XFKR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 95

XFKR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 95 (3 February 2023)
Division:GENERAL DIVISION
File Number: 2021/10294
Re:XFKR
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Deputy President Boyle
Date:3 February 2023
Place:Perth

The decision of the delegate of the respondent made on 21 December 2021 to refuse to grant the applicant a Class XA (Subclass 866) Protection (permanent) visa under s 65 of the Migration Act 1958 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
Catchwords
MIGRATION – s 36(1C) of the Migration Act – refusal to grant a protection visa under s 65 of the Migration Act – whether the applicant has been convicted by final judgment of a particularly serious crime – whether applicant is a danger to the Australia community – domestic violence – alcohol misuse as a risk factor – lack of protective factors against reoffending – applicant would pose a present and serious risk if released into the Australian community – reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Migration Act 1958 (Cth) ss 5(1), 5M, 36(1C), 36(1C)(a), 36(1C)(b), 47, 65, 65(1)(b), 499, 500(1)(c)(i), 501, 501(3A)
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) sch 5, pt 2, item 9
Cases
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
DOB18 v Minister for Home Affairs [2019] FCAFC 63
EN (Serbia) v Secretary of State for the Home Department [2010] QB 633; (2009) EWCA Civ 630
HSCK and Minister for Home Affairs [2019] AATA 4392
HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1967
LKQD v Minister for Immigration [2019] FCA 1591; (2019) 167 ALD 17
MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 119
MVLW and Minister for Immigration and Border Protection [2017] AATA 1557
RWDX and Minister for Home Affairs [2019] AATA 123
Salazar Arbelaez v Minister for Immigration and Ethnic Affairs [1977] AATA 35; (1977) 1 ALD 98
SQDD and Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] AATA 2980
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40; (2012) 200 FCR 174
Vabaza v Minister for Immigration and Multicultural Affairs [1997] FCA 148
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 137; (2020) 280 FCR 535
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) arts 33, 33(2)
Department of Home Affairs, Refugee Law Guidelines (15 November 2022)
Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth)
Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017)
REASONS FOR DECISION
Deputy President Boyle
3 February 2023
THE APPLICATION

This is an application for the review of a decision of a delegate of the Respondent (Minister) made on 21 December 2021 to refuse to grant the applicant a Class XA (Subclass 866) Protection visa (the protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).[1]
[1] R1/7–40.
The protection visa was refused because the delegate of the Minister was not satisfied that the applicant met the criterion in s 36(1C) of the Act for a protection visa. In particular, the delegate was satisfied that the applicant, having been convicted of a “particularly serious crime”, is a danger to the Australian community and, as a consequence, did not satisfy the criterion in s 36(1C)(b) of the Act.
THE ISSUES
The applicant concedes that he has been convicted by a final judgment of a particularly serious crime within the meaning of s 5M of the Act.[2] I find that to be the case in any event. It is not contended by the Minister (and there is no evidence) that the applicant is a danger to Australian security.[3] Accordingly, the only issue for determination is whether the applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Act. The applicant agrees that that is the only issue for determination.[4]
[2] Applicant’s statement of facts, issues and contentions filed 19 April 2022 (applicant’s SFIC) para 21.
[3] The Act s 36(1C)(a).
[4] Applicant’s SFIC para 22.
BACKGROUND
The applicant is a 48-year-old citizen of Myanmar. He arrived in Australia on 20 February 2013, on a Humanitarian visa (Subclass XB-200). He departed Australia on 14 January 2015, returned on 11 February 2015, and has remained in Australia since that date.[5]
[5] R1/8.
On 16 October 2015, the applicant was charged with having committed a number of offences against his wife and children including threats to kill, assaults and intentionally causing injury.
On 13 September 2016, the applicant pleaded guilty to the offences in the Melbourne County Court and was sentenced to 20 months’ imprisonment with a non-parole period of 12 months’ imprisonment as follows:[6]
[6] Note, this table is taken from the Minister’s statement of facts, issues and contentions filed 10 March 2022 (Minister’s SFIC). A copy of the applicant’s criminal record, either from relevant state authorities or the Australian Federal Police/ Australian Criminal Intelligence Commission, was not included in the documents produced under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (R1); see transcript at 5.

