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

[2022] AATA 621

VCFR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 621 (4 April 2022)

Division:GENERAL DIVISION

File Number(s):      2021/8331

Re:VCFR  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Bellamy

Date:4 April 2022

Place:Brisbane

The decision under review is affirmed.

...........................[SGD].............................................

Member R Bellamy

CATCHWORDS

MIGRATION – refusal to grant a Protection visa – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community –  decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act (Cth)

Criminal Law Consolidation Act 1935 (SA)

Migration Act 1958 (Cth)

CASES

DOB18 v Minister for Home Affairs [2019] FCAFC 63

KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108

R v Kent & Johnson [2021] SADC 154

SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

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) AMENDED BY THE PROTOCOL RELATING TO THE STATUS OF REFUGEES, OPENED FOR SIGNATURE 31 JULY 1967, 606 UNTS 267 (ENTERED INTO FORCE 4 OCTOBER 1967).

REASONS FOR DECISION

Member R Bellamy

4 April 2022

BACKGROUND

1. The Applicant is a 49-year-old citizen of Somalia. In 1993, when he was approximately 21 years old, he arrived in Australia as the holder of a Global Special Humanitarian (subclass 202) (“the visa”).[1]

   [1]     Exhibit T1, T23 page 251.

2. On 22 March 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and he was serving a full-time term of imprisonment.[2] On 9 April 2019 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa. On 15 April 2020 the Respondent decided pursuant to s 501CA(4) not to revoke the cancellation.[3]

   [2]     Exhibit T1 T23 page 251.

   [3]     Exhibit T1, T23 page 251.

3. On 29 May 2020 the Applicant sought review in this Tribunal. On 19 June 2020 the application was dismissed pursuant to s42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis the Applicant had applied for review of the s 501(3A) decision instead of the s 501CA(4) non-revocation decision, and the time limit in which he could apply for review of the non-revocation decision had expired without the Applicant making a valid application for review in relation to that decision.

4. On 29 July 2020 the Applicant applied for a Protection (Subclass 866) visa.[4] On 21 October 2021 the Minister’s delegate refused the application pursuant to section 65 of the Act.[5] The Minister’s delegate found that while the Applicant met the criteria in sections 36(2)(a) and 36(2)(aa) he did not meet the criterion in s 36(1C) which is an essential criterion for a Protection visa.

   [4]     Exhibit T1, T4, pages 7 to 32; T5 pages 33 to 39.

   [5]     Exhibit T1, T23 pages 251 to 318.

5. The Applicant lodged an application for review of that decision in this Tribunal on 3 November 2021.[6]

   [6]     Exhibit T1, T2 pages 3 to 5.

6. The hearing of this application proceeded on 14, 15 and 17 February 2022. The Applicant gave evidence via videoconference. One of the Applicant’s brothers and the wife of his other brother gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

7. Section 65 of the Act relevantly provides that, after considering a valid application for a visa, if the Minister is satisfied that:

   ·criteria for the grant of the visa have been satisfied (including any health criteria);

   ·the grant of the visa is not prevented by other sections of the Act; and

   ·any visa application charge payable has been paid.

   the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.

8. Subsection 36(1A) of the Act provides that:

   An Applicant for a protection visa must satisfy:

   (a)  both of the criteria in subsections (1B) and (1C); and

   (b)  at least one of the criteria in subsection (2).

9. Subsection 36(2) of the Act relevantly provides:

   A criterion for a protection visa is that the Applicant for the visa is:

   (a)  a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm

   …

10. Paragraph 36(1C)(b) of the Act provides:

    A criterion for a protection visa is that the Applicant is not a person whom the Minister considers, on reasonable grounds:

    …

    (b)  having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

11. Additionally, paragraph 36(2C)(b) of the Act provides:

    A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

    …

    (b)  the Minister considers, on reasonable grounds, that:

    …

    (ii)  the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

12. Section 5M of the Act provides that “a particularly serious crime” for the purposes of
    s 36(1C)(b) includes a crime that consists of:

    ·“a serious Australian offence”; or

    ·“a serious foreign offence”.

13. Section 5 of the Act relevantly provides that “serious Australian offence”:

    means an offence against a law in force in Australia, where:

    (a)the offence:

    (i)involves violence against a person…

    … and

    (b)the offence is punishable by:

    (i)…

    (ii)imprisonment for a fixed term of not less than 3 years

    …

    ISSUES

14. The issues before the Tribunal are:

    (a)whether the Applicant has been convicted by a final judgment of a particularly serious crime; and if so,

    (b)whether the Applicant is a danger to the Australian community.

15. The Applicant’s criminal history,[7] indicates he has been convicted by final judgement of a number of offences between 2002 and 2019.

    [7]     Exhibit T1, T12 page 102 to 104.

16. In 2010, the Applicant was convicted of “Indecently assault a person – basic offence” contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). At the time of committing the offence, it was punishable by a maximum of eight years imprisonment.

