VSGV and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1030

VSGV and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1030 (16 July 2025)
Applicant/s:  VSGV
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2024/1358
Tribunal:Senior Member T Tavoularis
Place:Brisbane
Date:16 July 2025

Decision:
The Tribunal affirms the decision under review dated 5 March 2024 and finds that:
(1)having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
(2)the Applicant is not eligible for a Protection visa pursuant to s 36(1A) of the Act.

...........................[SGD]........................
Senior Member T Tavoularis

Catchwords
MIGRATION – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant engages s 36(2C)(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 Review Tribunal Act 2024 (Cth)
Bail Act 1980 (Qld)
Criminal Code Act 1899 (Qld)
Domestic and Family Violence Act 2012 (Qld)
Drugs Misuse Act 1986 (Qld)
Migration Act (1958) (Cth)
Police Powers and Responsibilities Act 2000 (Qld)
Summary Offences Act 2005 (Qld)
Weapons Act 1990 (Qld)
Cases
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Hartwick v P.E Hack [2007] FCA 1039
HSCK v Minister for Home Affairs (Migration) [2019] AATA 4392
LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
PNLB and Minister for Immigration and Boarder Protection [2018] AATA 162
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174
WKCG v Minister for Immigration and Citizenship [2009] AATA 512
WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38
RWDX v Minister for Immigration and Border Protection (Migration) [2019] AATA 123
Secondary Materials
Ministerial Direction 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b)
Protocol Relating to the Status of Refugees
Statement of Reasons
THE DECISION UNDER REVIEW

On 5 March 2024, the Applicant (“VSGV”) was refused the grant of a Protection (subclass 866) (Class XA) visa (“the visa”). This refusal decision (hereinafter referred to as “the decision under review”) was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent” or “the Minister” or “the Respondent Minister”) and was based on a finding that the Applicant did not satisfy the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth) (“the Act”). Legislative imprimatur for the decision under review is to be found in s 65 of the Act. Legislative imprimatur for this Tribunal’s determination of the instant application derives from s 500(1)(c)(i) of the Act.
BACKGROUND
There is a lack of clarity about the date and place of the Applicant’s birth. In the amended Statement of Facts Issues and Contentions (“SFIC”) filed on his behalf, it is said he “….was born in or about December 1994.”[1] In his application for the visa which, in turn, spawned the decision under review, the Applicant claimed (1) to have been born in Somalia; (2) that he and his family had been caused to flee Somalia for Kenya where he and his family resided from 2005 until 2012; and (3) that he was born in Somalia on 31 December 1994. The Respondent Minister’s delegate who made the decision under review found the Applicant was (1) “…..born in Kenya to Somali citizen parents….”[2] ; (2) that his date of birth “…..is officially recorded as 31 December 1994…..”[3] ; and that (3) “……he is a Somali citizen.”[4] As best as I understood the respective positions of the parties, there was little or contest about the above findings of the delegate. I see no reason to re-visit these elements for present purposes.
[1] A3, p1, [1].
[2] R1, p19.
[3] R1, p20.
[4] R1, p20.
The Applicant arrived here on 16 November 2012. Upon arrival he was granted a Class XB Subclass 200 – Refugee Visa (“Refugee Visa”). From the time of his arrival (in 2012) until 29 August 2018, the Applicant compiled a list of convictions with accompanying custodial sentences sufficient to trigger the mandatory cancellation provisions of the Act. Accordingly, his Refugee Visa was cancelled by a delegate of the Respondent Minister on 27 May 2019. Following this mandatory cancellation, but before any decision was made about its revocation, the Applicant received further convictions in November 2019 and February 2020.
On 15 February 2021, a delegate of the Respondent Minister refused to revoke the mandatory cancellation of the Refugee Visa. The Applicant sought merits review of that non-revocation decision in this Tribunal[5] which, on 7 May 2021, affirmed it. There followed an application for judicial review in the Federal Court which was, on 19 November 2021, duly dismissed. This was followed by an appeal to the Full Court which was also dismissed on 6 June 2022.
[5] Actually, its progenitor, the Administrative Appeals Tribunal, which by virtue of Administrative Review Tribunal Act (2024) (Cth) became the Administrative Review Tribunal.
The Applicant then applied for a protection visa on 28 July 2022. During the currency of that application, the High Court handed down its decision in NZYQ v MICMA (2023) 97 ALJR 1005 (“NZYQ”) resulting in the release of a cohort of non-citizen convicted criminals into our community in November 2023. This Applicant was one of those releasees and he returned to the community as the holder of a Class WR Subclass 070 Bridging Visa R.[6] Until his NZYQ release, the Applicant was initially held in criminal custody until mid-August 2020 at which time he was taken into immigration detention where he remained until his NZYQ release in November 2023.
[6] This visa was renewed in April 2024 and the Applicant remains in the community pursuant to that visa.
Relatively soon after his NZYQ release, the Applicant did, in February 2024, seek and obtain constitutional writs in the Federal Court including a writ of mandamus compelling determination of his application for a protection visa made on 28 July 2022. Pursuant to the duly-made order for mandamus, the Respondent-Minister’s delegate issued the decision under review dated 5 March 2024 which denied the Applicant the visa he now seeks. He now seeks merits review of that decision pursuant to the instant application made to this Tribunal on 7 March 2024. This application proceeded before me on 8 and 9 May, 2025. At the commencement of the hearing, I sought and obtained the approval of both parties to an agreed Exhibit List. A true and correct copy of that list is attached to these reasons and marked ‘ANNEXURE A’.[7]
[7] Note to Reader: Exhibits A6 and R5 were received into the evidence of these proceedings after the hearing and pursuant to Directions made on 9 May 2025.
THE APPLICANT’S OFFENDING HISTORY