Offence

Sentence

Make threat to kill

12 months’ imprisonment (concurrent)

Make threat to kill

Six months’ imprisonment (partly cumulative); four months of the sentence served concurrently

Intentionally cause injury

Six months’ imprisonment (concurrent)

Unlawful assault, common law assault, assault with weapon (four counts)

Three months’ imprisonment on each count; partly cumulative, three months of sentence served concurrently

Common assault

Two months’ imprisonment (concurrent)

Assault with a weapon, common law assault

One month imprisonment on each count (concurrent); total effective sentence of 20 months’ imprisonment

As a result of the above convictions, and because the applicant was serving a sentence of imprisonment on a full-time basis, the applicant’s Humanitarian visa (see [4] above) was cancelled by a delegate of the Minister under s 501(3A) of the Act.
The applicant made representations to the Minister about the revocation of the decision to cancel the applicant’s Humanitarian visa. On 4 September 2017, a delegate of the Minister decided that they were not satisfied that there were grounds to revoke the decision to cancel the applicant’s Humanitarian visa.
The applicant sought review of that decision by the Administrative Appeals Tribunal, and, on 29 November 2017, the Tribunal affirmed the delegate’s decision.[7] Subsequent judicial review proceedings were dismissed.[8]
[7] XFKR and Minister for Immigration and Border Protection [2017] AATA 2385.
[8] XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323: XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 137; (2020) 280 FCR 535.
On 8 April 2021, the applicant applied for a protection visa and subsequently attended two interviews with the Department of Home Affairs on 19 April 2021 and 9 June 2021.
On 21 December 2021, a delegate of the Minister refused to grant the applicant a protection visa on the basis that the applicant failed to satisfy the criterion in s 36(1C) of the Act (see [1] above).
On 27 December 2021, the applicant sought review by the Tribunal of the delegate’s decision to refuse to grant the applicant a protection visa.
LEGISLATIVE FRAMEWORK
Under s 500(1)(c)(i) of the Act, the General Division of the Tribunal has jurisdiction to review a decision to refuse to grant a protection visa relying on s 36(1C) of the Act. I am satisfied that this application for review was made validly and within the prescribed time.
Section 65(1) of the Act relevantly provides:
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Section 36(1C) was inserted into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act) and was intended to codify art 33(2) of the 1951 Convention Relating to the Status of Refugees (Refugees Convention).[9]
[9] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); see See sch 5, pt 2, item 9 of the Amending Act and Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth).
Article 33 of the Refugees Convention is as follows:
Prohibition of expulsion or return (“refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
(Original emphasis.)
Section 36(1C) of the Act provides:
A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(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.
Section 5M of the Act provides:
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.
(Original emphasis.)
Section 5 of the Act defines “serious Australian offence” as follows:
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i)involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
(Original emphasis.)
On 6 September 2017, the Minister for Immigration and Border Protection issued a direction under s 499 of the Act to delegates who consider valid applications for Protection visas under s 47 of the Act and perform functions or exercise powers under s 65 of the Act to grant or refuse to grant Protection visas. This is “Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)” (Direction 75).[10] Direction 75 sets out the following Principles:
1.Australia has a right to determine whether non-citizens who present serious character or security concerns should be granted a visa, including a Protection visa.
2.The Australian community expects that the Australian Government can and should refuse to grant a non-citizen a visa, if they pose a danger to the Australian community having have been convicted of a particularly serious crime in Australia or elsewhere, or present a danger to Australia’s security.
3.It is unacceptable to grant a Protection visa to a non-citizen who is considered to present serious character or security risks to the Australian community.
4.Refusal of a Protection visa because of the specific ineligibility criteria governing such a visa does not extinguish Australia’s non-refoulement obligations in all instances. While Australia may refuse to grant a Protection visa to a person who is a danger to Australia’s security or to the community, this does not necessarily mean that a person should be removed from Australia.
[10] Minister for Immigration and Border Protection (Cth), Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b) (6 September 2017).
Part 2 of Direction 75 explains the sequence that decision-makers are to follow when assessing Protection visa applications which raise character or security concerns. Relevantly, it states:
...
2.Where the Protection visa applicant has met the refugee criteria in section 36(2)(a), then unless the applicant does not meet the criterion in section 36(1B) (in which case the application should be refused on that basis), the decision-maker must consider the Protection visa-specific ineligibility criteria at section 36(1C).
3.Where the Protection visa applicant has met the complementary protection criteria in 36(2)(aa), the decision maker [sic] must consider the Protection visa specific ineligibility criteria at both 36(1C) and 36(2C)(b).
(a) Where the applicant meets both section 36(2)(aa) and section 36(1C), the decision-maker can refuse the application for a Protection visa on the basis of section 36(1C) or section 36(2C)(b), noting that the refused applicant will still engage Australia’s non-refoulement obligations while a real risk of the kind mentioned in section 36(2)(aa) exists.
