WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 3728

WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728 (13 November 2023)
Division:General Division
File Number(s):2023/2959
Re:WKBF
APPLICANT

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRSAnd
RESPONDENT

DECISION
Tribunal:The Hon Justice Kyrou, President
Date:13 November 2023
Place:Melbourne

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with a direction that the applicant satisfies the criterion in s 36(1C)(b) of the Migration Act 1958 and that he is not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii).
.....................................[SGD].....................
Justice Kyrou
Catchwords

MIGRATION – decision refusing to grant a class XA, subclass 866 protection visa under s 65 Migration Act 1958 – whether applicant, having been convicted of a particularly serious crime, is a danger to Australian community – applicant diagnosed with paranoid schizophrenia characterised by grandiose and persecutory delusions – concession that applicant would be a danger to Australian community if released from immigration detention without treatment and supports – psychiatric evidence established that applicant will very likely be subject to a compulsory treatment order for significant period of time – very likely that applicant will not be released into community until risk to Australian community is assessed at an acceptably low level – applicant not a danger to Australian community – decision set aside and remitted.

MIGRATION – state of satisfaction required to determine whether applicant is a danger to Australian community – significant consequences to applicant as a result of adverse finding – rigour required in assessment whether a person is a danger – principles in Briginshaw v Briginshaw (1938) 60 CLR 336 capable of providing assistance.

MIGRATION – definition of ‘serious Australian offence’ in s 5(1) Migration Act 1958 – whether phrase ‘offence … involves violence against a person’ requires that elements of offence include violence against a person or that actual offending involves violence against a person – relevant legal principles.

MIGRATION – whether an offence involving threat of violence constitutes offence which ‘involves violence against a person’ for purposes of definition of ‘serious Australian offence’ in s 5(1) Migration Act 1958 – phrase ‘violence against a person’ requires physical application of force to victim’s body.

MIGRATION – concept of ‘danger’ in phrase ‘danger to the Australian community’ – principles in SLGS v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2023] FCAFC 104 summarised.

MIGRATION – whether s 36(1C)(b) Migration Act 1958 requires a causal connection between particularly serious crime and danger to Australian community – WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434; [2009] AATA 512, WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060, DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 and SLGS v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2023] FCAFC 104, discussed.

MIGRATION – factors relevant to assessment of ‘danger to the Australian community’ – factors discussed in WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434; [2009] AATA 512 explained.

Legislation
Crimes Act 1958 (Vic)
Guardianship and Administration Act 2019 (Vic)
Mental Health and Wellbeing Act 2022 (Vic)
Migration Act 1958 (Cth)
Cases

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84

SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104

WKCG v Minister for Immigration and Citizenship (2009) 110 ALD 434; [2009] AATA 512

WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060

Secondary Materials

Administrative Appeals Tribunal, A Guide to Refugee Law in Australia (Commonwealth of Australia, 2023)

Table of Contents
Decision
REASONS FOR DECISION
INTRODUCTION AND SUMMARY
RELEVANT PROVISIONS OF THE MIGRATION ACT 1958
RELEVANT PRINCIPLES
General observations on the interpretation of s 36(1C) of the Act
Evidentiary issues
Definition of ‘serious Australian offence’: ‘offence … involves violence against a person’
Whether ‘violence against a person’ must be an element of an offence
Whether a threat of violence constitutes ‘violence against a person’

Danger to the Australian community
Concept of ‘danger’
Relationship between index offence and assessment of danger to Australian community
Factors relevant to assessment of ‘danger to the Australian community’

NON-CONTENTIOUS FACTS
Applicant’s early years in Ethiopia; overview of life in Australia
Applicant’s criminal history
Intentionally causing injury; assault with weapon; other offences (2004; [137(3), (4)])
Aggravated burglary; recklessly causing serious injury (2008; [‎137(10),(11)])
Burglary; trafficking cannabis; unlawful assault; other offences (2012; [‎137(14),(15), (16)])
Contravening personal safety intervention order; breach bail ([2018; ‎137(19),(20)])
Trespass; resist police; common law assault; breach bail ([2018; ‎137(22), (23), (24)])

PRIOR TRIBUNAL AND COURT DECISIONS RELATING TO APPLICANT
FINDINGS OF THE DELEGATE
DECISION ON ‘PARTICULARLY SERIOUS CRIME’
‘DANGER TO THE AUSTRALIAN COMMUNITY’ – RELEVANT LEGISLATION
‘DANGER TO THE AUSTRALIAN COMMUNITY’ – EVIDENCE
Evidence and witnesses other than Dr Zimmerman
Evidence of Dr Zimmerman
Applicant’s mental illness; danger posed without proper treatment
Recommended treatment plan; danger posed if treatment plan followed
Causal link between applicant’s offending and mental illness

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – PARTIES’ SUBMISSIONS
‘DANGER TO THE AUSTRALIAN COMMUNITY’ – DECISION
CONCLUSION
DECISION
REASONS FOR DECISION
INTRODUCTION AND SUMMARY

The applicant has applied for review of a decision dated 5 January 2023 made by a delegate of the respondent Minister (‘Delegate’) to refuse to grant him a class XA, subclass 866 protection visa under s 65 of the Migration Act 1958 (‘Act’) on the basis that he did not satisfy the criterion in s 36(1C)(b) (‘Delegate’s decision’). As appears from [‎6] below, the criterion concerns whether the applicant, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. The Delegate also decided that the applicant was ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii). That section raises the same issues as s 36(1C)(b).[1]
[1] As ss 36(1C)(b) and 36(2C)(b)(ii) have similar wording, I will focus on s 36(1C)(b). My observations on s 36(1C)(b) also apply to s 36(2C)(b)(ii).
The applicant was born in Ethiopia. He arrived in Australia on an AY – 104 (Preferential Family) visa when he was 17 years of age. Between 2002 and 2018, he was convicted of various offences. His visa was cancelled on 18 September 2018, pursuant to s 501(3A) of the Act. Since at least November 2018, he has been in custody or in immigration detention.
The applicant suffers from drug addiction and paranoid schizophrenia. It is not in dispute that if he is returned to Ethiopia, he would suffer significant harm, including possible physical restraint, due to his mental illness. In 2020, this Tribunal found that Australia owes the applicant protection obligations.[2]
[2] See [‎165] to [‎168] below.
This application involves two central issues. The first issue is whether the applicant has been convicted by final judgment of a particularly serious crime. Critical to the determination of this issue is the nature of the offences of which the applicant has been convicted. The second issue is whether the applicant is a danger to the Australian community. Critical to the determination of this issue is the expert psychiatric evidence before the Tribunal regarding the extent to which the risk of the applicant reoffending can be reduced sufficiently by the options available to treat his drug addiction and mental illness.
For the reasons that follow, for the purposes of s 36(1C)(b) and 36(2C)(b)(ii) of the Act, I am satisfied on reasonable grounds that the applicant is not a person who, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. Accordingly, the Delegate’s decision will be set aside and the matter will be remitted to the respondent for reconsideration with a direction that the applicant satisfies the criterion in s 36(1C)(b) and that he is not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii).

RELEVANT PROVISIONS OF THE MIGRATION ACT 1958

Section 36 of the Act relevantly provides as follows:
36Protection visas—criteria provided for by this Act
(1A)An applicant for a protection visa must satisfy:
(a)    both of the criteria in subsections (1B) and (1C); and
(b)    at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. …
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a)    is a danger to Australia’s security; or
(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. …
(2)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 … 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; or
…
…
Ineligibility for grant of a protection visa
(2C)A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b)    the Minister considers, on reasonable grounds, that:
(i)the non-citizen is a danger to Australia’s security; or
(ii)the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Section 5M of the Act provides as follows:
5M Particularly serious crime
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.
A ‘serious Australian offence’ is defined by s 5(1) of the Act to mean:
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
…     …; and
(b)the offence is punishable by:
…
(iii)   imprisonment for a maximum term of not less than 3 years.
The definition of ‘serious foreign offence’ in s 5(1) of the Act also includes an offence which ‘involves violence against a person’, ‘is a serious drug offence’ or which ‘involves serious damage to property’.
The Act does not define ‘violence against a person’, ‘serious drug offence’ or ‘serious damage to property’.
For present purposes, in order for the applicant to be granted a class XA, subclass 866 protection visa, the Delegate had to be satisfied that:
(a)Australia had protection obligations in respect of the applicant because the Delegate had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm;
(b)the applicant was not a person who had been assessed as a risk to security by the Australian Security Intelligence Organisation; and
(c)the applicant was not a person who the Delegate considered on reasonable grounds:
(i)is a danger to Australia’s security; or
(ii)having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community.
The Delegate was satisfied of (a), (b) and (c)(i) but not (c)(ii).[3]
[3] The Delegate was also satisfied that the applicant was not eligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii) of the Act.
The only issues in contention before the Tribunal arising under the Act are whether the applicant has been convicted by final judgment of a particularly serious crime and whether, having been so convicted, he is a danger to the Australian community.

RELEVANT PRINCIPLES
General observations on the interpretation of s 36(1C) of the Act

Section 36(1C) was inserted in the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), by way of codification of Australia’s international non-refoulement obligations under art 33(2) of the Convention Relating to the Status of Refugees (‘Convention’).[4] Article 33 provides as follows:
33Prohibition of expulsion or return (‘refoulement’)
(1)No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(2)The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
[4] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, 180 [1236] ('Explanatory Memorandum to the 2014 Bill'); DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84, [135] (‘DMQ20’).
The question in s 36(1C)(b) of the Act about a person constituting a danger to the Australian community arises for consideration in the context of whether a person to whom Australia owes protection obligations should, by way of exception to those obligations, be deprived of a protection visa. In my opinion, this is a contextual matter that is relevant to the construction of the section.

