. She was unable to conduct fuller psychometric testing, but recommended treatment for his psychological symptoms, which he appeared to be willing to do.
In her 2018 report (SG7) (which is the report referred to in the sentencing remarks), Ms Ferrari describes SFPH as reporting a mental health history, with symptoms exacerbated after the stabbing. She also refers to a diagnosis of PTSD and Bipolar Affective Disorder in 2016. On administering the DASS instrument, Ms Ferrari noted acutely elevated psychopathology in the extremely severe range [73]. On administering an instrument for risk of sexual recidivism, the Applicant scored in the low risk category, with no indication of poorly controlled expression of sexual impulses [76]-[77]. She considered him of low risk overall [79]. Ms Ferrari proposed diagnoses of PTSD and Persistent Depressive Disorder, with some antisocial personality traits identified [81]. She considered him to be of a moderate risk of violent reoffending due to his history, noting this only commenced after he was himself violently attacked [88].
Ms Ferrari considered the main precipitant to the sexual offending to ‘be a combination of his pre-existing mental health issues which remain unresolved, as well as the exacerbation of these by new stressors such as his being stabbed …’ [84]. She considers SFPH to have self-medicated with substances to deal with emotional distress. Ms Ferrari recommended against a custodial sentence to facilitate treatment [89].
Mr Jeffrey Cummins, clinical and forensic psychologist, prepared two reports dated in January and March 2025 (both are attachments to the ASFIC). In the substantive January report, Mr Cummins refers to SFPH’s stabbing in 2010, and to subsequent increased ice and cannabis use, which the Applicant considered he was using at the time of the sexual offending [33]. The Applicant described feelings of sexual frustration at the time of this offending, albeit he acknowledged there was no excuse for his conduct [39]. Mr Cummins did not diagnose any ‘specific sexual deviance’, and considered the offending ‘essentially opportunistic and situationally motivated’ [46]. Mr Cummins goes on to give the opinion that SFPH was experiencing grief at loss of a relationship and unresolved symptoms of PTSD, and feeling significantly depressed.
Submissions and consideration
It was submitted for the Applicant that his offending history was causally linked to his PTSD, which was itself exacerbated by the stabbing incident. His violent offending all took place after this. It was contended that SFPH was candid in his evidence and did not seek to diminish or justify, in particular, the most recent offending. Indeed, he was able to show insight into the impact on the victims, showing that he does not simply consider his own perspective. It is contended in written submissions that sentences of imprisonment imposed have been at the lower end of the spectrum, indicating his conduct has not been of the most serious type [32]-[33].
Other relevant submissions include: the Applicant has a consistent record of driving offences, and only one other offence of violence [36]; other offending occurred in a relatively confined period between 2014 and 2016 [38]; and, all offending is now approximately ten years ago, at its most recent [39]. In respect of mitigating factors, reliance is placed upon the professional psychological opinions cited above [42]-[45], while it is acknowledged that aggravating factors include the young age of one of the victims, and the vulnerability of both victims of sexual offending [50].
The Respondent’s submissions initially addressed the nature of the harm that might be caused by repeat offending. In short, it was contended that the nature of the threat posed by SFPH’s history of offending easily meets the test of danger. Taking all of the Applicant’s history into account, it was submitted that he has committed physical assaults on more than one occasion, and while the sexual offending was at the lower end, this should be understood as causing a deep impact on the victims. The bulk of the Respondent’s written and oral submissions dealt with the risk or likelihood of harm arising in the future.
I consider that it is beyond question that SFPH has an extensive and concerning history of offending overall. It involves repeated violence and two deeply unpleasant sexual offences. I consider that the Respondent is correct to point to the non-physical impact of the Applicant’s conduct as a matter of concern. It was conceded that SFPH has an extensive record of driving offences and these should not be ignored as necessarily lesser because their range and frequency suggest a lack of concern for laws and norms, and also of public safety. While not addressed in the material, I consider there to be an almost predatory or at least highly manipulative element revealed from the circumstances of robbery and violent offending, in relation to vehicle sales.
I also consider the Applicant to have accurately pointed to the overall lower weighting of seriousness, and to the concentration of offending in a relatively small window of time. Professional clinical opinion points to the fact that SFPH’s offending was heavily influenced by his psychological condition, which I consider to embrace both his mental health and substance use, or abuse. Consideration of the wider record of psychological assessment adds more insight to the relatively limited reference made to this factor by the sentencing judge, however, sentencing was evidently influenced by the information then available, and this view has only been reinforced in subsequent reporting.