4.If the decision-maker finds that section 36(1C) or section 36(2C)(b) ineligibility criteria do not apply to the applicant, the decision-maker may consider whether any residual character concerns justify referral of the application for consideration under section 501.
5.The decision-maker is to take account of the relevant guidance provided in the Refugee Law Guidelines on assessing the matters in section 36(1C) and section 36(2C)(b).
The Refugee Law Guidelines[11] at para 3.26.3 relevantly provide:
[11] Department of Home Affairs, Refugee Law Guidelines (15 November 2022).
Danger to the community
The Australian courts have determined that the approach to the assessment of whether an applicant, having been convicted of a particularly serous crime, is a danger to the community has two distinct considerations:
1.whether, at some time in the past, the applicant has been convicted by a final judgment of a particularly serious crime (see 3.26.1 Convicted by a final judgment and 3.26.2 Particularly serious crime), and
2.whether the applicant is, at the time of the protection visa decision and into the future, a danger to the Australian community.[12]
[12] Citing, amongst other cases, DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [75] and [88].
In other words, the conviction by a final judgment of a particularly serious crime alone is not sufficient to say that the applicant is a danger to the community. Nor is it sufficient to find that the applicant was once a danger. Rather, decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community.
Since the assessment of danger to the community is a consideration separate from the commission of a particularly serious crime, there is no ‘category’ of offending that will automatically result in a person being found to be a danger to the community. The assessment whether an individual is a danger to the community is one of ‘fact and degree’ to be ‘determined in the circumstances of a particular case. In WKCG and Minister for Immigration and Citizenship[13] (WKCG), the Tribunal listed factors that assist in assessing whether a person is a danger to a member or members of the community:
[13] [2009] AATA 512.
Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed.
Those relevant considerations were described as pertinent by Logan J in DOB18…
In forming a view of the risk of recidivism, re-offending or relapse, decision makers can consider the factors listed in WKCG, such as mitigating and aggravating circumstances during commission of the offences and the totality of the applicant’s criminal record. As noted in Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs:
… The rehabilitation of a migrant who has suffered a conviction is not only in his interests - it is in the interests of the community of which he is a member. In the present case, the prospect of rehabilitation is the principal issue …
…
Rehabilitation is never certain. One cannot predicate of an offender that he will not fall again, whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk …
(Footnotes amended.)
THE HEARING
The application was heard on 19 May 2022. The applicant represented himself and the Minister was represented by Mr J Papalia of the Australian Government Solicitor. The applicant was the only witness to give evidence at the hearing. The applicant’s evidence was largely given through an interpreter. The following documents were admitted into evidence:
(a)The applicant’s SFIC (A1);
(b)statement of the applicant dated 18 April 2022 (A2);
(c)statement of the applicant’s wife dated 16 April 2022 (A3);
(d)statement of the applicant’s son, CZ, dated 16 April 2022 (A4);
(e)statement of the applicant’s son, LZ, dated 16 April 2022 (A5);
(f)documents filed by the Minister pursuant to s 37 of the AAT Act on 2 February 2022 (R1); and
(g)The Minister’s SFIC (R2).
THE PARTIES’ CASES
The applicant
The applicant’s SFIC stated the applicant’s case to be as follows:
(a)The applicant travelled to Australia with his wife and two of his children, who held the same Humanitarian (Class XB) (Subclass 200) visas.
(b)On 22 February 2017 the applicant completed a drug and alcohol course in Middleton Prison.
(c)On 13 June 2017, the applicant was released from prison and detained in immigration detention where he has remained to this time.
(d)While in Yongah Hill Immigration Detention Centre, the applicant has undertaken or been engaged in the following courses:
(i)On 25 February 2020, 5 May 2020, and 9 June 2020, two-hour workshops on parenting skills;
(ii)from March to July 2020, weekly men’s group and workshops facilitated by Lifeskills Australia; and
(iii)on 5 May 2020, 26 May 2020, 23 June 2020 and 7 July 2020, two-hour sessions of an anger management course run by Ngala Dads WA.
(e)In or around August 2020 the applicant was relocated to the Christmas Island Immigration Detention Centre, after which he did not have access to further counselling or skills development workshops.
(f)The applicant accepts that he has been convicted of a “particularly serious offence” as defined by ss 5M and 5(1) of the Act. Although the applicant was not sentenced to the maximum terms of detention for the offences of which he was convicted, he accepts that some of the offences carried a maximum term of imprisonment of over three years, and that those offences are therefore within the definition of a “serious Australian offence” in s 5(1) of the Act and as a result are “particularly serious offences” under s 5M of the Act.
(g)The applicant accepts that the list of considerations in WKCG is not exhaustive, but that it has been cited with approval by the Federal Court of Australia.
(h)The applicant contends that “danger” is not synonymous with “risk” – it requires a “present and serious risk”[14] The applicant contends that he no longer poses any danger to his family or the Australian community, as any risk of him reoffending is remote.
[14] Citing DOB18 at [72], [83] and [87].