17. The Respondent contended that the elements of the offence of indecent assault include that the act in question “involved a deliberate application of force”[8]. I accept that. The Applicant attempted to force the victim’s legs apart and he grabbed her breast. Those acts – forcing and grabbing – are physically aggressive acts and they made the victim feel frightened and intimidated. I am satisfied that that the indecent assault involved violence against a person.    

    [8]     R v Kent & Johnson [2021] SADC 154 at [5] per Judge Kimber.

18. Accordingly, I am satisfied that the Applicant was convicted by a final judgment of a particularly serious crime. Therefore, the only remaining issue is whether the Applicant is a danger to the Australian community.

    MEANING OF DANGER TO THE AUSTRALIAN COMMUNITY

19. Subsection 36(1C) of the Act was enacted to codify the effect of Article 33(2) of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugees Convention’) with the effect that a Protection visa applicant would be ineligible for the grant of a Protection visa if they were a refugee who would have otherwise been excluded from the non-refoulement principle by Article 33(2) of the Refugees Convention.

20. Article 33(1) of the Refugees Convention provides that:

    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.

21. Article 33(2) of the Refugees Convention provides that:

    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.

    (Underlining added)

22. In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”), Deputy President Tamberlin, formerly a Federal Court Judge, said the following at [25] to [31] regarding the exclusionary provision in Article 33(2) of the Refugees Convention:

    The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.

    …

    The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.

    The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100

    :...

    Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular Applicant in the particular circumstances of his case is at an unacceptable level of risk.

    ...

    …

    In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future…as Brennan J, pointed out (Salazar at 100) it involves an assessment of the Applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.” 

23. In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”) Logan J, referring to Deputy President Tamberlin’s decision in WKCG, made the following observations at [83]:

    In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a Protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.

24. In KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [54] Bromberg J said, in obiter:

    “Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63;  (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).”

25. His Honour appeared to equate “present and serious risk” with something “suggestive of a high level of risk”.

26. The ordinary meaning of danger must contemplate both the probability of a thing occurring and the harm that will result from its occurrence. I do not take Logan J’s formulation of “present and serious risk” or Bromberg J’s “high level of risk” as intended to confine the meaning of “danger” to probability only. Accordingly, I will consider the risk of further harmful conduct and the seriousness of the harm involved.

27. The question whether the Applicant is a danger to the community is to be answered taking into account only matters that are relevant to that question and is not to be balanced against other matters such as the consequences to the Applicant of returning him to Somalia.[9]

    [9]     SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 and DOB18 per Logan J at [51] and [52].

    BACKGROUND AND CRIMINAL OFFENDING

28. The Applicant has an extensive criminal history in Australia, having committed approximately 90 offences between 2002 and 2017. His offending includes some 18 convictions for disorderly behaviour, and a number of other antisocial offences including urinating in a public place, loitering, consuming alcohol in public and carrying graffiti implement in a public place/when trespassing. Other offending includes property and vandalism offences and some minor drug offences including damaging property on seven occasions, taking property without consent and possession of a prescription drug.

29. The Applicant failed to comply with judicial orders on multiple occasions with 27 convictions for failing to comply with bail and eight convictions for breaches of bonds. He also has a history of failing to cooperate with law enforcement, having been convicted of obstructing/hindering police on one occasion and resisting police on two occasions as well as multiple instances where he either refused to provide his details to police or he provided false personal details or false evidence of his personal details.

30. The Applicant has also committed more serious offences involving violence and indecent behaviour including three common assaults and four indecency offences including indecent assault of minor victims.

31. In these reasons I will not go over all of the Applicant’s offences. Rather I will focus on the more serious offending and the risk of further offending of that nature.

    Allegations of Rape on 13 February 2005 and 27 November 2006

32. According to police records, they received a complaint that on 13 February 2005 the Applicant raped a 19-year-old man. According to the complainant, in the early hours of the morning, he met a man he had met on previous occasions and whom he knew as “Ali”. They went to a tavern and consumed alcohol. They then went to the grounds of a church on the corner of North Terrace and Morphett Street, Adelaide. They began to have consensual sexual contact. The Applicant began to have anal intercourse without a condom. The complainant said he did not want to continue, asked the Applicant to stop and tried to push him off. The Applicant was on top of him, and he was unable to move due to the Applicant’s body weight. The Applicant continued to insert his penis into the complainant’s anus. The complainant was eventually able to push the Applicant off. Later than morning, the complainant returned to accommodation for homeless males aged between 16 and 24. He told a staff member that he had been raped by someone he was familiar with but did not really know. On 16 February 2005, the complainant was with friends when he saw and recognised the Applicant. He told his friend the Applicant was the person who raped him, and they chased him to a Police Station where he identified the Applicant to police. The Applicant denied knowing the complainant, and he denied the allegations, saying it was a case of mistaken identity.[10] Although the Applicant was charged, he was not prosecuted.