Evidentiary issues

The Tribunal is not bound by the rules of evidence,[5] including the principles in Briginshaw v Briginshaw[6] and provisions in the uniform Evidence Acts which reflect them.[7] Further, a party to proceedings before the Tribunal has no onus of proof, let alone an onus to establish facts to any particular or pre-determined standard.[8] However, as the Tribunal can determine its own procedure and the manner in which it may inform itself,[9] it may, in appropriate cases, decide to either apply or inform itself by reference to the principles in Briginshaw.[10]
[5]           Administrative Appeals Tribunal Act 1975, s 33(1)(c) (‘AAT Act’).
[6] (1938) 60 CLR 336 (‘Briginshaw’). See Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555, 581 [100] (‘Sullivan’); Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12, [55]–[56], [59], [91], [94].
[7]           See, eg, Evidence Act 1995, s 140(2)(c).
[8]           Sullivan (2014) 226 FCR 555, 585 [115], 587 [121].
[9] AAT Act, s 33(1)(a) and (c).
[10]          Sullivan (2014) 226 FCR 555, 585 [116].
In my opinion, the principles in Briginshaw are capable of providing assistance in determining the issues raised by s 36(1C)(b).[11] The serious consequences for the individual of a finding that they are a danger to the Australian community mean that some rigour must be applied in assessing the evidence relevant to the determination of those issues to ensure that such a finding is not made based upon the simplistic notion that individuals who have a long criminal record are necessarily a danger to the Australian community. A careful, evidence-based approach is required in each case rather than a generalised approach which is predisposed to a finding that persons who persistently commit crimes – and who can be described as not being law-abiding – should not be permitted to remain in Australia. Section 36(1C)(b) does not involve such generalised or abstract notions. Nor is it concerned with whether a person is of bad character. Rather, it refers to particular types of offences and a particular type of consequence. Accordingly, it requires close attention to the nature of the offences that an offender has committed – and all other relevant information – and a careful assessment of whether the offender constitutes a danger to the Australian community.
[11] Sullivan (2014) 226 FCR 555, 580 [97], 586–7 [120].
Consistent with the analysis at [‎17] above, care must be taken in deciding what reliance is placed upon documents which set out alleged crimes or acts of antisocial behaviour by a person which are not reflected in court records. In the present case, due to the unavailability of the sentencing remarks of the County Court judge who sentenced the applicant for certain offences in 2018, the respondent relied upon the informant’s statement as the best evidence of the circumstances of the offending. Senior counsel for the applicant accepted that the Tribunal could place some reliance on the statement. She was correct in doing so.[12] However, she was also correct in urging that care be taken in drawing any inferences from the document as to the findings of the County Court in circumstances where the offence of common law assault could have been constituted by either threatening behaviour or physical violence against the victim.[13]
[12] See Lewer v Minister for Home Affairs [2023] FCAFC 121, [9], [21]–[22], [53], [59], [74].
[13] See [‎23] below.

Definition of ‘serious Australian offence’: ‘offence … involves violence against a person’

Section 36(1C)(b) of the Act refers to conviction by a final judgment ‘of a particularly serious crime’, rather than ‘a serious crime’. The inclusion of the word ‘particularly’ provides relevant statutory context for interpreting the definition of ‘serious Australian offence’ in s 5(1).[14]
[14] The word ‘included’ in s 5M of the Act makes it clear that the undefined term ‘particularly serious crime’ in s 36(1C)(b) is not confined to a ‘serious Australian offence’ or a ‘serious foreign offence’ as defined in s 5(1). See AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564, [41], [43], [45] (‘AFF20’).
It will be recalled from [‎8] above that the definition of ‘serious Australian offence’ in s 5(1) of the Act refers to an offence which ‘involves violence against a person’, ‘is a serious drug offence’ or ‘involves serious damage to property’. In the present case, the respondent relies only upon offences which are said to involve violence against a person. Accordingly, it is not necessary for me to discuss the meaning of the phrases ‘serious drug offence’ and ‘offence … involves serious damage to property’.

The offences for which the applicant has been convicted are summarised at [‎137] below. The respondent relied only upon the conviction for one charge of recklessly causing serious injury and the convictions for three charges of common law assault for the purposes of the definition of ‘serious Australian offence’ in s 5(1) of the Act. The offence of recklessly causing serious injury was committed in 2005 and the applicant was convicted and sentenced in 2008.[15] The three offences of common law assault were committed in 2018 and the applicant was convicted and sentenced in the same year.[16] The circumstances of the four offences are discussed later in these reasons. Presently, it suffices to set out the elements of the offences and the maximum penalties applicable to them at the time they were committed.[17]
[15]          See [‎137(‎11)] and [‎145] to [‎151] below.
[16]          See [‎137(‎24)] and [‎158] to [‎163] below.
[17]          As to why that is the relevant time, see [‎42] below.
Under s 17 of the Crimes Act 1958 (Vic), as in force at the time of the offending in 2005, the elements of the offence of recklessly causing serious injury were recklessly causing serious injury to another person without lawful excuse. The maximum penalty was then 15 years’ imprisonment.
The elements of common law assault are that the offender intentionally or recklessly, and without lawful justification or excuse, either applied force to a victim’s body or committed an act which caused the victim to apprehend the immediate application of force to their body.[18] At the time the offences were committed in 2018, the maximum penalty for common law assault was 5 years’ imprisonment.[19]
[18] Judicial College of Victoria, Criminal Charge Book (online at 14 October 2023) 7.4.8.
[19] Crimes Act 1958 (Vic), s 320.
Senior counsel for the applicant conceded that the applicant’s conviction for the offence of recklessly causing serious injury involved violence against a person and therefore constituted a ‘serious Australian offence’ within para (a)(i) of the definition of that term in s 5(1) of the Act. For the reasons set out at [‎39] below, she was correct to do so.
Senior counsel for the applicant did not concede that the applicant’s three convictions for the offence of common law assault involved violence against a person. That was said to be because that offence could be committed either by the application of actual force against the victim’s body or by conduct short of physical contact with the victim which put the victim in fear of the use of force against their body.
In the light of the submission on behalf of the applicant concerning the offence of common law assault, two issues arise in relation to the phrase ‘offence … involves violence against a person’ in para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act. The first issue is whether ‘violence against a person’ must be an element of the offence or whether it is sufficient that the commission of the offence involved such violence, even though this was not an element of the offence. The second issue is whether ‘violence’ includes a threat of violence.
As it was common ground between the parties that the applicant had committed at least one offence that fell within the definition of ‘serious Australian offence’ – namely, the offence of recklessly causing serious injury – it is not strictly necessary for me to decide either of the above issues. However, as the parties made extensive submissions in relation to them, I will discuss them.