RISK OF REOFFENDING
I summarise briefly relevant material from SFPH’s first declaration:
(a)he accepts the facts and sentencing of the sexual offences and is sorry and ashamed for inflicting suffering on others [1];
(b)SFPH felt ‘not human’ in detention but it is amazing to return to the community despite the BVR restrictions, including ankle monitor [2]-[3];
(c)he has reflected upon being separated from his family and went to his mum and sister as soon as he was released, and the Applicant is conscious of his role as the second man in the family [6]-[10];
(d)the Applicant’s primary goal is to be able to drive and to gain employment, and he is aware of the need to manage the temptation of drugs, so attends Narcotics Anonymous (NA) twice a week online [11]-[12];
(e)he experiences anxiety, which is made worse by the BVR, including the ‘constant messaging’ which includes advice not to be near primary schools [13];
(f)he is trying to address his mental health with the help of his family, and attends fortnightly sessions with a counsellor from Foundation House and also with his psychologist, and SFPH has completed further drug and alcohol courses [14];
(g)the Applicant has applied for multiple jobs as a panel beater but has not received callbacks due to his BVR restrictions [22]; and
(h)SFPH is motivated to stay out of trouble as he wishes to pursue access to his daughter [23].
In his second declaration, SFPH states, in summary:
(a)he is the primary carer for his mother who experiences both mental and physical stress, as his sister works [1];
(b)the Applicant struggled with his mental health and ability to cope with stressors, and has been told he was diagnosed with a personality disorder, but was unaware of this at the time [3], [6]; and
(c)he denies he was abusive or aggressive in incidents in detention, but accepts some behaviour in prison was unacceptable [16]-[17].
In cross-examination, SFPH was referred to the undated letter of offer for employment (Exhibit A1) but was unable to provide any great detail about the opportunity, which was stated to commence on the day of the hearing. He also did not provide specific details of the contribution he makes to the family home, but accepted that he shares from his social security payments. In relation to the record by Mr Cummins that SFPH was addressing a large number of outstanding fines, the Applicant confirmed he was systematically having infringements wrongly attributed to him reversed. He also accepted, after some further probing, that the home he owns is rented out and the income covers the mortgage.
SFPH confirmed that he did not recall being the subject of intervention orders raised by family members. When asked about the possibility he had argued with family, the Applicant responded that arguments and discussions were ‘a family thing’. He was then pressed on the role of financial issues in past stress, and appeared to acknowledge only in a very general way that life can be hard at times. SFPH acknowledged altering a cheque from an employer which he stated was a silly thing to do, and eventually accepted that he may be currently under some financial stress.
The Applicant stated that he has not undertaken specific financial counselling but it is discussed with his current treaters. He stated that seeing people in the community ‘doing it hard’ doesn’t justify breaking the law and one of his specific responses, at the suggestion of his psychologist, was to undertake a diploma course in construction which he expects to finish in the near future.
SFPH confirmed that when first released into the community in May 2024 this was without any form of condition. On his second release on a BVR he has an ankle monitor, but no curfew condition. The Applicant explained that he had been contacted in the morning about charging the device, and also been contacted about his gym which was considered too close to a school. He explained at this point that he must update a range of personal details under his registration as a sex offender every 12 months. SFPH understands this registration pertains for another two-and-a-half years. He acknowledged that there is a BVR condition in respect of proximity to schools and childcare centres. I formed the impression the Applicant, while unhappy about the conditions, considered that he was otherwise free to live his life.
SFPH acknowledged that his drug use was effectively persistent between his time at trade school until entering prison. It increased after the stabbing, and there were a number of reasons for his use of ice, and he ‘never really stopped’. A series of questions were put concerning the Applicant’s engagement in therapeutic interventions. He explained that NA and counselling are both once per fortnight. SFPH stated that he was one or two months into NA meetings which addressed the 12 step approach. When asked to identify the steps, he responded that it involves being away from drugs and each person’s own strategies for relapse.
The Applicant described his most recent drug and alcohol course was related to removal of vehicle interlock requirements. SFPH agreed that he undertook six or seven counselling sessions in early 2013, which he ceased due to the cost. It was not entirely clear from evidence whether these were voluntary following his stabbing, or part of a CCO. When asked why it appeared he had not taken advantage of previous therapy, the Applicant responded that there is a difference between a diagnosis and actual knowledge of the daily impact of a condition. He agreed, however, that he declined a referral to Foundation House in 2016, stating the wait was too long. He also agreed that he had not taken up a recommendation for treatment under a CCO and reoffended within a short period of time.