The Applicant was born on 31 December 1994 in Kenya. He first came to this country on 16 November 2012 when he was aged 17 years. His movement history indicates he has never left Australia since initially arriving here.[8] His criminal history appears in the material.[9] At first blush, it is apparent that, in terms of sentencing episodes, the history runs from October 2014 (when the Applicant was aged 19 years) until February 2020. The totality of the offending attracted 64 convictions punished at 11 separate sentencing episodes. Caution should be exercised around precisely which sentences this Tribunal can take into account for present purposes.
[8] R1, p 263.
[9] R1, pp 216-219.
At the first sentencing episode, the Applicant received convictions for (1) public nuisance offending and (2) trespassing. These convictions involved the imposition of a fine in the sum of $150 with a notation to this effect ‘no conviction recorded.’ There followed a second sentencing episode in August 2013 resulting in a conviction for further public nuisance offending. A fine of $250 was imposed but, again, the sentence contained the ‘no conviction recorded’ notation. The third sentencing episode was in April 2016 where the Applicant was dealt with for two offences comprising two breaches of an undertaking to appear. The convictions for these two offences involved the imposition of a fine in the amount of $600 but, again, the sentence contained the ‘no conviction recorded’ notation.
The abovementioned caution to be exercised around precisely which sentences can be taken into account by this Tribunal results from s 12 of the Penalties and Sentences Act (Qld) 1992 (‘P&S Act’). Section 12(1) of the P&S Act facilitates a discretion in a sentencing Court to record or not record a conviction. Section 12(3)(a) of the P&S Act provides that ‘a conviction without recording the conviction is taken not to be a conviction for any purpose.’ However, s 12(3A) of the P&S Act provides that:
‘(3A) Despite sub-section [12] (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the department, prosecuting authority or legal representative.’
I am satisfied that (1) the reference in s 12(3A) of the P&S Act to ‘a record kept’ relates to the file created and maintained in relation to the instant matter by the Respondent Minister; and (2) the reference to ‘a department’ in s 12(3A) P&S Act relates to the Respondent Minister’s Department which made the decision under review.
Section 12(4) of the P&S Act provides that ‘a conviction without the recording of a conviction – does not stop a Court from making any other order that it may make under this or another Act because of the conviction.’ I am satisfied that (1) the reference in s 12(4) of the P&S Act to ‘a court’ safely includes this Tribunal; (2) the reference in s 12(4) of the P&S Act ‘making any other order’ refers to the determination of the instant application by this Tribunal; and (3) the reference in s 12(4) of the P&S Act to ‘or another Act’ safely includes the Act.[10]
[10] That is, the Migration Act 1958 (Cth).
It follows that this Tribunal is entitled to take into account the fact of these first five convictions of the Applicant on the basis of ‘…the acceptance of the record and the plea upon which [these convictions were] based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question before the AAT…’[11]
[11] Hartwick v PE Hack [2007] FCA 1039 at [12], per Kiefel J (as Her Honour then was).
This means the Applicant’s offending history is configured thus:
·total number of offences committed: 64;
·number of sentencing episodes: 11;
·period of offending (based on dates of sentencing episodes) from October 2014 to February 2020;
·total amount of fines imposed: $1300;
·cumulative amount of head custodial time: 6.8 years;
·offences committed:
otrespass[12] – unlawfully enter or remain in dwelling or yard (x2);
[12] Section 11(1) of the Summary Offences Act 2005 (Qld).
ocommit public nuisance[13] (x4);
[13] Section 6(1) of the Summary Offences Act 2005 (Qld).
ofailure to appear in accordance with undertaking[14] (x2);
[14] Section 33(1) of the Bail Act 1980 (Qld)
opossession of a knife in a public place[15] (x1);
[15] Section 51(1) of the Weapons Act 1990 (Qld).
othreatening violence -discharge firearms or other act[16] (x1);
[16] Section 75(1)(b) of the Criminal Code Act 1899 (Qld).
ocontravention of domestic violence order[17] (x1);
[17] Section 177(2)(b) of the Domestic and Family Violence Act 2012 (Qld).
ocontravene direction or requirement[18] (x2);
[18] Section 792(2) of the Police Powers and Responsibilities Act 2000 (Qld).
oassault or obstruct police officer[19] (x7);
[19] Section 790(1) of the Police Powers and Responsibilities Act 2000 (Qld).
opossess property suspected of having been used in connection with the commission of a drug offence[20] (x1)
[20] Section 10(A)(1)(b) of the Drugs Misuse Act 1986 (Qld).
opossess utensils or pipes etc that had been used[21] (x2);
[21] Section 10(2)(b) of the Drugs Misuse Act 1986 (Qld).
opossessing anything used in the commission of crime[22] (x1);
[22] Section 10(1)(b) of the Drugs Misuse Act 1986 (Qld).
osupplying dangerous drugs[23] (x10);
[23] Section 6 of the Drugs Misuse Act 1986 (Qld).
oassault or obstruct police officer in public place while adversely effected by intoxicating substance[24] (x1);
[24] Sections 790(1) and 790(2A) of the Police Powers and Responsibilities Act 2000 (Qld).
ounlawful entry of vehicle for committing indictable offence at night[25] (x3);
[25] Sections 427(1) and 427(2)(a) of the Criminal Code Act 1899 (Qld).
obreach of bail condition[26] (x2);
[26] Section 29(1) of the Bail Act 1980 (Qld).
oattempted fraud – dishonestly obtains property from another[27] (x3);
oattempted fraud – dishonest application of property of another[28] (x7);
ofraud – dishonestly obtains property from another[29] (x3);
ofraud – dishonest application of property of another[30] (x5);
othreats[31] (x1);
orobbery armed/in company/wounded/used personal violence[32] (x1);
oassaults occasioning bodily harm whilst armed/in company[33] (x2);
owounding[34] (x1); and
obreach of community service order imposed on 29/8/2017 (x1).
[27] Sections 408C(1) and 408C(1)(b) and 535 of the Criminal Code Act 1899 (Qld).
[28] Sections 408C(1)(a)(i) and 535 of the Criminal Code Act 1899 (Qld).
[29] Section 408C(1)(b) of the Criminal Code Act 1899 (Qld).
[30] Section 408C(1)(a)(i) of the Criminal Code Act 1899 (Qld).
[31] Section 359 of the Criminal Code Act 1899 (Qld).
[32] Sections 411(1) and 411(2) of the Criminal Code Act 1899 (Qld).
[33] Sections 339(1) and 339(3) of the Criminal Code Act 1899 (Qld).
[34] Section 323(1) of the Criminal Code Act 1899 (Qld).
However, out of an over-abundance of caution, and with all possible fairness extended to this Applicant, I will not, for present purposes, have regard to the offences that were convicted by reference to a “no conviction recorded” notation in the sentencing narrative. This means the total number of offences I will take into account for present purposes is 59, the total amount of sentencing episodes is reduced from 11 to eight and the total amount of cumulative fines reduces from $1,300 to $300.
LEGISLATION
Ancillary provisions
Section 4(1) of the Act describes its object thus: ‘The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ In terms of how the object of the Act is brought into practical effect, s 4 contains the following relevant provisions:
‘(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
…
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.’
Section 29 of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia, and/or remain in Australia. Pursuant to s 13 of the Act, a person who holds a visa is a lawful non-citizen. It follows that a person who does not hold a visa is, pursuant to s 14 of the Act, an unlawful non-citizen.
Until his release from detention in or about March 2024 pursuant to NZYQ, the Applicant was an unlawful non-citizen and had thus been held in immigration detention pursuant to section 189 of the Act. If the Applicant is not granted the visa he seeks, his capacity to remain in Australia will presumably depend on him being granted a renewed bridging visa. If he is not successful in the instant proceeding and the Respondent does not grant him a further bridging (or other) visa, he will be presumably liable to removal from Australia as soon as reasonably practicable.
Section 45 of the Act facilitates applications for visas. Section 46 of the Act stipulates the criteria for a valid visa application. Schedule 1 to the Migration Regulations 1994 (Cth) (‘Regulations’) sets out the specific ways in which a non-citizen applies for a visa of a given class[35]. Section 47 of the Act provides that the Minister must consider a valid application for a visa[36] and must not consider an application that is not a valid application.
[35] In this case, the Protection (subclass 866) (Class XA) visa.
[36] This has occurred via the decision under review made on 8 July 2020.
Briefly summarised, s 65 of the Act provides that, after considering a valid application for a visa, if the Minister is satisfied that:
(a) the health criteria (if any) for the grant of the visa have been satisfied; and
(b) the other criteria for the grant of the visa have been satisfied; and
(c) the grant of the visa is not prevented by other sections of the Act; and
(d) any visa application charge payable has been paid,
- the Minister is to grant the visa[37]. If not so satisfied, the Minister is to refuse to grant the visa[38].
[37] Section 65(1)(a) of the Act.
[38] Section 65(1)(b) of the Act.
If the Minister is minded to grant a visa, s 30 of the Act allows for the granting of both permanent and temporary visas. Section 31 of the Act further provides for specific classes within the respective categories of permanent and temporary visas. The specific classes of visas are also capable of prescription by regulations enabled by the Act.
With specific reference to protection visas, s 35A of the Act provides for two specific classes of such visas. They comprise (1) “permanent protection visas” pursuant to s 35A(2) of the Act and (2) “temporary protection visas” pursuant to s 35A(3) of the Act.
The grant of a protection visa requires an applicant to meet certain criteria. They are contained in s 36 of the Act and Schedule 2 to the Regulations.
Subsection 36(2) of section 36 of the Act relevantly provides:[39]
‘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;
…’
[39] The Applicant does not claim to engage either of ss 36(2)(b) or (c) – his immediate family members still hold subclass 202 Global Special Humanitarian visas (Exhibit T1, T2, page 17).
Given the language of these respective subsections to s 36(2) of the Act, I will refer to the specific criteria in s 36(2)(a) of the Act as the ‘Refugee’ criteria. I will refer to the specific criteria in s 36(2)(aa) of the Act as the ‘Complementary Protection’ criteria.
Most relevant provisions for present purposes

Most relevantly for present purposes is the criterion for the grant of a protection visa stipulated in s 36(1C)(b) of the Act. It 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.’
[My emphasis].
26.Section 36(2C)(b) largely mirrors s 36(1C), and relevantly 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, is a danger to the Australian community (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.’
[My emphasis].
What constitutes a ‘particularly serious crime’?