Whether ‘violence against a person’ must be an element of an offence

If the correct interpretation of the phrase ‘violence against a person’ is that violence must be an element of an offence, whether an offence involves such violence will depend upon how the offence is defined at common law or by statute. If the correct interpretation is that violence need not be an element of the offence, whether an offence involves violence against a person will depend upon an examination of the acts of the offender in the course of committing the offence. The question of which interpretation is correct was left open by Bromberg J in AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[20]
[20] [2022] FCA 1564, [24]–[30].
Where the elements of an offence include violence against a person, the acts committed by the offender must necessarily include such violence, otherwise the offence could not be proven. Where the elements of an offence do not include such violence, the offence could be proven without the need to establish such violence.
Senior counsel for the applicant contended that whether an offence involves violence against a person requires an examination of both the elements of the offence and the circumstances of the offending rather than only the elements of the offence. This was said to be particularly important where the elements of the offence include alternatives, such as the use of actual force against the victim or conduct which places the victim in fear of force being applied against them. According to counsel, in such a case, if the actual offending involved conduct falling short of the application of actual force, the offence would not satisfy para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act.
Senior counsel for the respondent submitted that an offence will involve violence against a person if either the elements of the offence include violence against a person, or the actual facts of the offence include violence against a person, even if violence against a person is not an element of the offence. Senior counsel contended that the use of the word ‘involves’ demonstrated that Parliament intended for the definition of ‘serious Australian offence’ to have a broader application than just to offences that had violence against a person as an element. In this regard, he contrasted the use of the word ‘involves’ in para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act with the use of the word ‘is’ in para (a)(ii) of the definition.
Senior counsel for the respondent referred to the explanatory memorandum to the Bill which introduced the definition of ‘particularly serious crime’ in the Act, namely the Migration Legislation Amendment Bill (No 6) 2001 (‘Explanatory Memorandum to the 2001 Bill’). That explanatory memorandum stated that the definition ensured that the core types of criminal offences which are viewed by the community as being particularly serious are treated as ‘particularly serious crimes’. It was submitted that this legislative purpose is better served by construing the definition as encompassing both an offence that contains legal elements that include violence against a person and an offence where the facts of the offence committed include violence against a person.
According to senior counsel for the respondent, because the definitions of ‘serious Australian offence’ and ‘serious foreign offence’ in s 5(1) of the Act both refer to offences that ‘involve violence against a person’, they should be construed consistently. It was said that an approach which focused solely upon the elements of an offence would be inappropriate, as the Tribunal would not know how foreign criminal law defines offences, but the Tribunal would be able to ascertain the actual circumstances of the offending from the foreign court’s judgment.
The starting point for my analysis is the meaning of the word ‘violence’. In my opinion, in the context of the definition of ‘serious Australian offence’ in 5(1) of the Act, violence means the application of physical force against the body of the victim. In other words, the offender must be criminally responsible for an act which results in physical contact being made with the victim’s body.
The meaning of the word ‘violence’ that I have adopted is consistent with some dictionary definitions of that term. For example, the Oxford English Dictionary relevantly defines ‘violence’ as the ‘exercise of physical force against a person’.
In my opinion, in order for an offence to ‘involve’ violence against a person for the purposes of para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act, one of the elements of the offence – at the time the offence was committed – must have been violence against a person. That does not mean that the description of the elements of the offence must include the phrase ‘violence against a person’. Rather, it means that the description of the elements must be such as to convey that the application of physical force against the body of the victim is required for the offence to be committed. It follows that an offence cannot fall within para (a)(i) of the definition if, at the time the offence was committed, its elements did not include violence against a person (in the sense I have explained), even if the offender was violent against a person in the course of committing the offence. There are two reasons for this conclusion.
First, an offender can only be convicted of an offence for which they are charged. An indictment or charge sheet identifies the offence charged by reference to the elements of the offence and (in the case of a statutory offence) the section of the statute that establishes it. If the offender is convicted, they are sentenced for the offence charged. They cannot be convicted and sentenced for an offence for which they are not charged. Whether an offence involves violence against a person is to be determined objectively based upon an indictment or charge sheet, the section of the statute that establishes the offence (in the case of statutory offences) and the order of the court recording the conviction and sentence for the offence.
Where violence against a person is not an element of an offence, such violence will not be referred to in the charge and the offender cannot be punished for such violence unless they are charged with a separate offence which involves such violence as an element of the offence.[21] This proposition can be illustrated by an example involving an offender who approaches a victim from behind while the victim is walking and steals a mobile phone from the victim’s back pocket and who, in the course of snatching the mobile phone, punches the victim on the back of their head without any threat or warning. If the offender is charged, convicted and sentenced only for the offence of theft, on no view could it be said that the offender was convicted and sentenced for an offence involving violence against a person. That is so even though violence was inflicted in the course of the commission of the offence of theft.
[21] R v De Simoni (1981) 147 CLR 383, 389; Salapura v The Queen [2018] VSCA 255, [58] (‘Salapura’).
Senior counsel for the applicant was correct to concede that the offence of recklessly causing serious injury involves violence against a person and thus satisfies the definition of ‘serious Australian offence’ in s 5(1) of the Act. That is because, as discussed at [‎22] above, one of the elements of the offence is causing serious injury to the victim. Self-evidently the victim cannot be physically injured unless physical force is applied to them. On the other hand, the offence of aggravated burglary, which the applicant committed on the same day as the recklessly causing serious injury offence,[22] does not involve violence against a person. That offence carries a maximum penalty of 25 years’ imprisonment under s 77 of the Crimes Act 1958 (Vic). Pursuant to that section, read together with s 76, the offence is complete as soon as the offender enters a property as a trespasser where they do so with the intention to steal something, assault someone or damage property and they are either carrying an offensive weapon or know that there is a person present (or are reckless as to whether a person is present).[23] In the present case, the injury to the victim was not caused in the course of the applicant committing the aggravated burglary. Rather, it resulted from the commission of the separate offence of recklessly causing serious injury.
[22] See [‎137(10)] and [‎145] to [‎151] below.
[23] Salapura [2018] VSCA 255, [55]–[57].
Secondly, the fact that the definition of ‘serious Australian offence’ in s 5(1) of the Act refers to the maximum penalty prescribed for the offence, rather than the sentence imposed upon the offender for the offence, indicates that the word ‘involves’ refers to the elements of the offence rather than the factual circumstances of the offender’s commission of the offence. In order to identify the maximum penalty applicable to an offence, one must look at the statute that establishes the offence – as in force at the time the offence was committed – rather than the sentence imposed by a court. Likewise, in the case of a statutory offence, in order to identify whether an offence involves violence against a person, one must look at the terms of the statute that establishes the offence, in force at the time the offence was committed.[24]
[24] See AFF20 [2022] FCA 1564, [24]–[30].
Some offences contain alternative elements, one of which is violence against a person. As appears from [‎23] above, the offence of common law assault falls into this category. Another offence which falls into this category is robbery. Under s 75(1) of the Crimes Act 1958 (Vic), that offence can be committed either by the use of force or by putting a person in fear that they will be subjected to force. Whether these types of offences fall within para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act will depend upon which of the alternative elements was the basis upon which the offender was charged, convicted and sentenced. This will require an examination of the elements of the offence at common law or an applicable statute, the indictment or charge sheet and the order of the court recording the conviction and sentence for the offence. The court’s sentencing remarks may also indicate the basis upon which the offender was charged, convicted and sentenced.
The reason that the terms of the statute as in force at the time the offence was committed, rather than any later time, must be considered is that a person can only be charged, convicted and sentenced on the basis of the law as it stood at the time the conduct said to constitute the offence was committed.[25] It is not presently necessary to consider the circumstances in which changes in the criminal law can operate retrospectively.
[25] See eg PGA v The Queen (2012) 245 CLR 355, 416 [165].
I have not been assisted by the respondent’s reliance on the Explanatory Memorandum to the 2001 Bill. The reference to the community’s view of what is a particularly serious offence does not provide any useful guidance on the meaning of the phrase ‘offence … involves violence against a person’ in the definition of ‘serious Australian offence’ in s 5(1) of the Act. Nor have I been assisted by the contrast between use of the word ‘involves’ in para (a)(i) of the definition and use of the word ‘is’ in para (a)(ii). The contrast can be explained by the different types of offences being described.
Initially, I thought there was some force in the respondent’s reliance upon the definition of ‘serious foreign offence’ in s 5(1) of the Act. But, on reflection, that definition has not assisted me. I accept that the phrase ‘offence … involves violence against a person’ must be construed in a similar manner for both that definition and the definition of ‘serious Australian offence’. However, there are two reasons for rejecting the proposition that potential difficulties in ascertaining the elements of a foreign offence detract from the phrase ‘involves violence against a person’ being construed as referring to the elements of an offence.
The first reason is that the contents of foreign law is a question of fact which often presents difficulties and is usually addressed by expert evidence.
The second reason is that I am not persuaded that ascertaining the elements of a foreign offence will be more difficult than ascertaining the circumstances in which such an offence was committed in a particular case. In some countries, the elements of an offence are codified in readily available statutes but there may not be a legal requirement for the publication of reasons for sentence or other documents which set out the circumstances of particular offending. If reasons for sentence are not published, in the case of a conviction by jury verdict, it will be known that the jury accepted the facts establishing the elements of the offence, but it will not be known whether the jury accepted any other facts that were the subject of evidence.
It is worth bearing in mind that an offence which does not fall within para (a)(i) of the definition of a ‘serious Australian offence’ in s 5(1) of the Act may nevertheless constitute a particularly serious crime. Whether it does so is not confined to the elements of the offence but must be assessed on the basis of the circumstances of the particular case.[26] Thus, a robbery that was committed by placing the victim in fear of physical force, but without any physical force being applied, will not fall within para (a)(i) of the definition of ‘serious Australian offence’ but may well constitute a particularly serious crime.
[26] Betkoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463, 467–9 (‘Betkoshabeh’).

Whether a threat of violence constitutes ‘violence against a person’

Senior counsel for the applicant submitted that, where the elements of an offence include a threat of violence but not actual violence, that offence does not ‘involve violence against a person’ and therefore cannot fall within para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act.
Senior counsel for the respondent submitted that if something was commonly thought of as a crime of violence, then it should be considered to be a crime which ‘involves violence against a person’. He gave the example of a threat to kill, which would be ordinarily understood as a crime which involves violence.
Senior counsel for the respondent referred to a number of authorities which he contended established that violence against a person includes a threat of violence. Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was said to stand for the proposition that, in some contexts, violence can be understood to extend beyond physical harm.[27] Counsel also cited R v Galas,[28] in which the Victorian Court of Appeal agreed with the earlier decision of the Full Court of the Victorian Supreme Court in R v Butcher[29] that the crime of robbery, which can be committed by threat or by force, involves an act of violence, even when it is committed by threat.[30]
[27] (2020) 276 FCR 516, 532 [59] (‘Vu’).
[28] (2007) 18 VR 205 (‘Galas’).
[29] [1986] VR 43, 50 (‘Butcher’).
[30] Galas (2007) 18 VR 205, 213–14 [31]–[32]. See [‎41] above.
Senior counsel for the respondent also relied upon the Tribunal’s ‘A Guide to Refugee Law in Australia’ publication, which quotes from some documents that suggest that violence against a person includes threats of violence.[31] While acknowledging that the Tribunal’s publication was no more than a guide, senior counsel for the respondent contended that it should be given the utmost respect, as it was prepared by experts in the field.
[31] Administrative Appeals Tribunal, A Guide to Refugee Law in Australia (Commonwealth of Australia, 2023), 7-60.
In my opinion, an offence whose elements include a threat of violence against a person but not actual violence against a person does not satisfy para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act. There are four reasons for this conclusion.

First, statutes create offences involving threats of physical harm which are distinct from offences involving actual physical harm. Where both threats of physical harm and actual physical harm are intended to be covered, the statute usually expressly provides for this. For example, the Crimes Act 1958 (Vic) provides for separate offences of intentionally or recklessly causing serious injury on the one hand and intentionally or recklessly threatening to inflict serious injury on the other hand.[32] By way of further example, s 195H(1) of the same Act, which establishes the offence of affray, commences ‘A person who uses or threatens violence’. And, self-evidently, the making of threat to kill is a separate offence to the offence of murder.
[32] See Crimes Act 1958 (Vic), ss 16, 17, 21.
In these circumstances, the reference to ‘violence against a person’ without any mention of ‘threat of violence against a person’ in para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act suggests that only actual violence was intended to be included within that paragraph. If Parliament had intended to include threats of violence, it would have been easy for it to include additional words in the definition to make this intention clear.
Secondly, as I have already mentioned, some dictionary definitions of ‘violence’ do not refer to threats of violence.[33]
[33] See [‎35] above.
Thirdly, the preposition ‘against’ suggests physical contact with the person against whom violence was committed.
Fourthly, the harm to a person resulting from a threat of violence is likely to differ from the harm resulting from actual violence, although some overlap is possible. In the former case, the person may experience fear and possibly suffer psychological harm, but it is unlikely that they will suffer a physical injury. In the latter case, the person is likely to suffer a physical injury and may also experience fear or suffer psychological harm.
In my opinion, Cakmak v Minister for Immigration and Multicultural and Indigenous Affairs[34] does not affect the above analysis. That is because that case involved domestic violence in circumstances where the relevant regulations defined ‘violence’ to include a threat of violence. Similarly, Vu – upon which the respondent relied – involved statutory provisions with particular definitions relating to domestic violence. O’Callaghan J, with whom Katzmann and Stewart JJ agreed, acknowledged that whether the word ‘violence’ includes stalking, intimidation or forms of non-physical harm will depend on the statutory language in question.[35]
[34] (2003) 135 FCR 183, 188 [14]. See also Sok v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 170, 174 [12], 175-7 [17]–[27].
[35] (2020) 276 FCR 516, 532 [59]. WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 does not provide any assistance in this context because the Full Court of the Federal Court was not required to consider the scope of the definition of ‘serious Australian offence’ or the phrase ‘particularly serious crime’.
The above analysis is also not affected by Galas, upon which the respondent relied, or the earlier case of Butcher, which was followed in Galas. In Butcher, the Full Court of the Supreme Court of Victoria stated that putting a person in fear or seeking to put a person in fear of being subjected to force has always been accepted under the common law as violence.[36] However, these observations were made specifically in the context of the offence of robbery[37] and the ‘felony murder rule’ as reflected in s 3A of the Crimes Act 1958 (Vic).
[36] Butcher [1986] VR 43, 50. See also R v Galas (2007) 18 VR 205, 213–14 [31]–[32].
[37] See [‎41] above.
In any event, for the reasons discussed above, there are cogent reasons in support of the proposition that para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act requires actual violence. Further, even if a threat of violence was generally sufficient to constitute violence at common law, the definition of ‘serious Australian offence’ seeks to clarify the meaning of the phrase ‘particularly serious crime’ in art 33(2) of the Convention, and thus is intended to reflect the provisions of an international instrument rather than the common law of Australia.[38]
[38] See Explanatory Memorandum to the 2014 Bill, 179 [1227].
Contrary to the submissions of senior counsel for the respondent, the Tribunal’s ‘A Guide to Refugee Law in Australia’ publication does not express any views of the Tribunal. That publication makes brief reference to some documents – but not case law – without expressing any opinion on the correctness of the views set out in those documents. The documents to which the publication refers have not assisted me.
The combined effect of my conclusions at [‎36] and [‎52] above can be illustrated by an example of an offender who, in the course of being arrested, threatens to punch police officer ‘A’ and succeeds in punching police officer ‘B’. If the offender is charged, convicted and sentenced for common law assault constituted only by the threat made to police officer ‘A’, that offence would not satisfy para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act even though the incident that gave rise to the conviction involved actual violence against police officer ‘B’.
It should be noted that, although an offence involving a threat of violence does not satisfy para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act, depending on the circumstances, it may constitute a ‘particularly serious crime’. In the case of the offence of making a threat to kill – upon which senior counsel for the respondent relied – whilst that offence does not satisfy that paragraph of the definition, depending on the circumstances, the offence may constitute a ‘particularly serious crime’.