    [10]    Exhibit R2, RTB2, pages 11 and 12.

33. In the hearing, when this allegation was put to him, the Applicant said he does not behave like that and he speculated that the allegation was made up or people were using his name. He was asked if he thought he could have raped the complainant when he was drunk. He said no because he would never do that. He then suggested that when he is intoxicated the “people you hang around, they drag you into that”. He added that it was not in his lifestyle or his character.[11] He agreed that there were times when he was so intoxicated, he could not remember what happened.[12]

    [11]    Transcript, page 17, line 20 to page 18, line 15.

    [12]    Transcript, page 18, lines 37 to 40.

34. According to police records, another complaint of rape was made in November 2006. The complainant was a 48 year old homeless male who alleged that he was raped by the Applicant at Veale Gardens in Adelaide. He was known as Rodney and he had a tattoo on his neck. The complainant said he was drinking with male known to him as “African Johnny” or “Johnny Howa” on 27 November 2006. He lost consciousness between 12.00pm and 5.00pm and when he woke his pants were around his ankles, he had a sore anus, and he was bleeding from the anus. The last thing he remembered was talking to African Johnny. The complainant was very distressed. The police attended Veale Gardens and, after speaking to three men including the Applicant, they identified the Applicant as African Johnny. They later confirmed this using a number of identity documents. He was charged with rape. The Applicant initially denied being African Johnny or knowing a Rodney with a tattoo on his neck. However, he later admitted that he had been drinking with a Rodney who had a tattoo on his neck on the day in question at Veale Gardens. He refused to answer further questions once given legal advice.

35. At the time the police notes were made, Rodney’s whereabouts were unknown. The charge was not prosecuted.[13] The Applicant denied having raped the complainant. He said when you hang around bad people, when you are drinking and you have money, they make up stories.[14]  

    [13]    Exhibit R2, RTB2, pages 17 and 18.

    [14]    Transcript, page 19, lines 27 to 33.

36. There is no suggestion of any collusion between the two complainants or that they even knew each other. Yet both claimed to have known the Applicant and to have been raped by him in the Adelaide Central Business District after consuming alcohol. It seems most unlikely that two persons unknown to each other fabricated such similar allegations. One of the complainants made a contemporaneous report to a third party which adds to the credibility of his complaint. The Applicant was subsequently convicted of other offences arising from pubic (homosexual) sex in parklands and unwanted sexual touching. He either denied or claimed not to recall that offending, which tends to undermine the credibility of his denials in general. Despite the fact that the rape allegations were never prosecuted, and the complainants were never cross examined, on the evidence before me I think it more likely than not that the allegations are true. I am satisfied that the Applicant committed rape in 2005 and 2006 respectively.       

    Indecent Assault – 13 February 2007

1. On 13 February 2007 the Applicant indecently assaulted a 19 year old female victim on a train on her way to TAFE. The facts of this offence are set out in the remarks of the learned sentencing Magistrate, referring to the Applicant as the “defendant”, as follows:

   “At about 4.50pm on the 13th February 2007, the victim caught a train to the city so that she could attend her TAFE class. When she entered the carriage there were only four other people on board and she went to the end of the carriage where she could sit on her own. She was casually dressed in a pair of shorts.

   Two stops later, a group of about 7 Aboriginal people entered the carriage and walked to the end where the victim was sitting. A female sat alongside of her and commenced to talk with her. The victim observed that this person who identified herself as Elizabeth was affected by alcohol. The victim told police that this person kept leaning in towards her and invading her space when talking with her.

   Shortly afterward, the defendant sat down diagonally opposite the victim and immediately touched her legs. He then tried to force her legs apart. The victim became immediately concerned about her safety. She formed the impression that the defendant was attempting to open her legs to look at her vagina. The victim pushed the defendant’s hands away. Shortly after he again touched her on the legs and said something about trying to make the other woman jealous. The victim slapped the defendants (sic) hand away again.

   Approximately two minutes later the defendant grabbed the victim on her right breast and moved his hand about. The victim felt frightened and intimidated. She stood up to move out of the seat but the defendant put his legs across the seats to stop her leaving. He told the victim not to go. The woman then said something about letting the victim go and the defendant leaned back in his seat but kept his legs across the seats. The victim then stepped across the defendant’s legs and moved to the other end of the carriage. She called her parents on her mobile phone and arrangements were made for the police to attend at the Adelaide railway station.

   The police met the train. The victim approached an officer and told him what had happened. A lot of people were milling around as they got off the train but the victim immediately identified the defendant as he stepped off. She was greatly distressed and in tears according to the police officer.

   The defendant was spoken to and denied even being on the train.”[15]

   [15]    Exhibit T1, T12 105 to 109.

2. On 23 March 2010 the Applicant pleaded guilty to indecently assault a person – basic offence. He was sentenced to 12 months’ imprisonment with a seven-month non-parole period.[16] He was also convicted of breaching a bond that he had entered into on 16 December 2005, and he was sentenced to 21 days imprisonment concurrently with the indecent assault sentence.