To determine whether an offence constitutes a ‘a particularly serious crime’ for the purposes of ss 36(1C)(b) and 36(2C)(b), reference must be had to s 5M of the Act which provides:
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) “a serious Australian offence”; or
(b) “a serious foreign offence”.’
The Respondent does not contend that the Applicant has committed a serious foreign offence. There is no reference to the commission of any such offence in the material presently before the Tribunal.
For an understanding of what constitutes a “serious Australian offence”, reference must be had to s 5 of the Act which relevantly provides:
‘serious Australian offence means an offence against a law in force in Australia, where:
(a)the offence:
(i)     involves violence against a person; or
(ii)    is a serious drug offence; or
(iii)   involves serious damage to property; or
(iv)   is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)     imprisonment for life; or
(ii)    imprisonment for a fixed term of not less than 3 years; or
(iii)   imprisonment for a maximum term of not less than 3 years.’
Assessing whether a person is a ‘danger to the Australian community.’
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions[40] or the exercise of those powers.[41]
[40] The Act, s 499(1)(a).
[41] Ibid, s 499(1)(b).
Section 499(2A) of the Act provides that a person or body having functions or powers under the Act must comply with a direction issued pursuant to s 499(1) of the Act. For present purposes, the relevant direction dates from 6 September 2017 at which time the Minister for Immigration and Border Protection[42] issued Ministerial Direction 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b) (‘Direction 75’ or ‘MD 75’). It governs delegates of the Respondent Minister in the process of considering valid applications for Protection visas under section 47 of the Act and in the performance of their functions or the exercise of their powers pursuant to s 65 of the Act to grant or refuse to grant Protection visas.
[42] A previous title of the Respondent Minister in the instant application.
In determining whether a person constitutes a danger to the community of Australia guidance is found in the decision of a past Deputy President of this Tribunal in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 (‘WKCG’). In that decision, Deputy President Tamberlin QC established a multi-component test for assessing whether a person constitutes a danger to the Australian community. The components of that test compel the following assessments:
(1) the seriousness and nature of the crimes committed, the length of the sentences imposed, and any mitigating or aggravating circumstances;
(2) the criminal record in totality – including the extent and nature of any prior convictions and the period over which they took place;
(3) the risk of re-offending and recidivism and the likelihood of re-lapsing into crime; and
(4) any prospects of rehabilitation.[43]
[43] See WKCG para [26].
In WKCG, Deputy President Tamberlin QC explained that whether a person is a danger to the Australian community is a question of fact and degree.[44] The learned Deputy President said the task for the Tribunal in answering this second question in s 36(1C)(b) is as follows:
‘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.’
[44] See WKCG para [25].
In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”), Logan J explained that for s 36(1C)(b) to be made out, the Tribunal has to be satisfied that the Applicant ‘is and will into the indefinite future be a danger, not that the person once was a danger.’[45] Logan J further explained that danger ‘means present and serious risk.’[46] Beyond the factors identified in WKCG, I must also have regard to all substantial, clearly articulated and relevant contentions propounded by the parties[47].
The principles in Direction 75[48].
[45] DOB18, para[75].
[46] Ibid, para [83].
[47] See generally LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 167 ALD 17 25[31]–27[40] and the cases cited in those paragraphs.
[48] Ministerial Direction No 75 – Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b), made under s 499 of the Act (on 6 September 2017), requires Departmental decision-makers to consider a Protection visa applicant’s refugee and complementary protection claims under ss 36(2)(a) and (aa) before considering any character or security concerns.
In considering an application for a protection visa, Direction 75 compels delegates to consider (1) whether an applicant meets the Refugee criteria in s 36(2)(a) of the Act; and (2) the Complementary Protection criteria in s 36(2)(aa) of the Act before considering the disqualifying criteria in ss 36(1C) and s 36(2C) of the Act or considering refusal on character grounds under s 501 of the Act.
Direction 75 can be differentiated from other directions such as Ministerial Direction 110 because it (Direction 75) does not bind the Tribunal for the purposes of merits review. Additionally, directions made pursuant to s 499 of the Act do not personally bind the Respondent. Therefore, the operative effect of Direction 75 does not extend to compelling this Tribunal to undertake its own assessment of whether this Applicant meets the Refugee criteria or the Complementary Protection criteria as a necessary precursor to considering the extent to which the disqualifying criteria in ss 36(1C) and 36(2C) apply to this Applicant.[49]
[49] See discussion by Senior Member Furnell in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38 at [175]. See also discussion by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 at [76]–[78] and HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [151]–[153].
It is clear from the decision under review that the delegate acted in accordance with Direction 75 and made the necessary assessment about whether the Applicant met the Refugee Criteria and the Complementary Protection criteria prior to considering the relevant disqualifying criteria located in ss 36(1C) and 36(2C) of the Act. In terms of the first part of the delegate’s analysis, the delegate was “….satisfied that [the Applicant] is a refugee as defined by s 5H(1) of the Act”[50] and that the Applicant satisfied the Refugee Criteria in s 36(2)(a) of the Act.
[50] R1, p 507.
There was a similarly favourable finding that the Applicant met the complementary protection criterion appearing in s 36(2)(aa) of the Act. The delegate was “….satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to the receiving country, [the Applicant] will suffer significant harm.”[51] The delegate concluded that the Applicant “….is a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act.”[52]
[51] R1, p 509.
[52] R1, p 509.
In their respective submissions, neither party agitated the delegate’s findings in relation to either s 36(2)(a) or s 36(2)(aa) of the Act. Therefore, I will not predicate my findings about s 36(1C) of the Act on the basis of whether or not the Applicant satisfies the relevant criteria attaching to either of these elements.
LEGISLATIVE HISTORY OF SECTION 36(1C)
The enactment of s 36(1C) of the Act represented the legislative codification of Article 33(2) of the United Nations Convention Relating to the Status of Refugees. This Convention was adopted in 1951 and was, in turn, amended in 1967 by the Protocol Relating to the Status of Refugees (‘Refugees Convention’).
The relevant components of Article 33 of the Refugees Convention comprise, firstly, Article 33(1) which says:
‘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.’
And, secondly, Article 33(2) of the Refugees Convention which places limits on the extent to which a refugee can avail himself/herself of the grounds stipulated in Article 33(1):
‘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.’
At the time of the tabling of s 36(1C) before the Parliament, the relevant Explanatory Memorandum to the amendment intended by the introduction of this section said the following:
‘The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa. This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.’[53]
[53] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 12.
The then-Minister’s Explanatory Statement noted that the introduction of s 36(1C) into the Act, created: ‘…a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.’[54] The net effect of s 36(1C) is thus to replace the previous methodology of how a person was determined to be a refugee. Previously, such a determination was made by reference to the Refugees Convention. After the introduction of s 36(1C), that determination was able to be made without reliance on the Refugees Convention or any external interpretations of it.
[54] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 10.
The language appearing in, respectively, Articles 33(1) and (2) of the Refugees Convention requires a two-step determinative process when addressing the question of whether someone could be found to be a refugee. First, there had to be a determination of whether a person ‘has been convicted by final judgment of a particularly serious crime’. If the answer to that question is in the affirmative, a second determination must then be made about whether that person constitutes a danger to the community. An identical two-step approach now appears in s 36(1C) in the determination of whether a person is excluded from the grant of a protection visa.
OVERVIEW OF THE EVIDENCE
The evidence of the Applicant
The Applicant has sworn three affidavits, respectively, on the 9 May 2024, 15 March 2024 and that 19 February 2024. He is most recent statement is dated 31 July 2024 and, together with the three earlier – mentioned affidavits, is to be found in the material.[55] In this most recent statement, the Applicant confirms that he currently lives with his mother and other siblings in an outer southern Brisbane suburb. He says that since his release from immigration detention in March 2024, he has not been charged with or convicted of any criminal offences and has not otherwise at any other interactions with law enforcement.
[55] See A2, documents 1-4, inclusive.
In this latest statement, the Applicant provides some detail around his rehabilitation to date and provides an assurance that he intends to continue that rehabilitation to ensure he remains free from offending and thus remain in the mainstream community. He referred to being in receipt of telephone counselling from QPASST[56] on a fortnightly basis since his release from immigration detention as an NZYQ releasee. The Applicant had interacted with QPASST during his time in immigration detention from 2020 until he was released into the community in March 2024. His sessions with the QPASST representative (“Cassie”) included discussion about the applicant’s day to day life, stressors impacting his life together with his immediate and longer term goals. In this latest statement the Applicant talks about having an intention to continue this counselling with QPASST if allowed to remain in the community.
[56] Queensland Program of Assistance to Survivors of Torture and Trauma.
In this latest statement the Applicant also refers to being in receipt of mental health counselling from ‘Linda’ at SSI[57] in his local area. The Applicant says he initially met Linda after his release from immigration detention. He continues to see her on a weekly or fortnightly basis. Similar to QPASST, he Applicant says he speaks with Linda about his day-today life, any stressors currently impacting his life and his future goals. This latest statement also refers to a “weekly reporting meeting” with his “immigration case manager” during which he is asked to provide an update on anything notable that might be occurring in his life.
[57] Settlement Services International: an organisation providing settlement support services to newcomers and refugees. The SSI initiative is funded by the Queensland Government.
The Applicant says he attended (via an on-line participation) approximately eight Smart Recovery sessions since his NZYQ release in March 2024 and that he plans to keep attending these sessions “for the foreseeable future”.[58] He says he has completed 20 Smart Recovery sessions during his time in immigration detention. This latest statement also refers to the Applicant having completed the following additional courses: (1) “Alcohol & Drug Awareness Course”; (2) “Man Up”; and (3) “Healthy Relationships”.[59]
[58] A2, p 3, fourth bullet point on that page, [15].
[59] A2, p 4, [16].
In terms of community participation, the Applicant refers to performing volunteer and unpaid work in producing clothing for the Somali community. In terms of remunerative employment, the Applicant says “I am also attending job seeker appointments through Centrelink and am actively seeking suitable employment.”[60] He refers to a problem with his hip which has made it difficult for him to find suitable employment but he adds that “…….once my hip issue is fixed, I intend to find a job with a car mechanic as I have experience in that job. I have also completed a certificate in welding, that could be another option that I might pursue once I can return back to work.”[61]
[60] A2, p 4, first bullet point on that page, [15].
[61] A2, p 4, first bullet point, [15]..
The Applicant now claims to have found solace and strength in his Muslim faith. He refers to having “…..made a promise to God in detention that I will refrain from illegal activities if I was to be given another chance.”[62] He says that in the time he has been in the community, he has spent a lot of time every day praying and attending his local mosque. While attending his local mosque, he has come to know “…..a lot of people that are law abiding, God fearing and making a positive contribution to [the] Australian community on a day-to-day basis.[63] This re-connection with his faith has involved the Applicant, together with his nephew, receiving instruction about the Muslim faith’s holy book, the Quran, from the Imam of their local mosque. The Applicant says the Imam “…..often tells me to stay away from bad friends, drugs, crime and alcohol and that all of these things are prohibited in Islam.”[64]
[62] A2, p 3, third bullet point on that page.
[63] A2, p 3, third bullet point on that page.
[64] A2, p 3, fourth bullet point on that page.
In terms of remorse, the Applicant says: “I accept complete responsibility for my criminal offending in the past. I am embarrassed and ashamed of my conduct and am very remorseful for what I did. I…..am regretful for what I did. I sometime [sic] cannot believe how stupid I was to commit those crimes and cause serious harm to others. My actions were unacceptable and I will never repeat them again.”[65]
[65] A2, p 4, [17] and [18].
In terms of rehabilitation, the Applicant claims to have reached an understanding that drug and alcohol abuse issues “…..have played a role in my past criminal offending”.[66] He refers to the treatment he received in immigration detention aimed at dealing with the issues predisposing him to re-offend. He refers to the continuation of this treatment since his return to the community in these terms: “I have continued to undergo voluntary rehabilitation even in the community since my release and am firmly committed to continuing with my rehabilitation in the future.”[67]
[66] A2, p 4, [20].
[67] A2, p 4, [19].
He claims to have cut ties with negative peer group with whom he previously associated while offending. He wants to resume his parental responsibilities as a father to his two daughters. He talks about assisting in the care of his aging parents whom he says have severe health issues. He wants to “…….focus on improving my and my family’s life and ensuring that my younger siblings do not go astray like I did.”[68]
[68] A2, p 5, [21].
In his oral evidence in chief, the Applicant re-confirmed that he resided in an outer southern Brisbane suburb with his mother, his younger sister and his two younger brothers. He also told the hearing about his two daughters from two past relationships, Child N and Child H. Neither of these two children (daughters) reside with the Applicant. The eldest child is aged 10 years and has been removed from her mother’s care by the child safety authorities and is now in foster care. This removal was due to concerns the authorities had about the mother’s illicit drug use. The younger child is aged eight years and she resides with her mother in an outer northern Brisbane suburb.
He was taken to the portion of his abovementioned latest statement (made on 31 July 2024) in which he acknowledged that illicit drug use and alcohol had played a role in his past offending. He told the instant hearing that he had not used any alcohol or drugs since his release from immigration detention in March 2024 and that no-one in the household in which he currently resides uses illicit substances. He also told the instant hearing that he was taking prescribed medication (Mirtazapine and Olanzapine) every evening to deal with his mental health symptoms arising from trauma he says he experienced earlier in his life.
He said he has not re-offended since 2019 in which year he committed the offences of ‘wounding’, and ‘assaults occasioning actual bodily harm whilst armed / in company (two counts). He was asked about the extent of his current engagement with rehabilitative therapy and he said he sees one therapist every fortnight and two others on a monthly basis. In particular, he said he attends SMART Recovery sessions on a weekly basis. He spoke of his new-found connection with his Muslim faith which has caused him to attend his local mosque and receive religious instruction from the Imam working at that mosque.