SFPH confirmed he had attended eleven sessions of counselling between 2023 and 2025 with a treater based in Sydney. The sessions are weekly, but fortnightly if he has problems paying. These sessions alternate fortnightly with sessions with Foundation House. The referral to this provider was the result of a referral from immigration detention. I understood from a later passage of evidence that SFPH has not been open with family about his mental health, but that his brother and sister were emotional supports, and also his mother.
I put some additional questions to SFPH about his daughter, and it was apparent that he has made no real progress in identifying her.
The Applicant’s sister provided a letter, dated 20 March 2025, affirming her support for him, and in her evidence confirmed she is aware of his offending record and now considers him to be a changed man. While she was not aware of his drug use when it was underway, she does understand his mental health situation, and he assists their mother with attending appointments.
In a declaration dated 30 April 2025, and in her evidence, the Applicant’s partner confirmed that they met online while SFPH was in detention in Sydney and she continues to live there. They consider themselves engaged and plan to live together. She expressed her familiarity with the Applicant’s criminal record, but under cross-examination it appeared superficial. She also was unable to spontaneously identify SFPH’s mental health condition, and asserted that she does not think he needs ongoing therapy. She appeared not to be familiar with his history of drug use.
I note additional material as follows (and attached to the ASFIC):
(a)a letter from the Applicant’s mother, dated 20 March 2025, in which she describes her daughter having to reduce work hours to care for her, and asks that SFPH be allowed to remain in Australia so they can continue to care for each other;
(b)a letter from the Applicant’s brother of the same date, explaining that SFPH is their mother’s primary caregiver, and stating there is a strong bond with his own children;
(c)a letter from SFPH’s sister-in-law of the same date and in similar terms; and
(d)documents confirming SFPH’s enrolment in a construction course, and a VicRoads drink and drug behaviour change program certificate.
Documents lodged (SG2) indicate several conduct issues during SFPH’s time in prison (see also RSFIC [26]). These include possibly trashing his cell, mishandling tablets, and using abusive language once. It also appears that the Applicant may have been the target of harassment, possibly due to his offending history. There appears to have been some relatively minor incidents in detention (G68, 1073) but no misconduct reports appear to be in the materials.
Clinical evidence
A comprehensive report by Mr Simon Candlish, dated 10 September 2020 (SG2, 179), was prepared due to the nature of SFPH’s sexual offending. It includes a summary of the Applicant’s mental health history and treatment [163]-[170]. It records three counselling sessions in 2011, the treatment sessions in 2013 raised in evidence, and a diagnosis in 2013 of PTSD. The DASS instrument when administered in 2018 generated a result in the extremely severe range. SFPH is said to have reported in 2019 that he had been prescribed anti-depressants.
Mr Candlish also documents a series of previous risk assessments and treatments [218]-[238]. These include: a 2017 finding of moderate risk for general offending (Level of Service Inventory); a 2018 assessment that he was at low risk of further sexual offending, and a later assessment in the high risk range under a separate instrument; the Applicant expressed in 2018 a limited understanding of PTSD; in 2019 again fell into the high risk for sexual offending and was assessed as suitable for high-intensity group-based offence-specific treatment; this subsequently took place in the Better Lives Program across 2019-2020; as indicated in evidence, the Applicant appeared to open up about his offending in individual sessions; and, SFPH attended drug and alcohol treatment in 2019.
The report also addresses risk of sexual recidivism [303]-[356]. The material is particularly detailed and involves a varied array of assessment methods. In short, it was Mr Candlish’s empirically guided clinical judgment that SFPH fell into the Moderate risk category in the absence of any interventions designed to increase risk manageability. Mr Candlish went on to conduct a similar detailed assessment of risk of non-sexual violent offending [357]-[406]. His judgment was that SFPH fell into the Moderate-High risk category in the absence of any interventions. In conclusion, Mr Candish proposed that the Applicant: explore coping skills and relationship skills in counselling; should be supported to re-engage in drug and alcohol counselling; it would be prudent to allow him to remain in the community with some monitoring; and, he would benefit from stable accommodation
Material from SFPH’s Sydney-based psychologist, Mr Oscar Luan, dated 13 March 2025, confirms attendance as raised in evidence. Mr Luan recommends increased support as beneficial and notes that the Applicant’s past offending was influenced by past trauma. Mr Luan states that the Applicant has shown commitment to treatment and insight into past actions. He considers that SFPH has made ‘considerable strides’ in addressing mental health challenges.