   [16]    Exhibit T1, T12, page 103.

3. The learned sentencing Magistrate, having read the Victim Impact Statement (“VIS”), accepted that the incident had been a traumatic experience for the victim, profoundly affecting on her daily life. The VIS indicated that since the incident the victim had been fearful of catching trains and of being alone on any form of public transport. She avoided trains altogether and her father spent a year driving her to and from TAFE twice a week at considerable inconvenience.[17]

   [17]    Exhibit T1, T12, page 107.

4. A Department of Correctional Services minute dated 20 May 2010 noted that the Applicant said that he did not remember the offence, he was drunk and unconscious. and that he believed he had been set up. It also noted that the Applicant had declined to attend a sexual behaviour clinic assessment.[18] In the hearing, the Applicant initially said he could not remember the offence and later he indicated that his hand could have been slippery.[19] When he was reminded that in 2010 he said he had been set up, he agreed that he had been set up.[20]

   [18]    Exhibit R2, RTB2, page 139.

   [19]    Transcript, page 23, lines 17 to 21.

   [20]    Transcript, page 23, line 44 to page 24, line 6.

   Allegation of Indecent Assault – 8 May 2012

5. The police records contain a complaint that on 8 May 2012 the Applicant indecently assaulted a 16 year old girl. She reported that she was on a bus wearing her school uniform when the Applicant sat next to her and said he wanted to make love to her. He asked her to introduce him to her two friends. She was scared and decided to get off the bus. As she walked past him, he slapped her on her bottom.[21] It does not appear that this complaint resulted in a prosecution. In the hearing the Applicant said he could not remember it.[22] This alleged behaviour is so similar to other indecent assaults that the Applicant has been convicted of that I accept that it did occur.     

   [21]    Exhibit R2, RTB2, page 28.

   [22]    Transcript, page 24, lines 25 to 30.

   Indecent Behaviour – 2 September 2013

6. On 2 September 2013 the Applicant exposed his penis to a young man on a bus. The police report[23] indicates that the Applicant boarded a bus and sat next to the victim. He was unsteady on his feet and intoxicated. He spoke to the victim with slurred speech and alcohol on his breath. He first asked the victim his age and told him he was 42 years old. He asked the victim inappropriate questions including if he was getting horny and if he had ever been molested. The victim tried not to speak and just answered “No” to his questions. When he did not respond the accused would tell him to “F--k off.” The Applicant touched the top of the victim’s thigh several times and occasionally nudged his shoulder. He began to unzip his fly and pull out his penis which was erect. He made murmuring sounds. The victim climbed over the seat and stood towards the front of the bus before getting off at a bus stop. He then contacted a family member to pick him up. The incident made the victim feel disgusted and very uncomfortable. CCTV footage showed the Applicant sitting next to the victim, exposing his penis. When he was interviewed by the police the Applicant denied he had committed the offence and when shown images from the CCTV, he denied the person in the footage was him. In the hearing the Applicant denied any knowledge of that offence, saying alcohol makes him black out.

   [23]    Exhibit R2, RTB2 pages 28 to 30.

7. On 30 June 2014 the Applicant was convicted of indecent behaviour in relation to the incident and sentenced to six weeks’ imprisonment which was suspended upon him entering into a bond to be of good behaviour for two years with supervision for 12 months.

   Allegation of Assault – 14 September 2015

8. The police records contain an allegation that on 14 September 2015, the Applicant assaulted his ex-girlfriend by punching her from behind to the mouth, causing a split lip, a loose tooth and bleeding, and throwing her to the ground. There was a Police Interim Intervention Order in place at the time.[24] In the hearing, the Applicant said he could not remember, then he suggested that he was defending himself from the complainant’s violence.[25] This offence was not prosecuted, however considering the evidence, I am satisfied that the Applicant assaulted his ex-girlfriend in breach of a Police Interim Intervention Order.

   [24]    Exhibit R2, RTB2, page 56.

   [25]    Transcript, page 29, lines 12 to 18.

   Grossly Indecent Act – 3 October 2014 

9. On 3 October 2014, the Applicant was observed by police having consensual anal sex in Veale Gardens with another man.[26] He admitted to doing that. According to the co-accused, the Applicant had initiated the sexual intercourse.[27]

   [26]    Exhibit R2, RTB2 page 42.

   [27]    Exhibit R2, RTB2, page 42.

10. The Applicant was interviewed by a psychiatrist, Dr Jennings, in March 2017. Dr Jennings reported that, in relation to the sexual intercourse in the park, the Applicant told him that the young man made up a story looking for money. He did not want to discuss it further, saying he was drunk at the time.[28] In the hearing, it was pointed out that the police witnessed the offence. The Applicant indicated that the police were hassling him.[29] He later said he cannot control himself when he is intoxicated, and he could not remember.