In terms of his engagement in remunerative employment, the Applicant said that physical problems with his hip currently prevented him from engaging in remunerative employment. With reference to his recidivist risk, the Applicant referred to several factors that militated against any such risk. First, said his new-found connection with his faith had caused him to make a promise to God that he would now do the right thing if given a further chance to remain in Australia. Second, one of younger brothers was apparently unwell and the Applicant is involved in his ongoing care with other members of the household in he (the Applicant) currently resides. Third, he said he has cut ties with past negative peer groups with whom he associated. Fourth, he said he had managed to overcome the cultural stigma associated with those seeking professional assistance for mental health issues. Fifth, he spoke of spending more time with his family, looking after his mother who is getting older and his abovementioned younger brother who is unwell. Sixth, in terms of dealing with future life stressors, he said he would remain connected to the rehabilitative process and seek professional assistance in dealing with those challenges.
The Applicant was also cross-examined. He appeared to readily accept that he committed the offences for which he was dealt with at the Beenleigh Magistrates Court in 2017, 2018 and 2019. There followed some questions about the nature and extent of his current engagement with rehabilitation. He described the SMART Recovery sessions he has attended as sessions involving him participating in an on-line group discussion with other individuals who shared a similar illicit drug history to him. He described the discussions involved the participants each outlining their intention to remain drug-free. He said he last attended a SMART Recovery session about a month before the instant hearing.
The Applicant was also questioned about the sessions he had undertaken with Ms Bonny Turner who is a “Dual Diagnosis Clinician” attached to the Australian Community Support Organisation (“ACSO”). Ms Turner’s report relevantly appears in the material.[69] The Applicant said he was participating in sessions with Ms Turner while he was in immigration detention as well as when he was in prison. His evidence was that he last saw Ms Turner about a month before the instant hearing but had been told he could no longer see her because she had resigned from the clinic where she had previously worked. He said he was awaiting referral to another psychologist.
[69] A6.
There followed some questions about the nature and extent of the Applicant’s involvement with the Logan Drug and Alcohol Service and he said he was currently attending that service on a monthly basis and that he had been doing so since his NZYQ release in March 2024. He referred to his caseworker at this service as “Gaby” and that she facilitates his participation in group therapy sessions with other illicit drug users. These group sessions were organised via the service sending a text message to the Applicant notifying him of a forthcoming group session. He told the instant hearing that the last time he attended such a group therapy session was in February this year. He said the further purpose he attends this service is to receive his monthly injection of Buvidal which is drug intended to treat dependence on opioid (narcotic) drugs such as heroin or morphine.
The Applicant was taken to his evidence-in-chief during which he spoke of the prison time he received in 2019 having had some sort of changing effect on him. He attributed this claimed changed effect to the sheer length of his incarceration involving going to prison consequent upon the sentence he received in November 2019 plus his following placement into immigration detention. The totality of this period of removal from the Australian community did not end until his NZYQ release in March 2024.
He denied ever having taken drugs or consumed any alcohol since his NZYQ release back into the community in March 2024. He told the instant hearing that the last time he used illicit drugs was in December 2016 and the last time he drank alcohol was in 2019 at the time of his arrest for the offences for which he was sentenced in November 2019. He was challenged about his claimed last date of illicit drug use being 2016 on the basis of what he told Dr Morgan: the Applicant told Dr Morgan he habitually used cannabis between 2015 and 2017. The Applicant was adamant that the last time he used illicit drugs was in 2016 and he said any reference to the contrary in Dr Morgan’s report must be a mistake. The Applicant said his last use of illicit drugs in 2016 involved him taking one puff on a marijuana cigarette presented to him by a friend at a party in 2016.
The Applicant was also taken to the portion of Dr Morgan’s report that records the Applicant’s irregular use of benzodiazepine medication between 2016 and 2018 and was asked if this reference was correct. In response to whether this reference was correct, the Applicant said two things: first, this benzodiazepine medication was not prescribed to him, it was acquired by illicit means; and second, that he acquired this medication from a friend as a means of dealing with stress the Applicant was experiencing at that time. The Applicant told the hearing that he did not know how to seek help for these stressful feelings which, according to him, culminated in him trying to take his own life. This suicide attempt occurred in 2018.
The Applicant further confirmed what he told Dr Morgan about using Suboxone (a drug used to treat dependence on opioid drugs) during his time in prison. Specifically, he confirmed that he obtained the Suboxone from other inmates during his time in criminal custody. He was then asked about whether he had ever used heroin. He was adamant that he has never used heroin. He said he could not recall having told anyone that he had ever used heroin. His cross-examiner then cautioned him about this answer and to think carefully about it. Again, the question was put to him whether he could recall any time in his life when he may have told someone that he used heroin. He eventually responded by saying he might have told some people about his use of heroin but could not recall who they were.
It was then put to the Applicant that he told Dr Morgan he may have reported heroin usage to someone in the past as a means of securing a place in a rehabilitative program. As best as I understood his evidence, the Applicant sought to explain his telling others about his past heroin usage on the basis of getting access to the program that administered the Buvidal injection. He said he unsuccessfully tried to get onto this program while in criminal custody but that he successfully got onto it while he was in immigration detention. Despite Buvidal being a drug used to treat dependence on opioids like heroin or morphine, the Applicant said he was seeking the Buvidal as a painkiller for pain he was experiencing in his hips.
The applicant was then taken to a portion of the IHMS[70] records dated 17 March 2023 (while the Applicant was in immigration detention) which reads as follows: “Opiates: first tried heroin age 21, smoking and injecting daily until age 23. The started using Suboxone from age 23, smoking and injecting this daily ever since.”[71] After the Applicant was given an opportunity to read this record, it was squarely put to him that he had in fact used heroin in the past. The Applicant defaulted to an answer along the lines of not being able to remember whether or not he had previously used heroin and that he was “probably sure” he had never used heroin at any stage in his life.
[70] Note to reader: IHMS is the acronym for “International Health and Medical Services.”
[71] R3, p 215.
The Applicant’s evidence then took a somewhat bizarre turn. He purported to suggest that any inconsistency between his own evidence about heroin use and what he reported to Dr Morgan could be attributable to a perhaps unclear telephone or video link line between him and Dr Morgan when Dr Morgan was conducting his examination. The lack of clarity in the phone or video line was said to be due to the presence of Cyclone Alfred in South East Queensland at that time. Because of this apparent lack of clarity on the line between them, the Applicant was purporting to suggest Dr Morgan may have misunderstood his answer on the question of past heroin use. I reject this vacuous and absurd evidence out of hand.
The questioning then moved to a more personal perspective and the Applicant was asked whether he was in a relationship at the moment. He answered in the negative. He was then asked whether one of the reasons he wanted to stay in Australia was to try and obtain custody of one of his two daughters, specifically the daughter who was presently in foster care. As best as I understood his evidence the Applicant purported to say (1) that certain conductions attached to his visa made it difficult for him to spend time with his daughter and (2) although he had made contact with the child protection authorities, there was no formal procedure or steps in place facilitating the Applicant obtaining custody of the subject child.
The questioning then focussed on any current medical treatment the Applicant may have been receiving. He was asked whether, in addition to the counselling support referred to earlier in his evidence, he was consulting with any medical practitioners about his symptoms. He said he had consulted with medical practitioners earlier this year and that he would resume doing so again very soon. He said he was due to see a physiotherapist but was unable to do so because the physiotherapist was away on holiday. He purported to clarify this evidence by saying he actually sees a local medical officer once a month and that this local medical officer had referred him to a physiotherapist but that he (the Applicant) could not see the physiotherapist because he was away on holiday.
The Applicant was asked about the family members with whom he was currently residing. He spoke about being physically restrained because of his hip issues and not being able to walk long distances. He said his family members supported him in terms of getting to appointments because he was not currently driving. He spoke of his mother who he said provided him with a lot of advice and who assists him with his more rudimentary daily needs.
The evidence of Dr Steve Morgan
Dr Steve Morgan is an eminently qualified and vastly experienced Registered Psychologist who has been in private practice since 2001. He provided both oral and written evidence to the instant hearing. His written evidence comprises his report dated 10 March 2025 which relevantly appears in the material.[72] For the purposes of compiling his report, Dr Morgan interviewed the Applicant by video link on 5 March 2025 (for 75 minutes) and 6 March 2025 (for 45 minutes). There followed respective telephone discussions on 9 March 2025 (for 10 minutes) and on 10 March 2025 for 45 minutes.
[72] A4.
In terms of assessing the Applicant’s current recidivist risk, Dr Morgan applied (or sought to apply) three testing methodologies. First, MMPI-3[73] is a psychological assessment test that facilitates a comprehensive review of adult personality, psychopathology and mental disorders. Dr Morgan reports being unable satisfactorily assess the Applicant pursuant to this methodology and found the Applicant’s response “….effort was obliged and deemed to be invalid. He [the Applicant] advised being unable to complete it due to internet access and also concentration challenges.”
[73] Acronym for: “Minnesota Multiphasic Personality Inventory – 3”.
Second, Dr Morgan applied the VRAG[74] testing methodology which is an internationally recognised actuarial tool for the prediction of violent recidivism. Dr Morgan opined that the Applicant’s “…..test score indicated his risk of violent re-offending as being in the medium range.”[75] [Emphasis in original]. Third, Dr Morgan applied the HCR-20-V3[76] testing methodology which he describes as a dynamic structured professional judgment system to evaluate violent risk and whose purpose is to structure clinical decisions about the likelihood of violent behaviour and to inform risk-reducing treatment and management strategies. In applying this methodology, Dr Morgan opined: ‘The overall impression is of low likelihood of violent re-offending, however with a moderate-high case prioritisation (and thus moderate-high treatment needs to maintain this mitigated low risk). His imminent risk of violence is low. His low risk will likely remain so for as along as this scaffolding of support remains intact, and he complies with treatment...’[77] [My emphasis].
[74] Acronym for “Violence Risk Appraisal Guide (VRAG)”.
[75] A4, p 26, [61.0].
[76] A4, p 26, [61].
[77] A4, p 27, [62.0].
In the briefing letter from the Applicant’s legal representatives, six questions were put to Dr Morgan. To my mind, the most fundamental of those questions were the following. The first of them sought his opinion about whether the Applicant from any mental health condition. Dr Morgan opined thus: “[The Applicant] impresses as best meeting the criteria for Post-Traumatic Stress Disorder [PTSD], the symptoms of which would seem to persist, however be stable – aided by his access to multiple therapeutic engagement, indeed that is ongoing.”[78] And further, “[The Applicant] may have met the criteria for Major Depressive Disorder of Dysthymia historically, however it is difficult to offer assertive retrospective diagnostic views.”[79]And further still, “In diagnostic terms, I am compelled to the view of [the Applicant] previously experiencing Polysubstance dependency. He does not presently meet the criteria for this……”[80]
[78] A4, p 29.
[79] A4, p 29.
[80] A4, p 30.
The second of the fundamental questions put to Dr Morgan sought his views about the Applicant’s “…risk of reoffending generally…”. Dr Morgan opined thus: “In strict actuarial terms, utilising the VRAG instrument, [the Applicant] is obliged to be assessed as being at medium risk of reoffending. …..He is, by virtue of his personal history and history of offending, unlikely to be able to greatly ameliorate or lower this risk.”[81] Dr Morgan sought to counterpoint this finding with the result he produced by application of the HCR-20-V3 methodology: “Utilising the dynamic HCR-20-V3, I note risk mitigation and thereby some lowering of risk. In descriptive terms, his risk is dynamically reduced from medium to low…..”[82] However, and importantly, Dr Morgan predicated this specific finding on an assumed “persistence with treatment”[83] and the continued presence of the “scaffolding of support”.[84]
[81] A4, p 31.
[82] A4, p 31.
[83] A4, p 31.
[84] A4, p 31.
Dr Morgan is of the view that if the Applicant persists with engagement in rehabilitative treatment and retains the scaffolding of support around him, it “……may allow [the Applicant’s] risk to be consolidated as low.”[85]He identified a further factor consolidating the Applicant’s recidivist risk towards low to be an absence of offending since the Applicant’s NZYQ release in March 2024 and an absence of offending from 2019. In expressing a final observation, Dr Morgan said “……whilst I am obliged to note the assessment of [the Applicant’s] risk as being within a low-medium range conceptualisation, it is also salient to note his risk being on a trajectory of reduction from 2019.[86]
[85] A4, p 31.
[86] A4, p 32.
Dr Morgan also gave oral evidence to the instant hearing. He commenced is evidence in chief by confirming that he had re-read his report of 10 March 2025 and that had no changes to make to it. To my mind, the main thing to come out of Dr Morgan’s evidence-in-chief arose when he was taken to paragraph 21.2 on page 10 of his report. There, Dr Morgan records the Applicant telling him this: “He denied any use of heroin (but stated that he claimed to have used it “to get on the program” – this in turn to manage chronic pain).” It was put to Dr Morgan that earlier in the instant hearing, the Applicant had said in his oral evidence that he (Dr Morgan) may be mistaken or incorrect in recording what appears at the subject paragraph 21.2 of the report – that is, that that the Applicant may have told someone at an earlier stage he had used heroin “to get on the program”.
Dr Morgan was asked whether he agreed or disagreed with the Applicant’s oral evidence that he (Dr Morgan) simply got this part of his report wrong. I found Dr Morgan’s response to be somewhat equivocal because he suggested (1) he would have to re-interrogate the Applicant to clarify this item; (2) that he had little more to add to this impasse between his report and the Applicant’s oral evidence; (3) there is always a risk of misunderstanding between him and the Applicant; and (4) that it (past heroin use) was something he asked the Applicant on more than one occasion during their consultations.
I sought to intervene at this point and pressed Dr Morgan for a more equivocal response on this item. I took Dr Morgan to the content of paragraph 21.2 of his report and reminded him of the Applicant’s earlier oral evidence that he did not say anything to Dr Morgan about telling others about past heroin use “to get on the program.” I asked Dr Morgan to be more definitive in his response and to tell us whether the Applicant’s oral evidence was wrong or whether his report was wrong. Dr Morgan was clear that (1) he has reported what the Applicant told him and, as a consequence, (2) the Applicant’s oral evidence was wrong.
Dr Morgan was also cross-examined. He was referred to his finding of there being a low likelihood of violent re-offending pursuant to the HCR-20-V3 testing methodology and agreed with the proposition that a low risk did not mean there was no risk of violent recidivism. Dr Morgan further agreed that to sustain a lower likelihood of violent re-offending the Applicant will need to have continued access to the “structured supports” to which he refers in his report. He was asked to define the elements of this structured scaffolding of supports.
As best as I understood his evidence, Dr Morgan identified those elements as: (1) the availability of good support from a General Practitioner / local medical officer; (2) he will need to continue taking the psychiatric medication prescribed to him; and (3) he will need to maintain a pattern of counselling contact with Ms Ajla Sisic-Bijedic, the Counsellor from QPASST. Dr Morgan also thought the involvement of a psychologist may be of some value in assisting the Applicant in making sound social judgments and avoiding situations of risk.
Ultimately, Dr Morgan said the three critical things supportive of any likelihood of the Applicant sustaining a low likelihood of violent re-offending are (1) his continuation of treatment for post-traumatic stress disorder; (2) a continued avoidance of alcohol and illicit drug use; and (3) the Applicant remaining cautious in his social engagements with anti-social peer groups or gangs and illicit drug users.
The report of Ms Bonny Turner – ACSO.
I will, out of an abundance of caution, briefly and cautiously refer to the report of Ms Bonny Turner to which I have referred earlier in these Reasons. The report discloses that between August 2024 and January 2025, the Applicant attended 14 telephone counselling sessions each between 1-2 hours duration. These sessions sought to provide the Applicant with a level of psychoeducation involving strategies he could deploy to identify factors behind his symptoms and to otherwise assist him with emotional regulation and mental health management.
Applying standardised self-reporting measures to identify and manage the Applicant’s symptoms, the report records the Applicant reporting symptoms consistent with complex post-traumatic stress disorder and an anxiety disorder. The report makes reference to a range of protective factors against the Applicant returning a pattern of violent recidivism. They are said to comprise ongoing support from his immediate family members, his re-found connection to the Muslim faith, a connection with pro-social peers, a regular attendance at medical appointments and an intensive engagement with the abovementioned SSI. The report refers to an apparently regular pattern of engagement with rehabilitative appointments and the Applicant having strong commitment to his recovery.