Returning to Mr Cummins’ January 2025 report, the writer describes conducting a risk assessment [41]-[51]. On administration of an actuarial tool (Static-99R), SFPH was placed at Well Above Average Risk, based – it appears – on the nature and circumstances of prior offending. Using the Risk for Sexual Violence Protocol, Mr Cummins identified SFPH at Low Risk of further sexual offences due to increased maturity and understanding, and ability to manage his mental health. Mr Cummins also considered risk of further violent offending using the HCR-20 as Low.
Mr Cummins considered the Applicant’s mental health state [52]-[57], and gave a diagnosis of Complex PTSD. Mr Cummins describes the Applicant here as ‘currently being a very psychologically resilient person’ who has coped well with time in custody and detention.
It was put to Mr Cummins in evidence that SFPH had denied his offending on previous occasions, which the witness accepted. Mr Cummins considered, however, that the Applicant had now ‘moved quite a distance in this regard’. In cross examination, Mr Cummins observed that it would be ideal for SFPH’s partner to know about his offending, but it was not at all uncommon for this not to be the case. He agreed that language used by the Applicant in prison therapy was misogynistic, but affirmed that this was not how SFPH presented in his consultation.
Mr Cummins appeared unaware of conduct incidents in prison and detention, and would like to have known about this. However, he went on to state that given these are toxic environments, yelling and the like are ‘par for the course’. Mr Cummins did not consider the Applicant at risk from substance misuse and considered him committed to further mental health treatment. His impression of the Applicant is that SFPH is very committed to a responsible and event-free existence. Mr Cummins described SFPH as significantly traumatised but, unlike many, he appears psychologically resilient and resourceful. It is very important that he continue therapeutic intervention for PTSD, including during his current transition in the community.
Submissions and consideration
The Applicant’s submissions were framed by the contention that SFPH gave evidence in a candid manner, and had taken responsibility for his behaviour. It was further contended that SFPH had experienced significant growth since incarceration, particularly in relation to his mental health. In short, it was put that he now has mental health literacy, which is a protective factor against recidivism. While it was acknowledged the Applicant had previously not been responsive to court ordered assistance and did not understand PTSD, much of the surrounding conversation was between specialists and his lawyers.
It was submitted that SFPH has engaged with treatment, has not offended since the last recorded occasion, and is motivated to behave as he found time away from his family while incarcerated to be hard. The Applicant’s partner appeared confused about the nature of his most serious offending, but indicated her support, as did his sister. SFPH has also produced written evidence of support from his family and, further, Mr Cummins stated in evidence it was not critical that the Applicant be completely candid with his family.
It was also contended that ice had had a particular impact in the past, but the Applicant had been drug-free for around eight years, despite drugs being accessible. With respect to reports of poor behaviour in detention, it was contended these are one-sided but as they relate to yelling, nothing substantially pertinent to the question of danger arises. It was also submitted SFPH has been tested during two separate periods in the community and no adverse reports had arisen (totalling eight months, Reply [3]). He has experienced some financial pressure, was under the conditions of a BVR, but had not relapsed, nor offended. Rather, SFPH had demonstrated a pro-active attitude including by addressing the fines said to have accumulated in his name. Finally, Mr Cummins had assessed the Applicant at a low risk of sexual or violent reoffending and was of the opinion SFPH had acknowledged the impact of his offending, and had shown unusual resilience. Significant impact should be placed on more recent reports, including Mr Cummins (Reply [9]).
I note the Applicant’s extensive written submissions addressing: formal risk assessment [51]-[62]; remorse [63]-[67]; prospects of rehabilitation [68]-[[69]; views of friends and family [70]; contribution to the community [71]; and on the impact of the BVR [72]-[75].
It was submitted for the Respondent that the real question is likelihood of harm arising in the future. With respect to the weight to be afforded the various professional reports, the Respondent contended that earlier reports, particularly that of Mr Candlish should be given consideration due to the fact that Mr Cummins relied largely upon self-reporting from SFPH. Specifically, for example, the Applicant sought to discredit victims when meeting Mr Candlish, and had given a version of events contrary to sentencing remarks to Mr Cummins (see also RSFIC [60]-[61]). I also note the further detailed comparison of clinical material in the RSFIC [60]-[68]. Consistent with this, at the hearing it was contended that even Mr Cummins’ assessment that the Applicant was at a lower level of risk of reoffending could still contribute to a finding of danger.