    [28]    Exhibit R3 pages 3 and 4.

    [29]    Transcript, page 27, lines 25 to 26.

11. The Applicant was interviewed by another psychiatrist, Dr Furst, in May 2018. He said “I don't know these people. Not my cup of tea. It's not my style” and indicated that he thought perhaps that the police were sick of him and made up a story about him.[30] When that was put to him in the hearing, he said the police wrote it, he could not remember, and he could not say.[31]

    [30]    Exhibit R4, page 5.

    [31]    Transcript, page 26, lines 43 to 44.

    Assault – 30 November 2014

12. On 30 November 2014, the Applicant assaulted his then partner by slapping her across the face.[32] In the hearing he said he did not really remember that.

    [32]    Exhibit T1, T12, page 111.

13. It became apparent during the Applicant’s evidence that he claimed to have no memory of any offence or alleged offence that was put to him. He was then asked if he could recall any offence he had ever committed, and he said he could not.[33]   

    [33]    Transcript, page 30, lines 42 to 46.

14. On 26 February 2015 the Applicant was convicted of a grossly indecent act in relation to the sexual intercourse in Veale Gardens, the assault on his partner and some other offending. He was sentenced to an effective head sentence of eight months and six weeks’ imprisonment, to be released on a 12 month good behaviour bond after serving four months.

15. A Senior Psychologist prepared a report for the Sentencing Management Unit in February 2016. The report stated that, on the basis of a Static Risk assessment, the Applicant was estimated to be at high risk of sexual reoffending.[34]

    [34]    Exhibit R2, RTB2, page 140.

    Indecent Assault – 7 July 2017

16. On 7 July 2017 the Applicant indecently assaulted a 14-year-old girl on a bus. The Transcript of the sentencing proceedings of the Supreme Court of South Australia contains the facts of the offence. They are:

    “Just after 5.00 pm on 7 July 2017, the 14-year-old victim caught a bus on her way home from school. Once on the bus, the girl noticed the bus driver went to the back of the bus and woke a man up from sleeping. The man was [the Applicant] who said that he would be getting off at the next stop.

    When the bus driver started driving the bus, [the Applicant], in the girl’s words, “started going off” because he did not know where he was. Five or ten minutes later, [the Applicant] came and sat across from the girl facing her. [The Applicant] started and kept on asking the girl; “where are we?”, “how old are you?”, and “where do you get off?”. The girl did not answer. [The Applicant] then placed his right hand on the girl’s right upper leg and moved it up and down. The girl said, “Can you please stop”, but [the Applicant] kept going. The girl then got off at her bus stop. As the girl was getting off, [the Applicant] said, “Don’t stay, I need someone”. The girl reported that [the Applicant] smelled of alcohol and urine, that he was hard to understand, and was drunk because he could hardly stand up. [The Applicant] was subsequently identified on CCTV footage and arrested on 21 July 2017. The bus driver also reported that [the Applicant] was grossly intoxicated.”[35]

    [35]    Exhibit T1, T12, page 114.

17. A pre-sentence report dated 30 November 2017[36] noted that the Applicant was verbose but economical with detail when the conversation concerned his sexual offending. His evidence in these proceedings was similar. The Applicant told the report writer that he did not have a close relationship with either of his siblings, indicating that they led what he perceived to be highly structured and regulated lives. He said, “They tell me ‘do this’ and ‘do that’. I just want to be free”. He reported no contact with either of his siblings for a long time. The Applicant claimed to have no sexual interest in children, and said he is an accurate judge of a woman’s age. He denied being attracted to males and denied ever having been sexually intimate or having anal intercourse with another male. The report noted that the Applicant had been employed for some periods in manufacturing and seasonal fruit picking but had not worked for over 10 years and he was in receipt of the Disability Support Pension. The Applicant said he enjoyed playing soccer and basketball but had not been involved in either of these activities for many years due to his alcoholism and social exclusion.

    [36]    Exhibit T1, T19 pages 178 to 184.

18. The writer opined that the Applicant was in denial regarding his sexual offending, particularly his sexual behaviour toward male victims. It was noted that due to the Applicant’s history of being admitted to custody and his near perpetual intoxication, community-based treatment for his sexual behaviour was difficult to implement, and that he had been unable to complete the Sexual Behaviour Clinic in custody due to his relatively short periods of imprisonment.

19. Two further reports were commissioned by the Supreme Court for the purpose of making appropriate orders. Drs Jennings and Furst were each asked to assess whether the Applicant was unable or unwilling to control his sexual instincts.

20. Dr Jennings reported that the Applicant had admitted to smoking marijuana regularly but denied using any other illicit recreational drugs. He reported drinking up to six litres of cask wine per day over the preceding 10 years, to “block out” his experiences from the Somalian war and a refugee camp where he had lived. He had past referrals to detoxification units but he had never attended. The Applicant told Dr Jennings that he had been drunk every time he offended and that he “did not mean to do it” and he “did not want to do it again”. He accepted that he needed to address his alcohol use and he expressed willingness to undertake an alcohol rehabilitation program, hoping this would “turn my life around”.