The report concludes with the following recommendations: (1) that the Applicant “…..continue to engage with medical services to maintain stability of his mental and physical health”[87]; (2) that he “…..prioritises investigating the underlying cause of his hip/back pain…[to]….allow the development of an appropriate treatment plan and hopefully reduce his need for regular pain medication and increase his ability to secure employment”[88]; and (3) that he “…..be encouraged to continue working with formal support services to help him manage his mental health and to achieve long-term goals.”[89]
[87] A6, p 6.
[88] A6, p 6.
[89] A6, p 6.
The basis of my caution towards this report derives from several things that have also been identified by the Respondent.[90] The report has nothing to say about the Applicant’s current and/or future level of recidivist risk. There is no clinical verification of whatever observations appear in the report. As such, it would be unsafe to now adopt these observations as the findings of a clinician. The report is unsigned and neither its author or anyone else from ACSO was made available for cross-examination as was the case with Dr Morgan. I will accordingly limit the weight (if any) I allocate to this ACSO report.
[90] See R4, p 5-6, [14].
DISTILLATION OF THE ISSUES
For this Applicant to be eligible for the grant of the Protection visa, he must negotiate the following sections:
(a)Section 36(1A)(a): the Applicant must satisfy the following criteria:
(i)pursuant to sub-section (1B) that the Applicant has not been assessed by the Australian Security Intelligence Organisation as a direct or indirect risk to Australia’s security. The material contains no suggestion or assessment of the Applicant representing any such risk;
(ii)pursuant to sub-section (1C) that the Applicant is not a person whom the Respondent Minister considers, on reasonable grounds:
- pursuant to s 36(1C)(a) is a danger to Australia’s security. There is no contention before the Tribunal that the Applicant represents any such threat; or
- pursuant to s 36(1C)(b), having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
AND
(b)Section 36(1A)(b): for the grant of a Protection visa, the Applicant must satisfy one of the criteria in s 36(2). For present purposes, the material contains a Protection Visa Decision Assessment dated 5 March 2024 wherein a finding was made that the Applicant satisfies the criterion contained in s 36(2)(aa).[91] This Protection Visa Assessment dated 5 March 2024 also found adopted this Applicant was a refugee within the meaning of s 5H(1) of the Act.[92]
(c)Section 36(2C): provides that the Applicant is not taken to satisfy the complementary criterion assessment contained in s 36(2)(aa) if, inter alia, pursuant to s 36(2C)(b), the Minister considers on reasonable grounds that:
(i)the Applicant is a danger to Australia’s security; or
(ii)having been convicted by a final judgement of a particularly serious crime, the Applicant is a danger to the Australian community.
[91] R1, p 37.
[92] R1, p 36.
It will be noted that the two conditioning criteria in s 36(2C)(b) are substantially similar to those contained in s 36(1C). The only difference is that the second conditioning criterion in s 36(2C)(b)(ii) contains the words ‘…(including a crime that consists of the commission of a serious Australian offence or serious foreign offence)…’ There is no suggestion the Applicant has committed a serious foreign offence.
Therefore: (1) the same reply (and finding) I made for s 36(1C)(a) can be made for section 36(2C)(b)(i); and (2) the only residual issue for determination by this Tribunal is that contained in ss 36(1C)(b) and 36(2C)(b)(ii), namely, whether the Applicant, having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.
In Australia, it is well-settled that there are two separate sub-questions raised by s 36(1C)(b).[93] First, has the Applicant been convicted by a final judgment of a particularly serious crime? Second, if the first question is answered in the affirmative, does the Applicant represent a danger to the Australian community?
[93] See SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174 (‘SZOQQ’) [52] (Jagot and Barker JJ, Flick J agreeing at [28]) (set aside on different grounds: SZOQQ and Minister for Immigration and Border Protection (2013) 251 CLR 577); DOB18 and Minister for Home Affairs (2019) 269 FCR 636 (‘DOB18’) [49] (Logan J); WKCG and Minister for Immigration and Citizenship (2001) 110 ALD 434 (‘WKCG’) [29] (Deputy President Tamberlin QC).
The first question can be essentially interpreted as a jurisdictional fact. If there is one serious Australian offence, then the second question – whether the Applicant is a danger to the Australian community – arises for consideration.
I will consider each question in turn.
Sub-Issue 1: Has the Applicant been convicted by a final judgment of a serious crime?
As mentioned earlier, the Applicant has convictions for the commission of some 59 separate offences. The parties are of one mind that the Applicant’s offending history does include offences falling within the definition of “a particularly serious crime” as that term is defined in ss5 and 5M of the Act. One need no further than the convictions the Applicant received on 29 August 2018 and 6 November 2019 to quickly reach a state of satisfaction that (1) each of these five convictions involved offending against a law in force in Australia where the offence involved violence against the person; and (2) these offences were punishable by either imprisonment for a fixed term of not less than three years or imprisonment for a maximum term of not less than three years. I am therefore satisfied that these offences meet the definition of “serious Australian offence” appearing in s 5 of the Act.
Section 5M of the Act relevantly provides: “For the purposes of the application of this Act…..paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of: (a) a serious Australian offence……” It is therefore safe to find that the Applicant has been convicted by a final judgment of a particularly serious crime for the purposes of ss 36(1C)(b) and 36(2C)(b)(ii).
I will now turn to the second question contained in ss 36(1C)(b) and 36(2C)(b)(ii).
Sub-Issue 2: Whether the Applicant is a danger to the Australian community?
In SZOQQ and Minister for Immigration and Border Protection (2012) 200 FCR 174, the Full Court said 36(1C) of the Act does not facilitate a ‘balancing exercise’. I cannot, for example, weigh the consequences of refoulement for an applicant to their country of origin against whatever danger that applicant might pose to the Australian community:
‘[…] we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise.’[94]
[94]SZOQQ [49] (Jagot and Barker JJ), [27] (Flick J, agreeing).
For reasons that follow, I am of the view that an application of the four abovementioned considerations in WKCG to the instant facts necessarily results in a finding that this Applicant represents a danger to the Australian community. This finding will be principally based on an application of the four assessments stipulated in WKCG even though this list is not exhaustive. The concept of “danger” should, for present purposes, carry its ordinary meaning. Danger should be regarded as a function of (1) probability and (2) consequence.
In terms of the former, the Tribunal must determine whether there exists a sufficient risk, possibility or probability of harm. In terms of the latter, it is necessary to assess the consequential outcomes resulting from the danger, most usually comprising physical or psychological injury. When assessed together, the Federal Court has found these two concepts mean that the higher the probability of a person re-committing unlawful conduct, the less severe the consequences of that conduct might need to be for the purpose of assessing the extent to which that person now represents a danger to the Australian community.[95]
[95] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 at [106]-[107]; [109], [111], [114]. Cited with approval by the Fill Court in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104.
I will now turn to a discussion of the four assessments appearing in WKCG.
The seriousness and nature of the crimes committed, the length of the sentences imposed, and any mitigating or aggravating circumstances.
The seriousness of the Applicant’s offending can be readily understood by reference to the respective sentencing remarks referable to each episode of offending. Speaking broadly, the Applicant’s conduct has traversed the realms of very violent conduct including robbery while armed and in company, the wounding of victims and the application of personal violence. His unlawful conduct demonstrates a failure to recognise and respect the bounds of lawful authority within which members of the Australian community must conduct themselves. In this regard, the Applicant has directly challenged the authority of the state’s policing apparatus as can be seen from his conviction for assault or obstruct police officer. It can also be seen in his conviction for contravening a previously-made domestic violence order.
A more specific impression of the extent, nature and seriousness of the conduct can be readily taken from the actual sentencing remarks. Details of the Applicant’s 2016 offending are amply summarised in the sentencing remarks but what is important for present purposes is the learned sentencing Judge’s[96] description of the conduct which he labelled ‘very serious offences’:
‘The offences for which I have to deal with you occurred before you were sentenced
in the District Court on the 10th of April 2017, but, nevertheless, it is concerning
conduct. In respect of the robbery in company, the… complainant, Mr [redacted], actually knew you and your brother…. At about 3 pm on the 7th of December 2016, the complainant was walking on north road of Woodridge. He had his mobile phone in his hand, that is, he was talking as he walked. You confronted the complainant from behind and tried to take his phone; the complainant ran away. You and your brother chased him. A third co-offender drove a gold coloured car on the road and followed the complainant in the car. You were not able to catch up to the complainant, so you returned to the car. The car then chased after the complainant. It stopped in the middle of the road. You and your brother got out of the car and chased the complainant while the third co-offender drove past the complainant and stopped the car on the road ahead of them, in an effort to block him. The driver then exited the car and approached the complainant in an aggressive manner.
The complainant, to get away from you, and your co-offenders, ran into the front yard of a house on [name of street redacted] Street. The driver of the car, who is unknown, approached the complainant and punched him. The complainant put up his hands to shield his face. You and your brother arrived and, together with the driver of the car, surrounded the complainant. You grabbed the complainant’s leg, knocking him to the ground. The complainant threw his phone into the garden. You told him to – not to move, in more colourful terms than that. The complainant asked what you wanted; you demanded the phone. The complainant said he had dropped the phone and the complainant was yelling out for help. You asked if the complainant had called the police. The third offender pushed the complainant’s arms and held him on the ground, while another co-offender searched the garden, unsuccessfully, for the phone. You reached down and searched the complainant’s pockets, and you removed a packet of cigarettes, a cigarette lighter, his licence and $200.
A person in the house in whose yard all of this activity was taking place, came out to see what was going on. She told you to leave the property. You and your co-offenders ignored her. Another neighbour told you to leave at about 15 minutes later. You then walked back to the car. Complainant yelled out that he needed his licence. One of your group returned and said, “Lucky I didn’t come with a knife. I would have stabbed him.” One of your other co-offenders said, “We pounded him because he robbed our house.” Then you left. On the next day, on the 8th of December 2016, you rang the complainant and made threats to him about going to the police, saying that, “When I see you next time, wherever, I will kill you.”
So they are very serious offences. The community, particularly in the Logan district, and elsewhere in Queensland, is sick and tired of violent thugs exacting their revenge on others or trying to steal property in broad daylight in residential areas, and other areas of the state. It happens far too frequently in this district. In respect of the summary offences, this shows general serious offending over a protracted period of time.’[97]
[My emphasis]
[96] His Honour Justice Chowdhury DCJ.
[97] R3, p. 33, lines 21-47; p. 34, lines 1-19.
Details of the Applicant’s offending convicted in 2019 are also amply summarised in the learned sentencing Judge’s sentencing remarks.[98] Once again, the Applicant was involved with co-offenders in the administration of extreme physical violence upon a victim. In terms of the nature and seriousness of this conduct, it suffices to have regard to the sentencing remarks:
[98] His Honour Justice Chowdhury DCJ.
‘At about 5 am, on 4 January 2019, your group of offenders, four in total, arrived at
the apartment complex. You knew the access code to get into the apartment block,
and you all went up … in the house at the time… was … [name redacted], another
woman, [name redacted], and the complainant, [name redacted] who was only 17 years of age at the time. You opened the front door, … entered the house, began stomping around and swearing at [name redacted] and [name redacted]. The other group of your offenders waited outside the door.
The complainant woke up and asked who you were. You introduced yourselves.
There was a shaking of hands. You said, "I am not here for you" and then continued
yelling at [name redacted] and [name redacted].. The complainant told you to stop yelling. You then asked the complainant to come outside and talk for a second. The complainant went outside and saw the three other offenders standing at the front. You said something to the other three offenders, smiled, and you began pushing the
complainant. Your co-offenders then started throwing punches at the complainant.
The complainant tried to fight back, but he was kicked in the head, fell to the ground. And then all four of you began to disgracefully punch the complainant, kicking him and stomping on him while he was on the ground, and the complainant was yelling at you all to stop.
Eventually, your group stopped. The complainant said, "Allah is watching" and "This
is not Islamic." At that point, your co-offender [co-offender name redacted] produced a pocketknife and began stabbing the complainant. The complainant was still on the ground with his legs up in the air trying to stop the stabbing. [The co-offender - name redacted] tried to stab the complainant's stomach, but the complainant managed to use his hands to prevent that from occurring. The complainant suffered what are called defensive wounds to his hands and forearms trying to block [name of co-offender redacted] stabbing him in the stomach. He suffered two other stab wounds to his left leg and a wound to his left hand.
While that stabbing was going on, you and the other two offenders continued assaulting him while he was being stabbed which is a disgraceful thing to do. [The co-offender - name redacted] then picked up a glass bottle and smashed it on the complainant's head, causing him to lose consciousness. [Name redacted but not one of the offenders] and [name redacted but not one of the offenders] were trying to intervene in your fights, trying to push and grab your group off the complainant. Eventually, your group stopped and left. Emergency services were called and the ambulance service and the police service attended the scene.
When [the ambulance service and the police service] arrived, it was observed that the complainant was bleeding heavily from wounds to his leg, hands and head. He had lost about 100 to 200 millilitres of blood at the scene which is a significant amount. He had a deep laceration to his forehead on his hairline from where [the co-offender] broke the glass bottle on his head. He had bruising to his left ear, a laceration to his eyebrow, contusions and swelling about his eyes and nose, defensive wounds to both hands, as I have said, with a deep wound to his left palm, a stab wound to the back of his left thigh and a stab wound to the front of his left calf.
The ambulance officers managed to control the bleeding, gave him some painkillers and transported him to Princess Alexandra Hospital. He had to go exploratory surgery at the hospital. An injury of the ulna digital nerve to the left little finger was repaired. The wound on the back of his left thigh was about four centimetres wide. The wound on the front of his left shin was five centimetres wide and resulted in a laceration to the front of his tibialis muscle. The laceration to his scalp required a piece of glass to be removed and was stitched.
…
This is serious violence, and the community is sick and tired of it. It is just gratuitous violence for really no purpose. Whatever grudge you might have had against [the victim]… did not justify you going to the house and seriously assaulting the poor complainant who was only 17 and then continuing to assault him while [the co-offender] was stabbing him significantly with a knife. While I accept that you probably were not aware that [the co-offender] had a knife when you first went there, you clearly were aware of that when he produced it and you continued disgracefully to involve yourself in a serious assault when the complainant was on the ground.
He is very lucky to be alive. Courts for years have denounced the use of knives in violence and particularly in group attacks on defenceless complainants because people have been killed in that situation or have ended up in wheelchairs or been rendered vegetables because of significant brain trauma. So you are lucky, in a sense, that the complainant only suffered the significant injuries that he did.’[99]
[My emphasis]
[99] R3, p. 38, lines 32-47; p.39, lines 1-38; p.40, lines 39-47; and p. 41, lines 1-5.
Significant custodial terms have been imposed on this Applicant. Such sentences are viewed as the last resort in the hierarchy of sentencing options available to a sentencing court. They are also viewed as a reflection of the objective seriousness of that offending.[100] Earlier in these Reasons, I identified that of the offending I will take into account for present purposes, the Applicant has committed 59 offences across a span of offending running, in sentencing terms, from April 2017 to February 2020. His offending has attracted the imposition of 6.8 years of head custodial time. There can be little said against the proposition (and finding) that the nature of the sentences imposed on the Applicant are most obviously redolent of the very serious nature of the offences he has committed. Whether of not a sentencing court saw fit to elect to not impose maximum terms of imprisonment greater than the terms imposed on the Applicant is, with respect, a vacuous submission and should be rejected. The above-recounted facts of the unlawful conduct convicted in 2016 and then 2019 displace any weight possibly allocable to that submission.
[100] See PNLB and Minister for Immigration and Boarder Protection [2018] AATA 162 at [22].