Danger to the Australian community
Concept of ‘danger’

Neither the Act nor the Convention defines the concept of ‘danger’ for the purposes of s 36(1C)(b) of the Act, and a precise definition is likely not possible. It is a term of everyday usage without a technical meaning and should be understood to carry its ordinary meaning. It falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given case.[39]
[39] DMQ20 [2023] FCAFC 84, [106], [118].
Conceptually, ‘danger’ is a function of probability and consequence, both of which may be measured along spectra. When assessing the presence of danger (in the sense that the natural and ordinary meaning of that word imports), the required analysis is both quantitative (what is the level of probability that something might happen?) and qualitative (what are the consequences if it does?). The process of assessing what combinations of probability and consequence suffices to qualify as ‘danger’ for the purposes of s 36(1C)(b) of the Act involves speculation and thus is not capable of producing a precise determination.[40]
[40] DMQ20 [2023] FCAFC 84, [107], [110], [113].
For the purposes of the qualitative dimension in the probability component of the concept of ‘danger’, ‘risk’, ‘possibility’ and ‘probability’ are synonymous, in the sense that there exists a ‘danger’ if there is a sufficient risk, possibility or probability of sufficient harm. The use of adjectives such as ‘real’, ‘significant’ and ‘substantial’ to describe what suffices for present purposes is misconceived. A person that presents a sufficient likelihood of sufficient harm will pose a danger even though there remains a prospect – and perhaps, in some cases, a likelihood – that the harm might never be realised.[41]
[41] DMQ20 [2023] FCAFC 84, [109]–[110].
For the purposes of the qualitative dimension in the consequence component of the concept of ‘danger’, as s 36(1C)(b) of the Act involves an exception to Australia’s protection obligations, it is likely that Parliament intended that the consequence should involve harm of non-trivial kinds. Accordingly, even a very high likelihood or certainty that a person might cause others to feel anxious, offended, embarrassed, miserable or despondent is unlikely to suffice. ‘Danger’ implies a prospect (however measured) of injury (at the very least), most likely of physical or psychological kinds.[42]
[42] DMQ20 [2023] FCAFC 84, [111].
It follows that a person will pose a ‘danger’ insofar as there is a sufficient likelihood (as described above) that they will engage in conduct that visits upon others a sufficient degree of harm (as described above).[43]
[43] DMQ20 [2023] FCAFC 84, [107].
The principles summarised at [‎64] to [‎68] above are derived from the plurality decision of Thomas and Snaden JJ in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[44] Their Honours made the following concluding observations:
To speak of the presence of ‘danger’, then, is to speak of a risk of harm that extends beyond what ordinarily attends routine human activity. …
Insofar as danger might present in the form of a person (as s 36(1C) of the Act contemplates), the likelihood that he or she might visit harm upon others must at least rise beyond what is contemplated by ordinary personal interactions. …
In its human form, then, ‘danger’ presupposes that there should be something about a person’s character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person’s prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.[45]
[44] [2023] FCAFC 84.
[45] DMQ20 [2023] FCAFC 84, [114]–[116].
In DMQ20, Rares J adopted a different approach to the concept of ‘danger’ than that of Thomas and Snaden JJ.[46] The reasoning of Thomas and Snaden JJ was adopted by Jackson J (with whom Snaden J agreed) in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[47] In SLGS, Rares J stated that, although he adhered to his reasoning in DMQ20, he agreed that the reasoning of Thomas and Snaden JJ must now be applied.[48]
[46] Rares J adopted the test that a person is a danger to the Australian community if they pose a serious threat of causing substantial, rather than negligible, harm because they would, or would be likely to, commit a crime or crimes or act in such a way that offended significant societal norms in that society. See DMQ20 [2023] FCAFC 84, [67].
[47] [2023] FCAFC 104, [82], [92] (‘SLGS’).
[48] SLGS [2023] FCAFC 104, [1].

Relationship between index offence and assessment of danger to Australian community

It will be recalled that the criterion in s 36(1C)(b) of the Act is expressed as follows: ‘the applicant is not a person whom … having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community’.
The relationship between the phrase ‘having been convicted by a final judgment of a particularly serious crime’ and the phrase ‘is a danger to the Australian community’ was the subject of considerable argument before me.
For the purposes of analysis, it will be convenient to refer to the particularly serious crime which is relied upon as the ‘index offence’. In the present context – namely, the relationship between the index offence and the assessment of whether a person is a danger to the Australian community – all the circumstances of the index offence are relevant, and not just the elements of the offence.
Senior counsel for the applicant submitted that there must be a relationship between the conviction for the index offence and the danger posed to the Australian community. It was said that, while the Tribunal would not blind itself to any conduct by an offender which did not amount to a particularly serious crime, the conviction for the index offence must colour the nature of the danger to which the decision maker may have regard.
Senior counsel for the applicant contended that, when determining whether an offender is a danger to the Australian community, the type of danger is dictated by the index offence, in the sense that one considers whether the offender may offend again in a similar way as the index offence. She emphasised that s 36(1C)(b) of the Act is an exception to Australia’s non-refoulement obligations and should be strictly or narrowly construed. She argued that it would not be appropriate to put a disproportionate level of scrutiny on an offender by analysing matters of life or character. She pointed to the fact that there are separate provisions in the Act upon which an offender’s visa can be cancelled on character grounds.
Senior counsel for the applicant relied upon the statement in Davies J in WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs that there must be a link between the conviction for a particularly serious crime and the consideration that the person, so convicted, constitutes a danger to the Australian community.[49] According to counsel, that statement supported the proposition that there must be a causal connection between the index offence and any danger to the Australian community. She argued that the fact that s 36(1C)(b) of the Act refers to a criterion in the singular provides textual support for that proposition.
[49] [2020] FCA 1060, [25] (‘WGKS’).
Senior counsel for the respondent submitted that there is no requirement that the danger posed be linked to the conviction for the index offence. As a pure question of law, he contended that the Tribunal could assess whether a person is a danger to the Australian community without reference to the index offence. However, he argued that, as a practical matter, the conviction for the index offence would be expected to be an important consideration in assessing whether a visa applicant was a danger to the Australian community. He also argued that, in s 36(1C)(b) of the Act, conviction for the index offence is a prerequisite, but the actual criterion is that the offender is not a person whom the Minister considers, on reasonable grounds, is a danger to the Australian community.
Senior counsel for the respondent relied upon the description by Davies J in WGKS of the conviction for a particularly serious crime act as a ‘gateway requirement’.[50] This was said to support the proposition that the question whether an offender is a danger to the Australian community is unrelated to the index offence.
[50] WGKS [2020] FCA 1060, [25].
Senior counsel for the respondent relied upon the statement of Jagot and Barker JJ in SZOQQ v Minister for Immigration and Citizenship that the requirement that a person constitutes a danger to the Australian community is ‘additional’ to the finding of a conviction for a particularly serious crime.[51] He submitted that this statement provides some indirect support for the proposition that the question of danger to the Australian community is a separate and distinct requirement from the question of conviction for the index offence.
[51] (2012) 200 FCR 174, 189 [52] (‘SZOQQ’).
Senior counsel for the respondent also relied upon a statement by Tamberlin DP in WKCG v Minister for Immigration and Citizenship that, once a person has been convicted of a particularly serious crime, it was then necessary to consider whether the person is a danger to the Australian community as a separate and additional matter which must be independently established.[52] Tamberlin DP went on to observe as follows:
if a person is convicted for a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in [art 33 of the Convention]. Accordingly, I … reject the submission of the applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.[53]
[52] (2009) 110 ALD 434, 438–9 [29]; [2009] AATA 512 (‘WKCG’).
[53] WKCG (2009) 110 ALD 434, 438–9 [29]; [2009] AATA 512.
Senior counsel for the respondent contended that the above observation was compelling. While acknowledging that WKCG was a decision of the Tribunal, and accordingly has no precedential value, senior counsel argued that it was persuasive as a decision of a former Federal Court judge with considerable experience in migration law. Senior counsel also relied upon JRJZ v Minister for Home Affairs,[54] in which Rayment DP agreed with the analysis in WKCG.
[54] (2018) 162 ALD 586, 591 [22]; [2018] AATA 3687 (‘JRJZ’).
In my opinion, there are four possible ways of construing the relationship between the index offence and the question whether the offender is a danger to the Australian community.
The first construction is that the index offence is a mere gateway. By this, I mean that once it has been established that the offender has been convicted of the index offence, there is no requirement that there be any causal connection between the index offence and the assessment of whether the offender is a danger to the Australian community.
The second construction is that there must be a causal connection between the index offence and the assessment that the offender is a danger to the Australian community, and that that causal connection can only be satisfied if the index offence is the sole cause for that assessment. On this construction, there must be an exclusive causal relationship between the index offence and the assessment that the offender is a danger to the Australian community.
The third construction is that there must be a causal connection between the index offence and the assessment that the offender is a danger to the Australian community, and that that causal connection can only be satisfied if the index offence is the dominant cause for that assessment. On this construction, there may be other contributing factors to the assessment provided that the index offence is the main contributing factor.
The fourth construction is that there must be a causal connection between the index offence and the assessment that the offender is a danger to the Australian community, and that that causal connection can be satisfied if the index offence is a cause for that assessment. On this construction, the causal connection can be established if the index offence is one of the factors that contributes to the assessment that the offender is a danger to the Australian community, even if it is not the dominant or sole contributing factor. This construction borrows from the law of negligence, whereby a defendant may be liable to a plaintiff if the defendant’s negligence was a cause of the plaintiff’s loss.[55]
[55] Chapman v Hearse (1961) 106 CLR 112, 121, 122, 125.
Unaided by authority, I would have concluded that the fourth construction is correct for the following reasons.
I commence with consideration of whether the phrase ‘having been convicted of a particularly serious crime’ requires some causal connection between that crime and the assessment of whether the offender is a danger to the Australian community. There are three reasons in favour of such a causal connection being necessary.
The first reason is that the phrases ‘having been convicted of a particularly serious crime’ and ‘danger to the Australian community’ form part of a single criterion or requirement rather than separate criteria or requirements. This suggests that the two phrases are linked, in the sense that an assessment of danger to the Australian community cannot be made entirely independently of the index offence. In other words, it suggests that the index offence is not merely a historical precondition that is otherwise irrelevant to the assessment of whether a person constitutes a danger to the Australian community.