21. Dr Jennings opined that the Applicant would benefit from a treatment program with the Sexual Behaviour Clinic but that the principal treatment needed was for alcohol abuse with an extended period of rehabilitation as Dr Jennings believed that the Applicant would be at high risk of returning to alcohol abuse given his very limited social supports and resources. He concluded that the Applicant was at a very high risk of returning to abusing alcohol on a regular basis, resulting in a high risk of him reoffending as a result of him being incapable of controlling his sexual instincts when intoxicated.

22. Dr Furst described the Applicant as a daily drinker who would drink until he fell asleep. The Applicant told him he could drink up to 18 or 24 cans of beer in a session and that he would drink wine if he was short of money. He said, in relation to the offences, that it was not his style, he was intoxicated, he could not recall the offending or perhaps the police made up a story about him. He said his main problem was other people and that if he had money they would cause him problems.

23. Dr Furst noted that the Applicant was very talkative and very controlling of the conversation, never seeming to give straight answers to his questions. The Applicant behaved similarly in these proceedings, often stating that he would not re-offend or he did not do that sort of thing rather than answering the question that was asked. Dr Furst observed that the Applicant presented as lacking insight with very poor judgment. He administered the Static-99R which he described as one of the most commonly used actuarial risk assessment tools across the western world for assessing the risk of future sexual offending. The Applicant scored 9 which put him in the high risk category (6 and over).

24. Dr Furst also administered the Risk for Sexual Violence Protocol (RSVP), which he described as a structured professional guideline for assessing the risk of sexual violence in which sexual violence is defined as “actual, attempted or threatened sexual contact with another person that is non-consensual”. He thought the Applicant minimised his offending to a great degree, maintaining a rather glib appearance of shock at the allegations against him, and consistently denying he would act in such a way or indicating that he only did so as a result of intoxication. He found it difficult to assess whether the Applicant had problems with stress or coping as it appeared that he did not particularly worry about anything, but lived from moment to moment and pay cheque to pay cheque without any great concern about living on the streets. He showed little remorse for his offending, presented as glib and superficial and led a very impulsive lifestyle.

25. Dr Furst noted that the Applicant’s presentation made him wonder whether he suffered from some sort of intellectual impairment, and he said the interpreter they used said the Applicant did not seem quite right in the head. He wondered if the Applicant had an intellectual impairment that should be formally explored by a neuropsychologist. I wondered the same thing when the Applicant gave evidence in these proceedings, although I am satisfied that the Applicant understood that the key issue for determination was whether he was a danger to the community. Further, while he appeared to understand most of the questions asked of him, even if some had to be asked more than once, he seemed unwilling or unable to confront the reality of his offending, and it is quite possible that there are gaps in his memory from periods of extreme intoxication and/or because years of alcoholism has impaired his memory.    

26. Dr Furst noted the Applicant’s history of non-sexual criminality which includes assault, multiple breaches of bail and other minor offences. He said the Applicant was offered treatment at Owenia House, but he did not accept that he was responsible for failing to attend, instead indicating that nobody took him. He said the RSVP assessment was consistent with the Static-99R assessment.

27. Dr Furst concluded that it was most likely that the Applicant’s release into the community would not be successful unless it was extremely highly structured. He thought he was unlikely to complete community-based treatment and that, apart from his risk of sexual reoffending, he also needed to address a number of other deficits which contribute to his risk of reoffending, including his dependence on alcohol and his lack of coping skills in the community. He thought it was most likely that further reoffending would be of a similar nature to his previous offences, but there was also the risk that he could commit a more aggressive sexual offence if he did not address his offending behaviour before release.

28. On 22 February 2019, the Applicant was sentenced in the Supreme Court for the indecent assault. The learned Judge took the evidence of the two psychiatrists into account.  

29. The learned Judge noted that there was evidence from the Department for Correctional Services indicating that the Applicant had reported for supervision as directed (often intoxicated), attended an assessment at Owenia House for treatment for sexual behaviour issues, and was returned to custody on several occasions for fresh offending. The Applicant had also been referred to a Drug and Alcohol Service but had not received treatment other than admissions for detoxification. Her Honour accepted the opinions of both psychiatrists, namely Dr Furst’s opinion that the Applicant met the definition of unwilling to control his sexual instincts and Dr Jennings’s opinion that the Applicant was incapable of controlling his sexual instincts when intoxicated. She noted that when discussing his offending, the Applicant could not relate to the criminal acts he had engaged in. She also noted that he had been referred to, but failed to complete, alcohol rehabilitation programs. Her Honour concluded that, having regard to the Applicant’s history of offending and the psychiatric evidence, his prospects of rehabilitation were very poor, and his risk of reoffending was very high unless he was prohibited from drinking alcohol, he secured a place to live, and his alcoholism was managed. She noted that if the Applicant’s alcoholism could be controlled, he would have a better chance of undergoing sex offender rehabilitation, and that alcohol and sex offender rehabilitation could be provided together. She acknowledged that this could only occur in the community under close supervision with a highly structured release to give him the best prospect of rehabilitation.