The applicant’s SFIC then addressed the considerations identified by Deputy President Tamberlin in WKCG as being relevant to the determination of the issue of whether an applicant is a danger to the Australian community as follows:
The seriousness and nature of the crimes committed
(a)The applicant accepts that the crimes he committed were serious and feels deep remorse and regret for what he did.
The length of the sentence imposed
(b)The applicant was sentenced to 20 months’ imprisonment with a non-parole period of 12 months. The potential maximum cumulative sentence with the applicant faced was 10 years.
(c)The sentencing judge, Judge Gamble, reduced the applicant’s sentence because he entered an early guilty plea.
(d)The applicant contends that this should not weigh against him, as it demonstrates the applicant’s remorse and willingness to accept responsibility for his actions.
Mitigating or aggravating circumstances
(e)Judge Gamble considered the applicant’s early guilty plea and lack of any previous criminal history to be mitigating factors. The applicant cited the relevant passage from Judge Gamble’s sentencing remarks.
(f)Judge Gamble further considered the support of the applicant’s wife and children to be a relevant factor in mitigation, as his Honour found that it would affect the applicant’s prospects of rehabilitation.
(g)The applicant contended that the evidence of his wife and children should still be considered relevant mitigating factors. The issues which Judge Gamble raised about the victim impact statements of the applicant’s wife and children are explicable on the basis of the applicant’s family’s limited understanding of the process and relatively short period of time between the offending and their evidence “allowing for growth and reflection”. Significant weight should be attached to the evidence of the applicant’s wife and children in their statements to the Tribunal and their oral evidence.
The criminal record in total – including the extent and nature of any prior convictions and the period over which they took place
(h)The applicant has been convicted of offences which took place on three occasions. Prior to that the applicant had no criminal convictions. The period of the applicant’s life in which he offended was out of character. He accepts that during the relevant period of the offences he was in a "downward spiral”.
The risk of re-offending and recidivism; The likelihood of relapsing into crime and any prospects of rehabilitation
(i)Since the time of the offences, the applicant has attended courses directed at teaching him anger management, stress management skills, relationship skills, overcoming alcohol addiction/dependence and healthy expressions of masculinity.
(j)The forensic psychologist who assessed the applicant for his sentencing report, found that the applicant “expressed a genuine desire to receive appropriate treatment relating to alcohol and anger management, with a preference for one-on-one counselling”. The applicant has learnt a lot from these courses, which has significantly improved his insight and his relationship with his family.
(k)The suggestion that the applicant’s command of English was not sufficient for him to have benefited from the courses that he has undertaken is incorrect. He has studied English then started a social science course at university.
(l)Dr Gee’s pre-sentence report that Judge Gamble referred to in sentencing the applicant was specific to that point in time, which was some six years and nine months ago.[15] Dr Gee assessed the applicant as at least a low risk of future general violence and at most a moderate risk of intimate partner violence.
(m)Judge Gamble assessed the applicant as having reasonable prospects of success in rehabilitation. He has now undertaken various programs, has managed to overcome his alcohol dependence and has learnt to manage his emotions and heal his relationship with his family.
(n)As a result, the applicant does not pose a risk of harm to his family or anyone else, and he is thus not a danger to the Australian community or any part of it.
[15] At the time the applicant filed his SFIC.
The Minister
The Minister’s SFIC contended as follows:
(a)Considering whether the applicant poses a danger to the Australian community does not involve the exercise of a discretionary power (unlike the power provided for under s 501 of the Act).
(b)If the Tribunal considered the applicant to be a danger to the community, it must affirm the delegate’s decision.[16] The Tribunal cannot balance the danger against the possible harm that an applicant may suffer if returned to their receiving country.[17]