In terms of aggravating factors, the Applicant is not able to displace the factual reality that he was actually on parole at the time he committed the offending for which he was sentenced in November 2019. As noted by the learned sentencing Judge, ‘It is a matter of considerable aggravation that you [the Applicant] were on that parole order at the time of these offences, and, in fact, you actually had not been on parole that long, a matter of months, before you committed these serious offences.’[101] [My emphasis].
[101] R3, p. 38, lines 18-21.
Another aggravating factor is the fact that the Applicant had been deliberately less than candid and truthful with investigating police. As observed by the learned sentencing Judge:
‘On 7 January 2019, police arrested you at your address. You took part in an interview, and you made some admissions; however, you clearly stated things which were not true and were not accepted by the Prosecution, namely, that you were all invited inside, that the complainant was being antagonistic towards the offenders and the two co-offenders got involved in the fight, no one had used a weapon and you were trying to break up the fight. You did, however, name the three other co-offenders involved. You were remanded in custody.
The next day, on 8 January 2019, to your credit, you took part in a further interview and told police you had not been completely honest in your first interview although you maintained you went to the house with innocent intentions and that it was the complainant who instigated the fight. That is not accepted by the Prosecution, and I will not sentence you on that basis. You did identify that after the fight, [name of co-offender redacted] made admissions to stabbing the complainant.’[102]
[My emphasis]
[102] R3, p. 40, lines 13-26.
A still further aggravating feature of the Applicant’s conduct must surely be the significant level of violence it involved together with the gratuitous nature by which it was committed. It is not at all a stretch of the evidence to suggest (and find) that the outcome – in physical terms – on one of the victims of either the 2016 and 2019 conduct could have been fatal. The learned sentencing Judge was in no doubt about that.[103] A yet further aggravating feature is to be found in the impact the Applicant’s conduct has had on the cause of refugees in Australia. The learned sentencing Judge, and to my mind, with respect, correctly said this to the Applicant at the 2019 sentencing hearing:
‘You and your family got to come to Australia as refugees. There are millions of refugees around this world who will never get to a safe stable country like Australia, and this is what you show for the hospitality of the Australian people by committing such serious violent offences. The question of refugees and immigration is a hot potato in political discourse in Australia at the moment, and this sort of conduct by you does nothing to advance the cause of refugees in this country.’[104] [My emphasis].
[103] For the 2016 conduct, see R3, p. 34, lines 14-17; for the 2019 conduct, see R3, p. 41, lines 1-5.
[104] R3, p. 41, lines 18-24.
There may be said to be mitigating factors referable to this Applicant. In the sentencing remarks, they were variously referred to as (1) the Applicant having been a ‘…model prisoner…’[105]; (2) that the Applicant showed an ‘…engagement with the Salvation Army.’[106]; (3) that the Applicant had ‘… a good work history.’[107]; (4) that the Applicant had ‘…two children in Brisbane.’[108]; and (5) that the Applicant had the ‘…support of your family who are here today.’[109] In my view, the aggravating factors significantly outweigh any mitigating factors referable to the nature and seriousness of this Applicant’s unlawful conduct in this country.
[105] R3, 41, line 16.
[106] R3, 41, line 16
[107] R3, 41, line 26
[108] R3, 41, line 28.
[109] R3, 41, lines 28-29.
I am satisfied that each of (1) the nature and seriousness of the Applicant’s unlawful conduct; (2) the extent of sentences imposed on him; and (3) the primacy of aggravating factors over mitigating factors apparent from his unlawful conduct, now render him a danger to the Australian community.
The criminal record in totality
I have earlier recounted the Applicant’s criminal history. He first came here in November 2012 and, with specific reference to the offences I will actually take into account for present purposes, he found himself before the Courts for sentencing less than five years after he arrived here. During the period of April 2017 until February 2020, the Courts dealt with the Applicant for the commission of 59 offences of which he was convicted at eight separate sentencing episodes. He has offended frequently and very seriously.
It has been offending that has (1) failed to respect the lawful authority represented by the police and duly made written orders compelling his to do or refrain from doing something; (2) failed to respect the personal rights of others by his participation in very violent conduct that could easily have resulted in a fatal outcome/s; and (3) clearly demonstrated that he has experienced little or nothing in the form of a deterrent effect from the sentencing regime that sentencing courts imposed upon him. It is an appalling criminal history and, on any objectively reasonable view, should render any non-citizen who committed it as unworthy for the receipt of any visa to remain here. The extent of the seriousness of the Applicant’s offending is not abating with time. Even a cursory superimposition of, for example, his offending convicted in 2017 compared to that convicted in 2018 and 2019, demonstrates an undeniable trend of increasing seriousness.
The Federal Court has identified both quantitative and qualitative dimensions to the danger represented by an Applicant in this type of proceeding. Although I will have more to say about the state of the Applicant’s rehabilitation later in these Reasons, it suffices to now observe that the quantitative dimension or spectrum of the danger represented by this Applicant is to be found in the relatively incomplete state of his rehabilitation which gives rise to a plausible possibility of harm in the event he were to re-offend. The qualitative spectrum of the danger he now presents derives from the convincing prospect that such further offending is very likely to result in physical or psychological harm to a victim.[110]
[110] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 at [106]-[107]; [109], [111], [114]. Cited with approval by the Full Court in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104.
I am therefore satisfied that when viewed as a whole, the Applicant’s criminal history strongly supports a finding that he remains a danger to the community.
The risk of re-offending and recidivism and the likelihood of relapsing into crime
The Applicant’s evidence about a level of participation with the rehabilitative process should be taken at face value. He has obviously attended and completed courses and he has at least some measure of historical and current connection to clinicians. While his evidence left me uncertain about whether he involved himself in rehabilitation for the purpose of impressing Tribunals like this one, or for the purpose of recognising there have been predispositive issues behind his offending, I will cautiously and marginally default to the latter view. He had repeatedly expressed remorse and regret for his offending and, while I suspect this concession derives more from an understanding about just how much trouble his past conduct has now put him in, I will nevertheless accept that he is remorseful for this reason if for no other.
His evidence in chief was typically self-serving. There was little to convince me that he is anywhere near assuming any level of parental responsibility for one of his two children in foster care. He seems a very long distance away from implementing or involving himself in any formal process to assume any such parenting rights for the subject child. He spoke of the support that he sought from his family and that they sought from him. He contextualised this family support element by reference to an illness afflicting his younger brother and the necessity of looking after his mother who is becoming more infirm as she ages. Each of these factors would surely have been present at the time the Applicant committed (at least) his offences that were punished in 2019. There is little or no evidence to support a contention that these family-based factors will be anymore supportive of a low recidivist risk than has been the case in the past.
The Applicant’s principle challenge, and principle determinant in terms of his current and future recidivist risk, is, of course, to be found in his capacity to resist a regression back into either or both illicit substance and/or alcohol abuse. He claims to be completely drug-free and alcohol free since his return to the community via his NZYQ release in March 2024. There were concerning contradictions in his evidence about substance abuse. He told the instant hearing that he last used illicit drugs in December 2016. Yet he told Dr Morgan that he habitually used cannabis between 2015 and 2017. Further, Dr Morgan’s report clearly records the Applicant’s self-reporting of irregular use of benzodiazepine medication between 2016 and 2018. Further, the Applicant told Dr Morgan he was using Suboxone during his time in criminal custody.
Perhaps the most concerning disparity in the Applicant’s evidence was to be found in his claimed non-usage of heroin in the past. This was also reflected in an IHMS record dated 17 March 2023 in which the Applicant told the relevant clinician that he first tried heroin when aged 21 and that he was smoking and injecting it daily until the age of 23. This record also records the Applicant telling the clinician that he started using suboxone from aged 23 and that he has been smoking and injecting it ever since. The Applicant sought to re-orientate his evidence about heroin usage by saying either (1) he might have said he had used heroin as a means of getting on a program that could provide him with the drug Buvidal to act as a painkiller for pain he was experiencing on his hips; or (2) that he was ‘probably sure’ that he had never used heroin at any stage of his life. To the extent of any inconsistency between the Applicant’s evidence and that appearing in the IHMS record and as recorded by Dr Morgan, I will prefer the clinical record of both Dr Morgan and IHMS to the evidence of the Applicant.
As mentioned earlier, Dr Steve Morgan is eminently qualified and vastly experienced. He spent ample time with the Applicant across 5, 6, 9 and 10 March 2025. As an initial finding, I should say there is absolutely nothing in the contention put by the Applicant that any inconsistency between his evidence and what is recorded in Dr Morgan’s report was somehow due to an unclear or unsatisfactory communication connection due to tropical cyclone Alfred which impacted South-East Queensland at that time. Dr Morgan made it clear that to whatever extent the cyclone impacted his consultation with the Applicant, he was able to remediate that issue by a subsequent consultation session.
Using the VRAG methodology, Dr Morgan opined that this Applicant produced a test score that indicated a medium risk of violent re-offending. Applying the HCR-20-V3 testing methodology, Dr Morgan opined that the Applicant gave an overall impression of a low likelihood of violent re-offending but that this carried a moderate-high ‘case prioritisation’, meaning that this low likelihood was contingent upon the Applicant maintaining a moderate-high engagement with rehabilitative intervention. To quote Dr Morgan directly, it will be recalled he said the Applicant’s ‘…low risk will likely remain for as long as this scaffolding of support remains intact and he complies with treatment’.
In terms of mental health symptomatology, Dr Morgan: (1) opined that the Applicant had stabilised symptoms of PTSD; (2) could not diagnostically confirm the Applicant having met the criteria for Major Depressive Disorder; and (3) opined that the Applicant does not presently meet the diagnostic criteria for polysubstance dependency. In terms of an ultimate finding about recidivist risk, Dr Morgan was clear that utilising the VRAG instrument, the Applicant represents a medium risk of re-offending. Critically, Dr Morgan thought the Applicant ‘… is by virtue of his personal history and history of offending, unlikely to be able to greatly ameliorate or lower this risk’. As mentioned earlier, any lowering of this medium risk via the HCR-20-V3 instrument is predicated on the Applicant’s (1) persistence with treatment; and (2) the continued presence of the scaffolding of support around him. Only on this basis could there possibly be a consolidation of the Applicant’s risk to one of ‘low’.
Dr Morgan gave his usual erudite and learned oral evidence to the instant hearing. In his evidence-in-chief, he was taken to [21.2] of his report and, specifically, his record of the Applicant telling him ‘He denied any use of heroin (but stated that he claimed to have used it ‘to get on the program’ – this in turn to manage chronic pain’. To the extent of any conflict between what appears in Dr Morgan’s report and the Applicant’s denial that he did not say anything like this to Dr Morgan, I will accept Dr Morgan’s evidence without equivocation. He told the hearing that the Applicant’s oral evidence to this hearing on this point was wrong. I accept what Dr Morgan said.
During cross-examination, Dr Morgan explained what he meant by ‘structured supports’ as one of the two contingencies behind any finding or presumption that his risk of violent recidivism will trend from medium to low. Those supports comprised (1) good support from a general practitioner / local medical officer; (2) continued adherence to taking psychiatric medication prescribed to him; (3) maintaining a pattern of counselling such as with QPASST; (4) treatment of any symptoms of PTSD; (5) a continued avoidance of alcohol and drug use; and (6) remaining cautious in his social engagements with anti-social peer groups or gangs and illicit drug users.
I am of the view that this Applicant more reliably represents a medium recidivist risk as opposed to a low-medium or low risk. The contingent factors speaking to a moderation of a medium risk downwards towards low-medium or just low are elements that have not worked to prevent him re-offending in the past. The scaffolding of supports to which Dr Morgan refers is multi-faceted and, while the Applicant may demonstrate some measure of engagement with rehabilitative intervention, I am not satisfied that the Applicant’s engagement has been at a level to now definitively convince me that he represents anything other than a medium recidivist risk. Clearly, whatever level of family support was around him in the past did nothing to lower his recidivist risk.
His evidence left me with the firm impression that his engagement with rehabilitative intervention was on an ‘as and when’ basis as opposed to his being under the clinical management and control of a suitably qualified practitioner who could manage his rehabilitation. The rehabilitative evidence comprised a collection of statements from counsellors and/or clinicians who have dealt with the Applicant at one stage or another. It is, to use a colloquial phrase, a ‘patchwork quilt’ of evidence as opposed to evidence of a wholistic nature which clinically demonstrates that rehabilitative intervention can reliably take the Applicant from ‘here to there’ in terms of demonstrated rehabilitation.
Thus, I arrive at a finding that the Applicant’s rehabilitation remains in its formative stages and can be interpreted as a work in progress. The evidence does not rise to the point of convincing me that his recidivist risk, at least for present purposes, can safely lowered from a medium risk.
Any prospects of rehabilitation
As mentioned earlier, there is no denying the Applicant has accessed counselling and other rehabilitative services while in immigration detention. There are the reports of Ms Bonnie Turner (ACSO) which speaks favourably in terms of the Applicant’s regular pattern of rehabilitative engagements and what she observed to be his strong commitment to recovery. Similarly, the report of the QPASST counsellor refers to continued efforts by that organisation to engage with the Applicant ‘…with the aim of assessing his current support needs and identifying appropriate therapeutic goals’. [111] This report notes that ‘Continued counselling should focus on managing these symptoms and supporting the gradual rebuilding of his self-confidence’.[112] Dr Morgan said the Applicant’s ‘…risk may be reduced dynamically to a low categorisation only over time in the community’.[113]
[111] A5, p. 5.
[112] A5, p. 5
[113] A4, p. 32.
None of the clinical / counselling evidence points to a finding that the Applicant is either incapable of rehabilitation or that he has poor prospects of rehabilitation. To my mind, the totality of this evidence points to a person who is capable of rehabilitation, and somewhat amenable to rehabilitation, but who is at the beginning, or shortly after the beginning of that rehabilitative journey. As I have mentioned, this cannot safely facilitate – at least for present purposes – a lowering of his risk from that of a medium level.
A further item raised by the evidence
During the evidence of Dr Morgan, he raised a factor which I thought was, by virtue of the timing of High Court’s NZYQ decision, a somewhat novel factor in this application. In his report, Dr Morgan identified a further factor which he thought could possibly consolidate the Applicant’s recidivist risk away from medium and towards low. He thought this factor may be found in the absence of offending since the Applicant’s NZYQ release in March 2024 together with the complete absence of offending from 2019. It will be recalled Dr Morgan said “……it is also salient to note his risk being on a trajectory of reduction from 2019’.[114]
[114] A4, p 32.
I offered the parties the opportunity of lodging written submissions on this issue following the substantive hearing of this application. That material now forms part of the evidence before the Tribunal.[115] The salient question, for present purposes, is this: does this Applicant’s time in the community as an NZYQ releasee from March 2024 until now adequately address a contention that his rehabilitation and recidivist risk have both been tested in the broader community such as to now speak favourably to his current level of recidivist risk?
[115] See: A7; R5.
I am not of the view that the Applicant’s time in the community as an NZYQ releasee on a Class WR Subclass 070 Bridging Visa R satisfactorily answers this question. This is so for the following reasons:
·while Dr Morgan might talk about a ‘trajectory of reduction’ in the Applicant’s offending since 2019, it must be borne in mind that was removed from the community and in the closed confines of either prison or immigration detention for the best part of the five-year period between 2019 and 2024;
·the Bridging Visa issued to him contemporaneous with his NZYQ release contained restrictive conditions[116] requiring him to, for example, abide by a curfew, wear a monitoring device, report daily as directed, not acquire or use weapons and to not become involved in violence threatening harm to the Australian community;
·if the Applicant succeeds in the instant proceeding, he will be granted a Protection Visa that will not be subject to protective impact of the conditions currently attached to the Class WR Subclass 070 Bridging Visa R;
·much, if not all, of the clinical intervention/rehabilitative courses received by the Applicant while in immigration detention were provided to him as a detainee of the Commonwealth Government. Since his release, most, if not all, of this support was facilitated by the Respondent Department’s Enhanced Status Resolution Support Services (SRSS) program which ran for the 12 months spanning the Applicant’s NZYQ release in March 2024 until the end of March 2025. The Applicant is no longer on the SRSS program. There is thus little or no governmental assistance or support for rehabilitative purposes for this Applicant going forward apart from that which he will most probably have to source for himself. Consequently, it will likely be more difficult for the Applicant establish and sustain the scaffolding of support and treatment on which Dr Morgan predicated the possibility of any lowering of recidivist risk downwards from medium.
[116] Note to Reader: go to A2, pp, 128 – 130 which comprises the Respondent Department’s letter to the Applicant dated 5 March 2024. This is the letter confirming the grant of the Bridging Visa R to the Applicant and to which is attached Attachment 2, which contains the stipulated ‘VISA CONDITIONS’.