1. The Applicant was sentenced to two years and 10 months imprisonment with a non-parole period of 19 months.

2. On 18 May 2020 the Supreme Court of South Australia made an interim supervision order, pending the making of an extended supervision order. The interim order contained several conditions, most significantly that the Applicant:

   ·be under the supervision of a community corrections officer and obey all reasonable directions of that officer;

   ·abstain from consuming alcohol and not enter upon or remain upon the premises of any licensed hotel, licensed club or licensed entertainment venue;

   ·undertake and satisfactorily complete substance abuse counselling as directed;

   ·wear an electronic transmitter; and

   ·not have unsupervised contact with any person under the age of 16.

   IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?

3. It is well accepted that, generally, the best predictor of future behaviour is past behaviour. Additionally, there is expert psychiatric evidence that it is most likely that any further offending would be of a similar nature to the Applicant’s previous offences or possibly more serious. Accordingly, the nature and seriousness of any future offending is informed by the Applicant’s past offending. The Applicant’s more serious past offending includes rapes, assaults and indecent assaults.

4. The physical, emotional and psychological harm from rape is well known. The harm from committing another rape is extremely serious and potentially devastating for a victim.

5. The harm from assaults of the kind the Applicant committed is serious as they are likely to cause physical and emotional injury.

6. An indecent assault is typically disgusting and/or frightening to the victim. It involves an attack on the victim’s dignity and physical integrity. The Applicant chose victims who were teenagers, a demographic that is known to be impressionable, somewhat vulnerable and still in the process of developing robust personal boundaries. The 19 year old woman who was indecently assaulted on her way to TAFE was unable to take public transport to and from TAFE for a year because of what the Applicant did to her, indicating long term, debilitating psychological trauma. It could reasonably be expected that future victims would suffer adverse psychological impacts from such offending. Repeated indecent assaults are likely to result in very serious harm to members of the community.       

7. The Applicant has been in some form of custody, being remand, prison and immigration detention, since July 2017. He claims that in that time he has not consumed alcohol, attributing his abstinence to not seeing people drinking. He said it is when he sees other people drinking that he drinks.[37] I accept his evidence.

   [37]    Transcript, page 11, lines 32 to 35.

8. The Applicant was at pains in the hearing to express his commitment to refrain from any further offending. He frequently said that if he had committed offences, he was sorry. He agreed that he has a problem controlling his sexual instincts. When asked what steps he had taken to get treatment, he said all he wants to do is “stay away from bad people, don't drink too much”, and build his relationship with his family. He indicated that he considered it alright to drink a bit with good people, but he struggled to identify who “good people” are. Eventually he said he would find some at the mosque. When he was asked if alcohol was against Islam, he said “I'm not judging anyone”. He indicated he would go to the pub to drink, and that he knows some Somalis there who never have a problem with the police. He thought he would drink once per week.[38] This strikes me as an unrealistic plan, and it is consistent with the lack of insight that those who assessed the Applicant reported.

   [38]    Transcript, page 39, line 46 to page 40, line 4.

9. When it was put to the Applicant that the interim supervision order requires that he not drink alcohol, he indicated that he will do whatever the law requires of him.[39] However, the Applicant’s abuse of alcohol was entrenched behaviour for many years before his most recent incarceration, and he has breached countless court orders and bail conditions. He said he drinks when he sees other people drink, and he holds the belief that he can consume alcohol in certain circumstances without it being a problem. I am not confident that the Applicant would abstain from alcohol merely because the interim supervision order prohibits alcohol consumption.     

   [39]    Transcript, page 49, lines 35 to 38.

10. The Applicant has not done any alcohol rehabilitation or sexual offender rehabilitation counselling or programs. I accept the expert evidence that there is a very high risk that the Applicant will re-offend unless he refrains from drinking alcohol. I accept that learned Judge’s finding that rehabilitation could only occur in the community if the Applicant is closely supervised and his release is highly structured. The interim supervision order provides some structure in the form of prohibitions, however it is not apparent how closely supervised the Applicant would be or what support he would have to assist him to abide by the terms of the order.

11. The Applicant has made enquiries with Offender Aid Rehabilitation Service (“OARS”), South Australia, and he said he would find a counsellor in the Yellow Pages if he is released.[40] It appears that he could do alcohol and sexual offender rehabilitation programs such as the Sexual Behaviour Clinic in the community. However, there is currently no plan for the Applicant to go into a residential rehabilitation facility or any other kind of other environment that has a high degree of structure and supervision. His current sobriety has occurred in a custodial environment where there is a lot of surveillance and structure and where alcohol is prohibited and not easily accessible. Further, the Applicant has previously eschewed a structured, responsible lifestyle and failed to engage with rehabilitation services. Accordingly, despite his assurances that he wants to reform, I am not satisfied that the Applicant would accept structure and close supervision if it were available. Without that, his prospects of remaining sober enough to meaningfully engage in rehabilitation programs seems poor.