[16] Citing the Act s 65(1)(b); MVLW and Minister for Immigration and Border Protection [2017] AATA 1557 at [29]–[32].
[17] Citing SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40; (2012) 200 FCR 174 at [27].
(c)The Minister cites Vabaza v Minister for Immigration and Multicultural Affairs[18] as affirming the decision of Brennan J, sitting as the President of the Tribunal, in Salazar Arbelaez v Minister for Immigration and Ethnic Affairs[19] at 100:
[18] [1997] FCA 148.
[19] [1977] AATA 35; (1977) 1 ALD 98.
The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.
(d)The question of whether an applicant is a “danger to the Australian community” is one of fact and degree. The Minister refers to the decision of Deputy President Tamberlin in WKCG and the comments of Logan J in DOB18 (at [78]), that the matters canvassed by the Tribunal in WKCG are “pertinent”.
(e)The Minister cites the reference by Logan J in DOB18 to the decision of the Court of Appeal for England and Wales in EN (Serbia) v Secretary of State for the Home Department[20] and commentary from the UNHCR and academics in the field at [81]–[83] and [85].
(f)To the extent that the comments made by Logan J impose a higher standard than that set out in WKCG, the standard set by Logan J in DOB18 is met in this case.
(g)In LKQD v Minister for Immigration,[21] Jackson J held (at [62]) that the standard does not rise to the level of “very serious danger”. His Honour expressly endorsed the remarks of Flick J in the Full Court of the Federal Court decision of SZOQQ that there is no balancing required between the undesirability of refoulement and the danger to the Australian community that an applicant may pose.
(h)It is clear that the applicant has been convicted by final judgment of a particularly serious crime. The “real issue” for determination is whether the applicant is a danger to the Australian community for the purposes of s 36(1C)(b) of the Act.
(i)The applicant’s offences involved violence against his wife and children. In particular, the applicant used a pair of scissors to inflict injury on his wife. He also used a homemade garrotte[22] to heighten the level of fear occasioned by the threat to kill his wife. Some of the offending was witnessed by his children, which the sentencing judge noted was likely to leave a lasting legacy.
(j)While the applicant received his convictions on a single date, they cover a period of offending between December 2014 and October 2015. There is also evidence that prior violent conduct occurred in 2012 when the applicant and his family resided in Malaysia.
(k)Even though the applicant may have taken some steps to address his offending behaviour (e.g. participating in men’s groups, anger management classes and workshops focusing on parenting and life skills), this has not yet been tested in the community.
(l)The sentencing judge was of the view that the applicant was not fully remorseful immediately after each of the offending episodes and that that remained the case when he was interviewed by the police. His Honour also noted that the applicant seemed to have largely, if not entirely, blamed his consumption of alcohol for his actions, which was not a full, personal and legal acceptance for his criminal wrongdoing. His Honour also referred to a number of previous family violence incidents relating to the applicant’s wife, including serious assaults which had not been reported to the police and threats he made to his children.
(m)The pre-sentence report noted that, whilst alcohol was a contributing factor in the applicant’s offending, his attempts to blame it for all of his aberrant behaviour demonstrated an inability or unwillingness to take personal responsibility. The report also assessed the applicant to be a medium risk of re-offending, to have a high level of need in relation to his alcohol and marital and domestic situation, and that the applicant presented a significant risk to his family if he were to lapse back into alcohol abuse.
(n)There is a record of abusive/aggressive behaviour taking place on 6 March 2019 while the applicant was in detention in Melbourne. This incident was reported to have occurred in the absence of any consumption of alcohol by the applicant.
[20] [2010] QB 633; (2009) EWCA Civ 630.
[21] [2019] FCA 1591; (2019) 167 ALD 17.
[22] A method of killing, originally by means of an instrument causing death by strangulation, later by one injuring the spinal column at the base of the brain, formerly used as a mode of capital punishment.
CONSIDERATION