I am consequently of the view that the Applicant’s time in the community as an NZYQ releasee does not now safely or reliably inform any finding about his current and future recidivist risk.
CONLCUSION
I have considered the totality of both the written material as well as the oral submissions forming the record of these proceedings. I have sought to apply the relevant considerations outlined in WKCG to this material. I arrive at a finding that there remains at least a medium level of risk of this Applicant seriously (and even very seriously) and violently re-offending if returned to the Australian community. I am therefore of the view (and I find) that he remains a danger to the Australian community.
The Applicant’s rehabilitation is at its relatively formative stages and remains a work in progress. While it would be unfair to say he is a person incapable of, or unsuited to, rehabilitation, the fact remains that his rehabilitation remains incomplete and contingent on uncertain factors such as a continued engagement with the rehabilitative progress and the sustained maintenance of necessary rehabilitative reports referred to by Dr Morgan. The Australian community has experienced the impact of this Applicant’s offending sentenced between 2017 and 2020 and should not be compelled to further endure (and experience) the significantly serious outcomes resulting from his future unlawful conduct in this country. The visa he seeks will be denied to him.
DECISION
The Tribunal affirms the decision under review dated 5 March 2024 and finds that:
1)having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
2)the Applicant is not eligible for a Protection visa pursuant to s 36(1A) of the Act.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...................................[SGD]................................
Associate
Dated: 16 July 2025