    [40]    Transcript, page 36, lines 30 to 39; page 47, lines 1 to 5.

12. The Applicant said he would do paid or volunteer work to assist in his rehabilitation. However, he does not have any offers of employment, and his employment history is very poor. Nor does he have stable accommodation to go to if he is released. One of his brothers lives in Sydney and other lives in Adelaide. Mr A, who lives in Sydney, gave evidence in the hearing. He did not know exactly why the Applicant was in detention but guessed he had committed a crime and he stated that the Applicant is an alcoholic. He said the Applicant ran away from them and had been on the run for years. He is not able to look after the Applicant as he lives in Sydney and has a disability. He said he could assist the Applicant by speaking with their brother in Adelaide and his wife about what they could do to help.

13. The Applicant’s other brother did not give evidence but his wife, Ms B, did. She said that over the last 20 years she and her husband had not seen much of the Applicant. She considers his main problem to be chronic alcohol abuse and gambling. She said when he came to Australia, he was a good person “but he went with wrong people and we lost him”. She knew very little of his offending. She said she could try to get him counselling but their home is not big enough to have him live with them. She suggested finding someone in their community who could take the Applicant into their home and try to rehabilitate him.

14. Ms B has three children who live at home, with the youngest being 14 years old. When she was informed of the offences the Applicant committed against minors, Ms B was not willing to have the Applicant live with her family. She later softened and said he could if he was always supervised and not around her children.

15. That does not seem like a realistic plan and there is still the problem of the house being too small in circumstances where Ms B does not have any current plans to move to a bigger house. She said her husband got upset with the Applicant because of his behaviour and that he would have a relationship with the Applicant if he changes but if he does not change nobody would want to be associated with him. I am not satisfied that the Applicant could live with Ms B and her family. Ms B’s suggestion that she could arrange for someone in the community to have the Applicant in their home was speculative at best: it is not a realistic option at this stage.  

16. Taking the expert evidence and the Supreme Court’s assessment into account, I am satisfied that there is a high risk that the Applicant will re-offend. There is no evidence that the Applicant has raped anyone since 2006 which suggests that there is less of a risk that he would commit that particular offence now. However, I am not satisfied that there is no risk or only a negligible risk of that happening. Given the seriousness of that offending any material risk makes the Applicant a danger to the Australian community. I am satisfied that the high risk applies to assaults and indecent assaults including on young persons. On account of that, the Applicant is a danger to the Australian community.        

17. For completeness I acknowledge that the Applicant referred to trauma in some of his evidence and indicated that it was a factor in his alcohol consumption. Some of the psychological and psychiatric evidence mentioned possible trauma from the Applicant’s experiences before he came to Australia. The Applicant has never been formally diagnosed with a psychological condition relating to trauma. Nor has he ever sought treatment or been treated for trauma. In April 2021 he was offered counselling but declined a referral to a psychologist”[41] and on 23 December 2021 at a mental health screening appointment the Applicant told a psychiatrist that his mental health was fine and he does not need mental health treatment, counselling or medication.[42] There is insufficient evidence of current trauma symptoms for me to take that into account in my assessment of whether the Applicant is a danger to the community.     

    [41]    Exhibit R2, RTB4, page 175.

    [42]    Exhibit A3, page 21 of 68.

    Conclusion

18. I consider on reasonable grounds that the Applicant is a danger to the Australian community for the purposes of subsections 36(1C)(b) and 36(2C)(b)(ii) of the Act.

    DECISION

19. The decision under review is affirmed.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Member R Bellamy

............................[SGD]............................................

Associate

Dated: 4 April 2022

Date(s) of hearing:

14, 15 and 17 February 2022

Applicant:

By videoconference

Solicitors for the Respondent: 

Mr Sam Cummings

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T documents (T1 to T23 paged 1 to 318)	R	-	1 December 2021
A1	Letter from the Applicant (1 page)	A	13 January 2022	13 January 2022
A2	Further Letter from the Applicant (2 pages) (undated)	A	-	23 January 2022
A3	International Health and Medical Service (IHMS) Records	A	-	11 February 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 24)	R	28 January 2022	28 January 2022
R2	Respondent’s Tender Bundle (RTB1 to RTB4, paged 1 to 175)	R	-	28 January 2022
R3	Psychiatric Report of Dr Ian Jennings  (4 pages)	R	20 April 2018	11 February 2022
R4	Psychiatric Report of Dr Paul Furst (9 pages)	R	19 June 2018	11 February 2022