As both parties noted, there are two leading, and possibly conflicting, authorities on the interpretation of s 36(1C)(b) of the Act, namely WKCG and DOB18. Deputy President Tamberlin’s statements in WKCG are often cited as the preferred statement of the meaning of “danger to the Australian community”. I note that the Refugee Law Guidelines now refer to both WKCG and DOB18. Paragraph 3.26.3 of the Refugee Law Guidelines, citing [88] of DOB18, directs that “… decision makers must determine whether the applicant is, at ‘present and for the indefinite future’, a danger to the Australian community”. The factors set out in WKCG (see [22] above) for making that determination are also replicated in general terms in the Refugee Law Guidelines. Deputy President Tamberlin said in WKCG:
[25] The question of whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
[26] Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
...
[31] The language of the Article directs attention to the expression “danger”. This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or [more] members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J pointed out (Salazar at ALR 38; ALD 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable”.
Until the judgment in DOB18, the legal position was reasonably clear. As Logan J noted at [76] in DOB18:
In Australia, an influential case in relation to the subject of “danger” as used in Art 33(2) of the Refugee Convention and now in s 36(1C) of the Act has proved to be the Administrative Appeals Tribunal case, WKCG...
As his Honour noted, various aspects of Deputy President Tamberlin’s approach in WKCG have been followed in subsequent cases. At [77] of DOB18 Logan J noted that:
SZOQQ was determined by the Administrative Appeals Tribunal on the basis, promoted by the parties, that WKCG was correctly decided, as it was before the Full Court. But the Full Court expressly left open the correctness of WKCG.
At [78] of DOB18 Logan J observed that:
... it be accepted that considerations to which the Deputy President adverts at [26] are pertinent. In EWG17 v Minister for Immigration and Border Protection [2018] FCA 1536 (EWG17), Collier J referred to WKCG with apparent approval but her Honour’s approval (at [52]) expressly related to the proposition (found in WKCG at [25]), that “danger” must be determined in the circumstances of a given case.
(Original emphasis.)
At [80] of DOB18, Logan J then noted:
My own further researches have disclosed that, also last year, WKCG was additionally referred to in this Court by Charlesworth J in AFY18 v Minister for Home Affairs [2018] FCA 1566 and by Siopis J in Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27. In neither case was there any need to consider the correctness of all that was said in WKCG about “danger”.
As alluded to by Logan J, the Tribunal has, on numerous occasions, adopted the approach taken by Deputy President Tamberlin in WKCG.[23] As noted above, that approach is also adopted in the Refugee Law Guidelines.
[23] See RWDX and Minister for Home Affairs [2019] AATA 123; MVLW; HSCK and Minister for Home Affairs [2019] AATA 4392; SQDD and Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2021] AATA 2980; MQHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 119.
I read Logan J’s judgment as saying that the particular aspect of Deputy President Tamberlin’s decision with which his Honour had an issue, is the Deputy President’s test for “danger” as set out in [31] of his decision, namely that “... it will be sufficient if there is a real or significant risk or possibility of harm ... It is not necessary to establish that there is a probability of a real and immediate danger of present harm”. (Original emphasis.)
Logan J’s view at [83] and [85] of his judgment was that:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that [sic] just “risk”.
...
Within the Act, s 5H(2) in the definition of “refugee” can be seen to be responsive to Art 1F in the same way that s 36(1C) can be seen to be responsive to Art 33(2). In Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54; [2013] 1 AC 745, at [16], the United Kingdom’s Supreme Court held that Art 1F of the Refugee Convention should be interpreted narrowly and restrictively, because of the potential consequences of excluding someone from the application of that convention. That same “potential consequences” rationale should, in my view, inform the construction of s 36(1C) of the Act.