The second reason is that, if it had been intended that there be no causal connection between the index offence and the assessment that a person is a danger to the Australian community, there would be no reason to require a conviction for a particularly serious crime. The sole criterion would have been that the person is a danger to the Australian community, and the determination of whether that criterion was satisfied would be based upon all matters that were relevant to that determination, including the person’s character. The fact that the criterion in the provision immediately before s 36(1C)(b) in the Act (namely s 36(1C)(a)) is expressed as ‘a person … is a danger to Australia’s security’ provides contextual support for the proposition that, where Parliament intends that an assessment of danger is to be made on a freestanding basis without any causal connection to any particular event, the criterion is drafted accordingly.
The third reason is that the fact that s 36(1C)(b) of the Act is an exception to Australia’s protection obligations and the fact that the exception contains a high threshold of ‘particularly serious crime’ strongly suggest that that threshold must be taken into account in assessing whether a person is a danger to the Australian community. If this were not the case, and the first construction were adopted, the carefully calibrated balance in the Act between Australia’s protection obligations and protection of the Australian community would be undermined.
The above proposition can be illustrated by the example provided by Tamberlin DP in the observations from WKCG set out at [‎80] above. In that example, if the person’s crime of violence was committed so long ago that it cannot have any bearing upon whether they are a danger to the Australian community, it is difficult to see how any conduct by them which falls short of a conviction for a particularly serious crime can justify a finding that they pose such a danger. Further, in that example, it is not clear how drug trafficking can be a basis for a conclusion that a person is a danger to the Australian community unless they are convicted of a serious drug offence within para (a)(ii) of the definition of ‘serious Australian offence’ in s 5(1) of the Act. Clearly, the fact that the person is suspected of engaging in drug trafficking or even that they are charged with drug trafficking would be insufficient. And, if it is necessary for the person to be convicted of a serious drug offence, that conviction would provide the necessary causal connection with the assessment of danger to the Australian community without the need to rely upon the historical crime of violence.
On the basis of the above reasons, acceptance of the proposition that the phrase ‘having been convicted of a particularly serious crime’ requires a causal connection between the index offence and the assessment that a person is a ‘danger to the Australian community’, raises the question of the degree of causal connection that is required. In other words, would it be sufficient that the index offence is a contributing cause or must it be the dominant or sole cause? Put another way, if, on my reasoning, the first construction is incorrect, is the correct construction the second, third or fourth construction? In my opinion, the fourth construction is preferable for two reasons.
First, the fourth construction best gives effect to the carefully calibrated balance in the Act between Australia’s protection obligations and protection of the Australian community. If the index offence contributes to an assessment that a person is a danger to the Australian community but it is neither the sole nor the dominant contributing factor, there would be no rational basis for a finding that the exception in s 36(1C)(b) of the Act does not apply to the protection obligations owed to the person. The fact that there may be other factors which make a greater contribution to that assessment would not be a sound reason for depriving the Australian community of protection by finding that the exception does not apply.
Secondly, the second and third constructions may lead to practical difficulties and potentially absurd results. As discussed below, the assessment of danger to the Australian community is multifactorial.[56] As such, in many cases, it will be impossible to isolate any individual factor as the dominant contributing factor let alone the sole contributing factor. It would be irrational to conclude that the exception to Australia’s protection obligations does not apply to a person who was clearly a danger to the Australian community simply because it could not be established that the index offence was the sole or dominant contributing cause for that assessment. I note that in A v Minister for Immigration and Multicultural Affairs, Burchett and Lee JJ rejected the proposition that the index offence must be the ‘sole determinant’ or ‘sole pivot’ of whether a person is a danger to the Australian community.[57]
[56] See [‎109] below.
[57] [1999] FCA 227, [3]–[4].
In summary, unaided by authority, I would have concluded that the index offence must be a contributing factor to the assessment that a person is a danger to the Australian community. Once that threshold requirement has been met, all other factors that rationally bear upon that assessment can also be taken into account. Such other factors include the circumstances of all other offences for which the offender has been convicted even though they do not constitute serious Australian offences or, more generally, particularly serious crimes.
I will now deal with whether there is any binding authority preventing adoption of the fourth construction.
The authorities that have considered the issue of a causal connection between the index offence and the assessment of danger to the Australian community have not referred to the taxonomy I have adopted, namely, the first to fourth constructions.
In WGKS, Davies J used the expression ‘gateway requirement’ to describe the conviction for a particularly serious crime without explaining what she meant by that expression. However, the following statement of her Honour is inconsistent with the first construction and supports the proposition that there must be a causal connection between the index offence and the assessment of danger to the Australian community:
The person’s conviction for a ‘particularly serious crime’ founds the assessment as to whether the person is a danger to the Australian community but in all cases, the question whether a person constitutes a danger to the Australian community is one of fact and degree. Critically, in making that assessment, there must be a link between the conviction and the consideration that the person, so convicted, constitutes a danger to the Australian community.[58]
[58] WGKS [2020] FCA 1060, [25] (citations omitted) (emphasis added).
The following statements by Bromberg J in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs also support the proposition that there must be a causal connection:
That is the mischief or subject dealt with by s 36(1C) – the protection of Australia and the Australian community from persons who by reason of their past criminality pose a danger to the Australian community or alternatively are a danger to Australia’s security. …
To engage [s 36(1C)(b)] a person must have been convicted by a final judgment of a ‘particularly serious crime’ (as defined by s 5M) and therefore be a ‘danger to the Australian community’.[59]
[59] (2020) 279 FCR 1, 17 [52], [54] (‘KDSP’) (emphasis added).
The statement of Jagot and Barker JJ in SZOQQ that the ‘danger to the Australian community’ requirement in s 36(1C)(b) of the Act is additional to the conviction of ‘a particularly serious crime’ requirement states the obvious: the two requirements are cumulative.[60] It is insufficient to establish only one of them. The statement says nothing about whether the first requirement must be causally connected to the second requirement.
[60] See [‎79] above.
Having regard to the observation set out at [‎80] above, WKCG – and JRJZ which agreed with the analysis in WKCG – could be interpreted as supporting the first construction and being inconsistent with my preferred approach. However, WKCG does not fully support the first construction. That is because Tamberlin DP acknowledged that the nature and circumstances of the index offence ‘will generally be highly relevant’ to the question of danger to the Australian community, adding that ‘it is not conclusive’.[61]
[61] WKCG (2009) 110 ALD 434, 438–9 [29]; [2009] AATA 512.
The decision providing the most direct support for the first construction – and is thus inconsistent with the other three constructions – is that of Rares J in DMQ20.[62] His Honour stated: ‘Of course, the second limb of Art 33(2) [of the Convention] and s 36(1C)(b) [of the Act] does not require that there be a causal link between the refugee’s conviction and the danger [to the Australian community]’.[63] The plurality in that case, Thomas and Snaden JJ, did not directly address this issue. However, as I have already stated, they adopted a different approach to that of Rares J concerning how the question of ‘danger to the Australian community’ is to be determined.
[62] [2023] FCAFC 84.
[63] DMQ20 [2023] FCAFC 84, [56].
As appears from [‎70] above, in SLGS, Jackson and Snaden JJ adopted the approach of the plurality in DMQ20, and Rares J stated that the reasoning of the plurality must now be applied. Although no member of the Full Court in SLGS directly considered whether there must be a causal connection between the index offence and the assessment that a person is a danger to the Australian community, the following statement of Jackson J in SLGS casts some doubt on whether a causal connection must exist:
On any view, in assessing these matters, the decision maker may consider the particularly serious crime of which the visa applicant has been convicted and the risk that he or she will offend in that way in the future. More broadly, the risk of repetition of other past conduct may also be considered.
In my respectful view, none of this is inconsistent with the approach that Tamberlin DP took in WKCG. The list of factors which the Deputy President set out in that decision remains useful, provided it is approached, not as a ‘test’ or mechanical checklist, but as a guide to assessing the fundamental question of fact.[64]
[64] [2023] FCAFC 104, [84], [85]. At para 60 of his reasons, Jackson J summarised the approach of Rares J in DMQ20 (including the statement set out at [‎103] above), without expressing a view on the correctness of that statement. The ‘list of factors’ to which Jackson J referred are those set out at [‎108] below.
No member of the Full Court in either DMQ20 or SLGS considered the observations of Davies J in WGKS set out at [‎99] above or the observations of Bromberg J in KDSP set out at [‎100] above, which are to the opposite effect of the statement of Rares J in DMQ20 set out at [‎103] above.
It follows from the above analysis that there is some uncertainty about whether there must be a causal connection between the index offence and the assessment that a person is a danger to the Australian community and, if so, the nature of that connection.
In any event, what is clear is that, even if a causal connection is required, factors other than the index offence may be taken into account in determining whether a person is a danger to the Australian community. I now turn to discuss the factors relevant to that determination.