Date(s) of hearing: 8 and 9 May, 2025

Counsel for the Applicant:
C.J Fitzgerald Esq.,

Solicitors for the Applicant: Zarifi Lawyers

Solicitor for the Respondent:
Ms Hannah Anderson (Lawyer)

Clayton Utz Lawyers

ANNEXURE A
EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

R1

T-Documents

R

13/06/2025

R2

Respondent’s Statement of Facts, Issues and Contentions

R

15/11/2024

R3

Respondent’s Bundle of Evidence

R

18/10/2024

R4

Respondent’s Supplementary Submission

R

22/04/2025

R5

Respondent’s NZYQ Submission

R

16/05/2025

A1

Applicant’s Supplementary Bundle

A

23/09/2024

A2

Applicant's Bundle of Material

A

31/07/2024

A3

Applicant’s Revised Statement of Facts, Issues and Contentions

A

23/09/2024

A4

Dr Morgan Report

A

10/03/2025

A5

Ajla Sisic-Bijedic Report

A

07/05/2025

A6

Applicant’s NZYQ Submission

A

23/05/2025

Date(s) of hearing:	8 and 9 May, 2025
Counsel for the Applicant:	C.J Fitzgerald Esq.,
Solicitors for the Applicant:	Zarifi Lawyers
Solicitor for the Respondent:	Ms Hannah Anderson (Lawyer) Clayton Utz Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT
R1	T-Documents	R	13/06/2025
R2	Respondent’s Statement of Facts, Issues and Contentions	R	15/11/2024
R3	Respondent’s Bundle of Evidence	R	18/10/2024
R4	Respondent’s Supplementary Submission	R	22/04/2025
R5	Respondent’s NZYQ Submission	R	16/05/2025
A1	Applicant’s Supplementary Bundle	A	23/09/2024
A2	Applicant's Bundle of Material	A	31/07/2024
A3	Applicant’s Revised Statement of Facts, Issues and Contentions	A	23/09/2024
A4	Dr Morgan Report	A	10/03/2025
A5	Ajla Sisic-Bijedic Report	A	07/05/2025
A6	Applicant’s NZYQ Submission	A	23/05/2025