In HYTB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[24] the Tribunal did not consider that there was any necessary inconsistency between WKCG and DOB18 as WKCG did not equate “danger” to mere “risk”, but rather it would be considered sufficient for “danger” to be established if there is a real or significant risk or possibility of harm to one or more members of the Australian community. I agree with that assessment.
[24] [2020] AATA 1967.
In LKQD Jackson J held that the standard does not rise to the level of “very serious danger”. In relation to DOB18, Jackson J noted at [62]:
To the extent that Art 33(2) is an exception to the principle of refoulement, s 36(1C) can similarly be characterised as an exception to the principles of protection reflected in s 36(2). None of that requires any departure from the explanation of the ordinary meaning of s 36(1C) which Deputy President Tamberlin gave in WKCG. I note that Logan J, sitting on the Full Court, has recently held that, read in context, ‘danger’ in s 36(1C) means ‘present and serious risk’ and has suggested that may be inconsistent with WKCG: DOB18 v Minister for Home Affairs [2019] FCAFC 63 at [83]. But even the standard suggested by his Honour does not rise to the level of ‘very serious danger’ urged on behalf of the applicant.
In relation to whether consideration of s 36(1C) of the Act requires a balancing exercise, Jackson J at [63] of his decision in LKQD found:
... the decision in SZOQQ is authority for the proposition that Art 33 requires no balancing between the undesirability of refoulement and the danger to the Australian community that an applicant may pose. SZOQQ was overturned in the High Court, but on a different ground that had not been put to the Full Court: see SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12; (2013) 251 CLR 577 at [16]. The Tribunal in the present case committed no error in following the Full Court in SZOQQ. The published opinion of the UNHCR in the note referred to cannot change that.
I am satisfied that the relevant considerations in assessing whether the applicant is a danger to the community are those identified in [26] of Deputy President Tamberlin’s decision in WKCG (see [27] above), which are adopted by the Refugee Law Guidelines and referred to in DOB18 as being pertinent (see [30] above). Each of those factors is considered below. I also address Logan J’s interpretation of the meaning of “danger to the Australian community” in [83] of his judgment in DOB18 (see [34] above).
Nature and seriousness of the crimes committed
As noted above, the applicant in his SFIC conceded that “crimes that he committed were serious”. Such a concession is warranted. The circumstances of the offences and other relevant considerations were set out in Judge Gamble’s sentencing remarks as follows:
1.… you have pleaded guilty to a six charge indictment. Those offences and their respective maximum penalties, are as follows:
2.Charge 1, intentionally cause injury, ten years' imprisonment;
3.Charges 2, 4 and 5, common assault, five years' imprisonment;
4.Charges 3 and 6, make threat to kill, ten years' imprisonment.
5.You have also consented to this court hearing six related summary offences, to which you have also pleaded guilty.
6.Those related summary offences and their respective maximum penalties are as follows:
7.Summary Charge 12, unlawful assault, three months' imprisonment, or a fine of 15 penalty units;
8.Summary Charges 15, 17, 19, 21 and 23, aggravated assault, two years' imprisonment.
9.All of the offences on the indictment and two of the related summary offences were committed against your wife, while the remaining four related summary offences were committed against the four children from that relationship.
…
12.There have been a number of previous family violence incidents relating to your wife, which have included serious assaults that have not been reported to the police. The children have also been threatened during a number of these incidents and have witnessed many of the assaults on their mother. Your wife cannot remember specific dates of alf of the times that she has been threatened, assaulted and injured.
13.In 2012, while the family were still residing in Malaysia, you threatened to throw your wife off the 17th floor balcony of the apartment you were then living in. Having been dragged to the balcony, she grabbed the railings and pleaded for forgiveness. At that point, you stopped. After returning inside, you then became enraged again. You took that rage out on your wife by punching her in the face and head. You then threated to burn down the apartment, dragged her to the stove by her hair and then tried to light the gas. Unsurprisingly, your wife was in fear for her life.
…