Factors relevant to assessment of ‘danger to the Australian community’

In WKCG,[65] after observing that the question whether a person constitutes a danger to the Australian community is one of fact and degree which must be determined having regard to all the circumstances of each case, Tamberlin DP stated that the considerations relevant to that question include the following factors:
·‘the seriousness and nature of the crimes committed’
·‘the length of the sentence imposed’
·‘any mitigating or aggravating circumstances’
·‘[t]he extent of the criminal history … the nature of the prior crimes, together with the period over which they took place … [t]he criminal record must be looked at as a whole’
·‘[t]he risk of re-offending and recidivism and the likelihood of relapsing into crime’
·‘prospects of rehabilitation’.
[65] (2009) 110 ALD 434, 438 [25]–[26]; [2009] AATA 512.
The factors set out in WKCG are ‘pertinent’[66] and ‘useful’,[67] provided that they are approached not as a ‘test’ or a mechanical checklist, but as a guide to assessing the fundamental question of fact.[68] The assessment required by s 36(1C)(b) of the Act has been described as ‘multifactorial’ and the process of assessment as one ‘in which all factors, by instinctive synthesis, are given consideration’.[69] The factors relevant to the assessment will depend on the facts of each case. The assessment is not constrained by the factors set out in WKCG.
[66]          DOB18 v Minister for Home Affairs (2019) 269 FCR 636, 655 [78].
[67]          SLGS [2023] FCAFC 104, [85].
[68]          SLGS [2023] FCAFC 104, [85].
[69]          FSKY v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 295 FCR 625, 627 [5], 633 [40], 634 [42], 635 [46], 638–9 [65].
The factors set out in WKCG are expressed in clear terms and are well known. Nevertheless, the following observations may be of assistance.
First, there is considerable overlap between the factors. For example, as discussed below, aggravating circumstances are relevant to an assessment of the seriousness of the crime committed. Further, the nature of an offender’s criminal history, some mitigating circumstances and an offender’s prospects of rehabilitation can be very relevant to an assessment of the risk of reoffending.
Secondly, the seriousness and nature of the crimes committed refers to the offender’s actual offending. Some offences are serious but may be committed in a range of ways and in circumstances which vary greatly along a spectrum of gravity. For example, the offence of intentionally causing injury is a serious offence with a maximum penalty of 10 years’ imprisonment under s 18 of the Crimes Act 1958 (Vic) and thus satisfies para (a)(i) of the definition of ‘serious Australian offence’ in s 5(1) of the Act. However, if the injury caused by the offender is minor – such as a miniscule scratch or bruise that heals quickly without leaving a mark – it cannot be said that the offender’s actual offending was at the high end of the spectrum of gravity.
Thirdly, the length of the sentence imposed must be considered in the context of whether the offender has been convicted and sentenced for a single offence or for multiple offences. In the former case, the length of the sentence as a proportion of the maximum penalty may provide an indication of the seriousness of the offending. In the latter case, the individual sentences for each offence and the orders for cumulation made for sentences other than the base sentence are important. For example, an offender may be sentenced at the same time for a minor offence – such as possession of cannabis for personal use – that is committed repeatedly over a period of years, where the individual sentence for each instance of the offence is imprisonment for 1 month but the total effective sentence exceeds 2 years. In such a case, it would be inappropriate to consider only the total effective sentence to the exclusion of the nature of the offending and the sentence for each offence.
Fourthly, in sentencing law, a mitigating circumstance is any circumstance which may warrant moderation in the sentence that might otherwise be appropriate. Mitigating circumstances include: a plea of guilty; cooperation with law enforcement authorities; remorse; demonstrated rehabilitation; the existence of protective factors – such as a supporting family and friendship network – that reduce the risk of reoffending; provision of restitution to victims; and any matter which reduces the offender’s moral culpability for the offence, including youth and mental illness. In relation to mental illness, it is well established that if there is a causal link between the offender’s mental illness and the commission of the offence, the offender may be entitled to mitigation in sentence on the basis that their moral culpability for the offending is reduced.[70]
[70] R v Verdins (2007) 16 VR 269, 276 [32].
Of course, for the purposes of s 36(1C)(b) of the Act, the question that arises in relation to mitigating circumstances is not how they inform an assessment of an appropriate sentence, but how they inform an assessment of whether the offender is a danger to the Australian community. However, depending on the precise facts of a case, there may be some overlap between the two questions, particularly since some mitigating factors may have an impact on the risk of reoffending.[71]
[71] HDYP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 1269, [84]; cf Betkoshabeh (1998) 84 FCR 463, 469, 471.
In the case of a mental illness, if the illness contributes to a person being violent, they can be found to pose a danger to the Australian community notwithstanding the illness may be a mitigating factor for sentencing purposes or might even render them incapable of being found guilty of an offence due to mental impairment. That is because conduct – such as homicide – can render a person a danger to the Australian community even if they cannot be found guilty of any offence for that conduct. However, there must first be a conviction for a particularly serious crime before the issue of danger can arise in relation to conduct that was committed or may be committed subsequent to that conviction.
Fifthly, in sentencing law, an aggravating circumstance is any circumstance, over and above the elements of an offence, which adds to the gravity of the offending. For example, where an offender chooses to punch a wheelchair bound person in a crowded public place and, in the course of doing so, makes derogatory remarks about the victim’s disability, the vulnerability of the victim and their public humiliation may constitute aggravating circumstances for the offence of common law assault. As aggravating circumstances add to the gravity of the offending, they are relevant to an assessment of the seriousness of the offending.
It is important to note that, in sentencing law, aggravating circumstances generally refer to the circumstances of the offending itself and events leading up to it, such as pre-planning. Aggravating circumstances usually do not include conduct subsequent to the offending. For example, an offender’s insistence on exercising the right to silence rather than cooperating with the police following arrest, is not an aggravating circumstance.[72] Further, where the offender commits two offences immediately after each other but is charged with only the first of the offences, the commission of the second offence cannot be treated as an aggravating circumstance of the first offence.[73] Additionally, the absence of a mitigating circumstance – such as lack of remorse and lack of progress towards rehabilitation – cannot be treated as an aggravating circumstance.[74]
[72] Guseli v the Queen (2019) 277 A Crim R 156, 172 [92]; [2019] VSCA 29.
[73] Salapura [2018] VSCA 255 [58].
[74] Roff v The Queen [2017] NSWCCA 208, [19], citing Siganto v The Queen (1998) 194 CLR 656, 663–4 [22].
Once again, for the purposes of s 36(1C)(b) of the Act, the question that arises in relation to aggravating circumstances is how they inform an assessment of whether the offender is a danger to the Australian community, particularly insofar as they may have an impact on the risk of reoffending.

The second stage of the applicant’s proposed treatment would involve him being discharged from a hospital to a SECU. The hospital psychiatrists had a professional duty not to release him into the community if he posed a risk to himself or others. He would be released to a SECU only when a bed became available. She rejected the proposition put to her in cross-examination that the lack of available beds in a SECU might mean the applicant would be released to a less secure facility.
In her written evidence, Dr Zimmerman stated that discharge planning from a SECU ensures that the patient is discharged to appropriate accommodation and has access to ongoing mental health treatment and support. The process of linking up with community mental health support networks begins as an inpatient and often involves NDIS-funded workers who can build rapport and start working with the patient on appropriate goals. Discharge planning often involves a trial discharge or a transitional discharge, to a less restrictive environment such as a CCU.
Dr Zimmerman gave evidence that, upon being released to a SECU, the applicant would still be subject to an involuntary treatment order and could receive long term care. In order to remain subject to an involuntary treatment order, the treatment order would need to be renewed every six months by the MHT. The applicant could spend many years in a SECU before being assessed as being fit to be released into the community, and might never be assessed as being fit for such release. Dr Zimmerman stated that she was aware of a patient who spent 12 years in a SECU.
Dr Zimmerman gave evidence that, in her experience, during the period that the applicant was in a SECU, all treatment decisions would be made by his treating team. He could also receive treatment for his drug addiction in an SECU, such as methadone and counselling, save that it was not possible to involuntarily treat a person for drug addiction. Steps would be taken to address his substance misuse disorder once his mental state had been brought into at least partial remission.
In cross-examination, Dr Zimmerman stated that treatment orders are not made under the Victorian Mental Health Act purely for a substance misuse disorder. However, where a treatment order is made in relation to a patient who suffers from schizophrenia, the treatment the patient receives in a SECU would address both the schizophrenia and the disorder because one aggravates the other.
Dr Zimmerman gave evidence that, when the applicant’s mental illness is brought under control in a SECU, broader recovery goals can be worked upon to further reduce the risk of future offending if he is released into the community. Those goals would include finding appropriate long term housing and linking in with social supports. In cross-examination, Dr Zimmerman stated that ‘SECU wouldn’t discharge someone without those supports being in place’.
The third stage of the applicant’s proposed treatment involved the applicant being released into a community care unit (‘CCU’) on an involuntary community treatment order, which would require him to complete treatment in the community, in a less secure residential environment. While residing in a CCU, he would remain a compulsory patient, and he would be required to remain engaged with treating clinicians and to have prescribed medication. He would have ongoing access to a case manager and psychiatrist in a CCU. If he did not comply with the community treatment order, the order would be revoked and he would be returned to a hospital or a SECU under an involuntary inpatient treatment order. In cross-examination, Dr Zimmerman stated that, currently, a CCU is not appropriate for the applicant.
In her written evidence, Dr Zimmerman referred to the requirement in s 143 of the Victorian Mental Health Act that the MHT must determine that a less restrictive option is not available before making a compulsory treatment order. She stated that a less restrictive option – such as voluntary treatment – is not available in the applicant’s case because he has a history of stopping treatment at the first opportunity.
As I have mentioned, the applicant’s involuntary treatment order would need to be renewed every 6 months by the MHT. In response to a question from the Bench, Dr Zimmerman gave evidence that the MHT would regularly renew the applicant’s treatment order unless the MHT formed a view that the risk to him and the community was of an acceptable level.
In cross-examination, Dr Zimmerman stated that she thought that the applicant’s treatment orders would be regularly renewed and that he would not be discharged from a SECU to a CCU until it was determined that he posed an acceptable risk to the community. Risk was only one factor that would be taken into account in deciding whether to release him. It would also be necessary to look at whether there was a support package in place, not just whether there was an acute risk of violence. When asked in cross-examination whether the applicant would be released despite continuing to use drugs, she said that, in her experience, people had been released from a SECU while they were still using some cannabis, however if the applicant was still using ice, there was ‘no way’ a SECU would release him.
In response to questions from the Bench, Dr Zimmerman stated that the ultimate question that clinicians will ask themselves before releasing the applicant in the community is: ‘Will he be able to live a safe and secure life in the community in terms of his own life, the risks to himself, but also the risks to other people?’ She added that the risk of reoffending can never be reduced to zero.
In cross-examination, Dr Zimmerman acknowledged that when a treatment order is renewed by the MHT, that tribunal is required to consider whether there are less restrictive means of treatment available, and that risk to the community is not the only factor taken into account. She stated that the need to balance risk to the community with the availability of less restrictive means of treatment would become more of a judgement as the applicant progressed toward recovery. In re-examination, Dr Zimmerman stated that, in considering the need for treatment in the least restrictive way, one does not apply for treatment in an environment which increases the risk of harm to others or the applicant.