Some support for this was said to be found in reports of incidents in prison and detention. While the weight afforded reports from detention was a matter for the Tribunal, it was put that the Applicant had ultimately accepted the use of aggressive language. Other relevant considerations have been identified in the RSFIC [69]. It is contended, for example, that the lack of incidents in the community is not necessarily an indicator there is no risk, particularly given evidence that the ankle monitor is a reminder of his situation and BVR conditions. Reference was also made in submissions to SFPH’s prior non-compliance with orders, and earlier encounters with relevant professional services.
Further, it was contended that given the diagnosis of PTSD, the Applicant’s current therapeutic needs have not been entirely fulfilled. On SFPH’s evidence, he was engaging less frequently than indicated in written material, and it is yet to be seen if he would continue to engage. Similar submissions were made in respect of SFPH’s engagement with treatment to address the risk of relapse into drug use. Noting his extensive past history of use, the evidence about 12 step programs was superficial. Accordingly, there is a risk of relapse. Given the history of misconduct when under financial pressure, the assessment by Mr Cummins that SFPH has the tools to manage has not been tested over a prolonged period.
Finally, in respect of personal supports, it was submitted that the Applicant’s family had all been present in his life before, and this had not prevented offending. It was acknowledged that there are indications that support will be provided, but – in particular – SFPH’s partner is interstate and it is not clear how or when direct support would be provided.
There are multiple sources of clinical risk assessment in this matter. I accept that the evaluation of Mr Candlish is very robust and thorough, however, I consider it not up to date. In any event, the recommendations it carries have indeed been pursued and SFPH has engaged in appropriate therapy and continues to do so. The Respondent was correct to seek a more accurate estimate of time committed by the Applicant, however, this does not fundamentally change the relevance of ongoing therapeutic support, a matter attested to by Mr Cummins. Overall, it appears to me that the present risk rating of low for both sexual and violent offending is therefore consistent with the earlier clinical material. I also note Mr Candlish’s assessment that the Applicant be supported in the community.
Given my findings above about the nature and circumstances of the most serious offending, the evidence indicates that further offending would likely require a process to unfold. SFPH is presently emotionally and psychologically stable (concerns about the BVR aside) and a break or failure of treatment would need to occur, such that the Applicant also engages in substance abuse and/or substantially loses his mental or emotional equilibrium, and conditions then lead to offending. I consider he is in fact in a somewhat precarious position financially at the moment and is having difficulty obtaining employment. However, he has the professional support identified as necessary by Mr Candlish, and his resilience (as identified by Mr Cummins) appears to be reflected in his capacity to systematically handle the purported outstanding debts. Personal and family support is adequate in the circumstances notwithstanding SFPH’s partner appears not well informed about his past.
I consider that any reoffending, given his record, would likely be harmful to the community, but I accept the latest clinical risk assessments, and consider that the risk is presently managed well. His resilience and ongoing treatment demonstrate to my satisfaction that the conditions likely to be needed to bring about further offending are unlikely to arise. Furthermore, this conclusion is reinforced by the additional layers of monitoring that come from the BVR conditions, and sex offender registration, overlapping as they do.
CONCLUSION
I noted above the important features of SPFH’s criminal record, including it being somewhat confined in time, and the evidence demonstrates that his more serious offending was a factor of a particular dysfunction then prevailing in his life. There does appear to be evidence demonstrating that the Applicant has had opportunities in the past to grapple seriously with his underlying psychosocial problems, on a foundation of substantial trauma. However, even were I to accept this as a critical consideration, it has been demonstrated to my satisfaction, as noted, that SFPH is now in a position to deploy knowledge, skills and commitment to treatment to further pursue his wellbeing.
It cannot be denied that a repeat of SFPH’s worst behaviour would cause harm to the community. However, I must consider the likelihood overall of this eventuating. I accept the current clinical evidence as to the low risk that the Applicant poses, and I do not consider there to be a significant possibility of this behaviour in fact being repeated.
DECISION
For the reasons given above, the Tribunal sets aside the decision under review and remits it for reconsideration in accordance with the finding that the Applicant is not a danger to the community.
Dates of Hearing: 5 and 6 May 2025 Applicant: SFPH Applicant’s Representative: Ms Alisson Battison from Heretic Law Respondent’s Counsel: Ms Kylie McInnes Respondent’s Solicitor: Ms Kristina Petrovski from Sparke Helmore Lawyers
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