Causal link between applicant’s offending and mental illness

In her written evidence, Dr Zimmerman stated that there was no evidence of a direct link between the applicant’s non-violence offending – such as drug possession and failing to provide his name – and his schizophrenia. These types of offences may be explained by the chaos and disorganisation in the lives of psychotic patients. There was no evidence to establish a link between the applicant’s paranoid delusions and the aggravated burglary he committed in 2005.[87]
[87] See [‎145] to [‎151] above.
Dr Zimmerman stated that there was a direct link between the applicant’s later violent offending and his mental illness. There was a clear suggestion that his conviction for entering a private place without permission in 2018 was as a result of his psychosis which was manifesting in grandiose delusions at the time. In cross-examination, she stated that the applicant’s schizophrenia and substance use were a key cluster of risk areas, which needed to be addressed more urgently than other risk areas, such as his homelessness and unemployment.

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – PARTIES’ SUBMISSIONS

Senior counsel for the applicant submitted that the enquiry as to whether the applicant is a danger to the community is prospective in nature, and that the Tribunal should not focus solely on the seriousness of the applicant’s past conduct. She contended that the statutory scheme by its very nature envisaged that a person who had committed a particularly serious crime may not be a danger to the Australian community.
Senior counsel for the applicant also contended that the evidence of Dr Zimmerman identified links between the applicant’s offending and his mental illness, substance abuse and non-compliance with antipsychotic medication. Counsel argued that the risk the applicant currently posed is that he may offend as a result of his untreated mental illness.
The applicant’s senior counsel conceded that if the applicant was released into the community untreated and without any supports, he would constitute a danger to the Australian community. However, counsel submitted that, based upon the evidence, there was no universe in which the applicant would be released without appropriate treatment or support. Accordingly, so it was said, the risk of the applicant reoffending is hypothetical.
The applicant’s senior counsel contended that Dr Zimmerman’s staged treatment process, which is not available to the applicant while he is in immigration detention, would bring his state into at least partial remission, at which point he could work on his substance misuse and broader recovery goals. Counsel also referred to the fact that while the applicant was well in 2019, he took positive steps towards addressing the matters which contributed to his offending, including by being compliant with his medication and showing remorse and insight into his offending and mental illness.
The applicant’s senior counsel relied upon Dr Zimmerman’s evidence concerning the responsibilities of the applicant’s treating psychiatrists in deciding whether to release him into the community, and the power of the MHT to regularly renew his treatment orders. She referred to the fact that Dr Zimmerman’s evidence of the possible staged treatment process was uncontradicted and that the respondent had not called any evidence to suggest that the treatment path proposed for the applicant was not available. She argued that the applicant’s Guardian, who had statutory obligations to the applicant under the Victorian Guardianship Act, was another protective factor which would mitigate the risk of the applicant continuing to offend.
According to senior counsel for the applicant, the Tribunal must apply the facts before it to the prospective enquiry of assessing danger to the Australian community. She submitted that, in doing so, the Tribunal must apply the most likely set of circumstances, which were that the applicant had pathways to treatment and support that will reduce his risk of offending to low. It was said that, as almost nobody has a zero risk of reoffending, a low risk was an acceptable risk, such that the applicant is not a danger to the Australian community.
Senior counsel for the applicant submitted that the provisions of the Victorian Mental Health Act adequately contemplate and seek to protect the Victorian community. She contended that, because a SECU is secure, the applicant poses no risk to the Australian community if he is released to a SECU. Further, according to counsel, it could not be said that there was an unacceptably low threshold to release the applicant from a SECU into the community.
Senior counsel for the respondent relied upon four groups of offences in support of the proposition that the applicant was a danger to the Australian community. The first of them was the applicant’s 2008 conviction for recklessly causing serious injury.
The second conviction upon which senior counsel for the respondent relied was the offending for which the applicant was convicted in 2012, described at [‎153] to [‎155] above, save that counsel did not argue that the offences of trafficking cannabis and damage to property were particularly serious crimes. He contended that the other offences were particularly serious crimes and that the sentence of 12 months’ imprisonment demonstrated that they were.
The third conviction upon which senior counsel for the respondent relied was the offending for contravening an intervention order and breaching bail described at [‎156] to [‎157] above. Counsel argued that those offences demonstrated that the applicant had a history of noncompliance with court orders and therefore was a likely risk of reoffending.
The fourth conviction upon which senior counsel for the respondent relied was the offending for trespass, resist police, common law assault and breaching bail described at [‎158] to [‎163] above. He submitted that it was open for the Tribunal to rely upon an informant’s statement to make a finding of fact that the applicant’s offending involved violence, notwithstanding that such evidence would not be admissible in a court. He argued that, while there was a gap in the evidence of the facts of the 2018 offending, the Tribunal should adopt a common sense approach, in which it should find that at least one of the common assaults involved violence.
Senior counsel for the respondent also referred to the offending for which the applicant was convicted in 2004, described at [‎140] above, and submitted that it demonstrated that the nature and frequency of the applicant’s offending was serious when taken as a whole.
In response to a question from the Bench about the most serious offending the applicant had committed, senior counsel for the respondent referred to the aggravated burglary which the applicant committed in 2005. Counsel submitted that, although the victim only suffered relatively minor injuries, the offending could have been worse.
Senior counsel for the respondent referred to the concession by senior counsel for the applicant that the applicant would pose a danger to the Australian community if he is released into the community from immigration detention without any medical treatment or supports. Counsel for the respondent contended that, even with medical treatment and supports, if the applicant is released into the community, the moderate risk of reoffending of a certain kind is sufficiently high and the offences that he might commit are sufficiently severe such that it would amount to a danger to the Australian community.
Senior counsel for the respondent also submitted that the applicant had a number of ‘risk factors’ which suggested that he may reoffend. These were said to include: lack of a serious relationship since 2006; lack of family support; no employment since 2015 and limited community support.
Senior counsel for the respondent contended that Dr Zimmerman’s evidence establishes that, if the applicant does not receive all the treatment she proposed for him, he will be a danger to the Australian community. Counsel argued that the applicant had a history of appearing to be making progress in a hospital environment before relapsing soon after he was returned to immigration detention. He also referred to the applicant’s conduct in the ACT where, after he was released to supported accommodation following treatment as an involuntary patient, he relapsed and breached his psychiatric treatment order.
Senior counsel for the respondent submitted that Dr Zimmerman’s evidence of how the mental health system should work in relation to the applicant came from a position of having built up a knowledge of the applicant over many years, including being aware that one had to be cautious about the appearance that his mental health is improving. Counsel contended that Dr Zimmerman was also assessing the applicant at a point where his mental health was at its worst. Counsel argued that the MHT, which would be making decisions concerning the applicant, would not be in the same knowledgeable position as Dr Zimmerman. Counsel further argued that there would be institutional pressure to consider whether, as the applicant’s mental health improved, he could be safely treated in the community. In this regard, counsel referred to the requirements in the Victorian Mental Health Act for six monthly reviews of treatment orders and the obligation on the MHT to consider less restrictive means.
According to senior counsel for the respondent, it would be a realistic possibility that the applicant would be released into community care when he is only in partial remission in relation to his mental health condition, and it would be legitimate to take that possibility into account in deciding whether he presents a danger to the Australian community.

‘DANGER TO THE AUSTRALIAN COMMUNITY’ – DECISION

In my opinion, senior counsel for the applicant was correct in conceding that the applicant would be a danger to the Australian community if he is released into the community without medical treatment and supports.
The applicant’s criminal history indicates that, from 2002 until he was removed from the community in 2018, he regularly engaged in conduct which endangered the community. During that period, he initially suffered from alcohol addiction and, from 2008, he suffered from drug addiction. His drug and alcohol addiction reduced his ability to make sound judgements and contributed to his offending. In more recent years, he has suffered paranoid schizophrenia contemporaneously with his ongoing drug addiction, the combination of which directly contributed to his offending. That offending has been regular and ongoing.
The applicant’s schizophrenia involves him having bizarre, grandiose and persecutory delusions. The bizarre and grandiose aspects of his delusions include that: he is the main shareholder in Facebook and Google; he invented face recognition technology; he has billions of dollars in bank accounts; and he owns an extensive property portfolio. He believes that he owns other people’s properties and has a tendency to seek to break into them, with a total disregard for the rights and safety of the occupants. The persecutory aspects of his delusions include that spyware has been implanted into his dental bridge and that law enforcement authorities as well as other people with whom he comes into contact – including his lawyers and members of his ethnic group residing in Melbourne – want to steal his wealth and harm him. These persecutory aspects create a risk that he will act violently towards anyone he perceives wishes to harm him.
Applying the analysis in DMQ20[88] summarised at [‎64] to [‎69] above, the level of probability that the applicant will cause physical or psychological injury to a member of the Australian community if he is released into the community without medical treatment and supports is sufficiently high to raise genuine concern for the safety of the Australian community. The consequences of such harm materialising are potentially significant. Whilst the actual injuries to victims that the applicant has inflicted to date have not been severe, in the relevant incidents – particularly those in 2005 and 2018 when the index offences were committed – the injuries were of a concerning nature and there was considerable potential for substantial injuries to be caused to the victims.
[88] [2023] FCAFC 84.
It follows from the above analysis that, if the applicant is released into the community without medical treatment and supports, there is a sufficient likelihood (as explained in DMQ20) that he will engage in conduct that visits upon members of the Australian community a sufficient degree of harm (as explained in DMQ20). Accordingly, in the absence of medical treatment and supports, the only conclusion that would be open to me is that the applicant would constitute a danger to the Australian community. It also follows from my conclusion at [‎264] above that the index offences are a contributing factor in reaching this conclusion. As such, if s 36(1C)(b) of the Act requires a causal connection between those offences and the danger to the Australian community, it exists in the present case.
The critical remaining issue is whether I can be satisfied on the basis of the evidence – particularly that of Dr Zimmerman – that appropriate medical treatment and supports are available to the applicant and that if he receives such treatment and supports, he would not be a danger to the Australian community. Crucial to this assessment is the causal relationship that has been established on the evidence between the applicant’s past offending with drug and/or alcohol addiction (in the case of his earlier offending) or his schizophrenia and drug addiction (in the case of his more recent offending).

I am satisfied on the evidence that, if the applicant’s current drug addiction and mental illness are appropriately managed, it is unlikely that he will continue to engage in the types of offending for which he has been convicted.
Dr Zimmerman has extensive experience in treating prisoners and other individuals with paranoid schizophrenia and, as a member of the MHT, she is familiar with treatment regimes available for such individuals. She gave evidence in a measured and authoritative manner, and made appropriate concessions when warranted. She was a very impressive witness and, as the respondent did not call any evidence, her evidence was not contradicted. Whilst she was asked questions in cross-examination with a view to clarifying or qualifying aspects of her evidence, there was no real challenge to her credibility or the reliability of her evidence. In these circumstances, I have no hesitation in accepting all of Dr Zimmerman’s evidence.
There was also no real challenge to the credibility of Mr Jaffurs and Ms Barker or the reliability of their evidence. They too were impressive witnesses and therefore I accept all of their evidence.
The effect of the evidence before the Tribunal on the critical question referred to at [‎266] above, considered in the context of the provisions of the Victorian Mental Health Act set out at [‎182] to [‎187] above, may be summarised as follows.
First, if the Tribunal finds in favour of the applicant and the Minister grants him a protection visa, it is very likely that the psychiatrist at the detention centre at which the applicant is being held will request that he be assessed by a psychiatrist at an in-patient psychiatric hospital (who is an authorised psychiatrist under the Victorian Mental Health Act) before he is released into the community.
Secondly, it is very likely that an authorised psychiatrist will determine that the applicant meets the compulsory treatment criteria, as set out at [‎182] above. It is very likely that such a determination will result in the psychiatrist making an inpatient temporary treatment order, which will authorise the detention of the applicant in an inpatient psychiatric hospital for the purpose of compulsory treatment. It is very likely that the treatment will include injections of depot antipsychotic medication to address the applicant’s mental illness.
Thirdly, as the maximum duration of an inpatient temporary treatment order is 28 days, it is very likely that the authorised psychiatrist will make an application to the MHT for an inpatient treatment order which, under the Victorian Mental Health Act, can have a maximum duration of 6 months but can be renewed by the MHT upon application. It is very likely that the MHT will make an inpatient treatment order and will continue to renew it until it is satisfied that it is no longer necessary.
Fourthly, while the applicant remains subject to the inpatient treatment order, the treating psychiatrist at the inpatient hospital will assess him from time to time to determine when it will be appropriate to release him to a SECU. It is very likely that a place will be found at a SECU for the applicant without undue delay. Until a place is found, he will remain at the inpatient hospital.
Fifthly, it is very likely that, at some stage, the applicant will be released to a SECU to be detained in accordance with the inpatient treatment order. It is very likely that, at the SECU, he will continue to receive injectable depot antipsychotic medication to treat his mental illness, as well as medication and counselling to treat his drug addiction as part of a holistic approach to the treatment of his mental illness. The treating psychiatrist at the SECU will assess the applicant from time to time and it is very likely that the treating psychiatrist will apply for renewal of the inpatient treatment order as necessary.
Sixthly, it is very likely that the applicant will not be released from detention at the SECU pursuant to an inpatient treatment order to reside at a CCU pursuant to a community treatment order unless and until the treating psychiatrist at the SECU determines that the risk of danger to the applicant and the community is low on the HCR 20 risk assessment tool. It is very likely that such a determination will not be made unless and until the applicant has insight into his mental illness, accepts treatment for it and also accepts treatment for his drug addiction, and that his illness and addiction are in remission. If such a determination is made, a community treatment order can be sought from the MHT. It is possible that the treating psychiatrist may never make such a determination, in which case the applicant will remain at the SECU indefinitely pursuant to ongoing renewal of an inpatient treatment order.
Seventhly, it is very likely that the applicant’s treatment at a SECU will be protracted and that the Guardian will apply to VCAT to extend the Guardianship Order when it is reviewed in early 2024. It is very likely that the Guardianship Order will be extended until such time as the applicant regains decision-making capacity in relation to personal matters such as accommodation.
Eighthly, it is very likely that, if and when the applicant has made sufficient progress in his treatment at a SECU to warrant consideration being given to the making of an application for a community treatment order, the Guardian will take steps to ensure that the applicant has sufficient supports if he is to be released to a CCU or another community setting. Those steps are likely to include an application for NDIS funding for carers and programs, an application for a DSP, accommodation and engagement with community groups, including the applicant’s ethnic group. If the Guardian determines that the applicant requires assistance to manage his financial affairs, it is very likely that the Guardian will apply to VCAT to have an administrator appointed. I am satisfied that the Guardian will endeavour to ensure that all essential support mechanisms are in place before the applicant is released from a SECU.
Ninthly, if the MHT makes a community treatment order, it is very likely that the applicant will receive treatment at a CCU which is similar to the treatment he received in the SECU, save that he will not be detained at the CCU. It is very likely that, while being treated at the CCU, the applicant will be monitored. If he is assessed as posing more than a low risk of danger to himself and the community on the HCR 20 risk assessment tool, it is very likely that an application will be made to the MHT to place him under an inpatient treatment order at a SECU.
Finally, the applicant could be released from a CCU into the community. If he is, he would continue to be subject to a community treatment order under the Victorian Mental Health Act and followed up by a case-manager and psychiatrist. The community treatment order could be varied at any time so that he could be made an inpatient again, including for the administration of depot medication.
I accept that the Victorian Mental Health Act requires that decisions regarding the applicant’s treatment focus not only upon his and the community’s safety but also the least restrictive means of treating him. However, on the basis of Dr Zimmerman’s evidence, I am satisfied that, until the risk of harm to the applicant and the community is reduced to an acceptable level, the least restrictive means of treatment would be treatment in a SECU rather than in the community.
I reject the respondent’s submission that, even with treatment and support, if the applicant is released into the community, the risk of violent offending is sufficiently high to render him a danger to the Australian community. I am satisfied on the evidence that the applicant would not be released into the community unless and until his treating psychiatrists – who are experts in the field – assess the risk of the applicant causing harm to himself or others is at an acceptably low level.
Although members of the MHT may not have had the same engagement with the applicant as Dr Zimmerman, I am satisfied that the decisions they make about the applicant will take into account his history and past experience when released from involuntary treatment regimes, rather than making those decisions in a vacuum. Further, I am satisfied that no decision would be made to release the applicant into the community until his condition was such that he did not pose an unacceptable risk to himself or others, and that there would be no institutional or other pressure for him to be released prior to such time.
I accept the respondent’s submission that the applicant has a history of appearing to be making progress in a hospital environment and lapsing soon after he was returned to immigration detention or, in the case of his residence in the ACT, his release to supported accommodation. However, this history is not a sound basis for predicting the applicant’s behaviour. That is because, while the applicant has been in immigration detention, he has been treated in a hospital inpatient environment for very short periods and with oral antipsychotic medication to stabilise him prior to his return to immigration detention. Upon return to immigration detention, he has relapsed because he could not be involuntarily treated in that environment. The same applies when he was released to supported accommodation in the ACT. In comparison, under the treatment regime proposed by Dr Zimmerman, the applicant would be released from an inpatient hospital environment – where he would be treated involuntarily – to a SECU environment where he would continue to be treated involuntarily until such time (if it ever arrives) as he is assessed to be fit to be released to a CCU.

CONCLUSION

On the basis of the evidence before the Tribunal – particularly the evidence of Dr Zimmerman – and the above analysis, my conclusions may be summarised as follows:
(a)The underlying causes of the applicant’s offending are his drug addiction and his mental illness.
(b)Appropriate medical treatment is available to address these underlying causes of the applicant’s offending.
(c)There are sufficient legal safeguards to ensure that the applicant receives this treatment, including by compulsory administration of treatment pursuant to treatment orders made by the MHT.
(d)The available treatment offers a prospect that the applicant will attain a state of sufficient remission of his mental illness and drug addiction so that if he is released into the community, he will not pose a danger to the community. On this scenario, while the applicant is in the community, he will still be subject to the Victorian Mental Health Act and therefore, if there is a relapse, steps can be taken to detain him either in an inpatient hospital or a SECU.
(e)It is very likely that the applicant will be subject to the Victorian Mental Health Act – and the protections to him and the community afforded by the Act – for the rest of his life.
(f)There are sufficient mechanisms available – particularly through the exercise of the Guardian’s powers – to make appropriate supports available to the applicant if he is released into the community to act as protective factors which reduce the risk of reoffending sufficiently so that he is not a danger to the Australian community.
(g)If the available treatment does not result in the applicant attaining a state of sufficient remission of his mental illness and drug addiction, he will be detained in a SECU indefinitely and thus he would not pose a danger to the Australian community.
(h)Accordingly, I am satisfied on reasonable grounds that the applicant is not a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

DECISION

Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration with a direction that the applicant satisfies the criterion in s 36(1C)(b) of the Migration Act 1958 and that he is not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii).
I certify that the preceding 286 paragraphs are a true copy of the written reasons for the decision of the Hon Justice Kyrou, President
.........................[SGD].........................
Associate:
Dated: 13 November 2023
Dates of hearing:  5 September 2023, 4 and 5 October 2023
Counsel for the Applicant:   Ms EA Bennett SC with Ms JE Apel
Solicitors for the Applicant:  Refugee Legal
Counsel for the Respondent:  Mr G Hill SC with Ms L Mills
Solicitors for the Respondent:  Mills Oakley