15.… in 2014, the family moved to an address in [omitted], you became increasingly jealous and resumed drinking alcohol, after having abstained for some time previously.
16.On one evening in 2014, your wife was asleep with two of your children. You came into the room and woke her up. You then commenced to interrogate her about her ex-boyfriend and an argument developed. You then went to the kitchen and obtained a pair of scissors. On returning to the bedroom, you used them to stab your wife in the knee as she was lying on the bed next to your youngest son. It caused a quite deep, one inch wound which bled profusely.
17.However, that did not deter you from continuing with the assault on your wife, or cause you to pause and reflect on your behaviour. Rather than desist, you then punched your wife to the head a few times with your fists. She attempted to cover up as best she could and told you to stop, which you did. It is the combination of those physical assaults on your wife which form the basis for the offence of intentionally cause injury alleged in Charge 1 on the indictment. I note that your wife did not seek any medical attention for the wound to her knee for fear of being asked about how she sustained the injury. She has been left with a scar to her knee.
18.On a separate occasion in December of 2014, you again became angry at your wife and decided to wake her up at about 1 am, in order to have sex with her. As she was fully entitled to do, your wife indicated that she was too tired. That simple and polite response on her part enraged you. You responded, not with words, but with significant violence. Using both fists you punched her numerous times to the back of her head and to both eyes. She experienced significant pain as a result. Again she felt compelled to bring an end to the assault by apologising to you, her husband. This assault forms the basis for the offence of unlawful assault alleged in Summary Charge 12.
19.By 14 October of 2015, the family were living in a house in [omitted]. On that date you were drinking alcohol. At about 11.30 pm, you entered the bedroom and started interrogating your wife about a boyfriend that she had when she was a teenager. In response, she told you that she wanted to sleep and then turned her back on you. You immediately became angry and responded with violence by punching her to the back of her neck. It is this act on your part that forms the basis for the common law assault offence alleged in Charge 2 on the indictment. During this incident, you also said to your wife, "You cannot lie to me or I’ll kill you”. As she feared for her life and feared being further punched, she felt too afraid to tell you to leave her alone. Throughout the night you prevented her from sleeping by almost continuously pushing her feet. By morning she felt exhausted and remained fearful of you.
20.At approximately 6 pm on the following day, 15 October 2015, you went and purchased alcohol. When the children saw you return with that alcohol and start drinking it, they retreated to their bedrooms in fear. At about 9 pm, you called your oldest son into the lounge room and directed him to sit on the floor. You then did likewise in relation to the other three children. All of those children were sitting within arm's length of you, their father. Your wife had a full view of what was occurring in the lounge room from where she was located in the bedroom.
21.While your children dutifully sat near you, you used a knife to stab and carve crosses into the floorboards. As you did so, you said to your eldest son, "[omitted], do you want to die?" It is this conduct on your part that forms the basis for the offence of aggravated assault with a weapon alleged in Summary Charge 15.
22.You then said to the other three children "Are you scared of me? Who am I? They replied "Daddy". You then pointed the knife at each of them and said "Are you scared of dying?" You then asked them whether they were listening to you, to which they replied. "Yes". You then said, "I'm not scared of killing people''. Your actions in pointing the knife at your three youngest children, in the circumstances that you did, forms the basis for the remaining three offences of aggravated assault with a weapon, Summary Charges 17, 19 and 21 respectively.
23.Following that, you told the children to stand up and cross their arms, which they did. They then obeyed you when you told them to go to their bedrooms. Shortly afterwards you called them back to the lounge room. Despite being terrified, they did so.
24.At that point, once you had all of the children assembled before you, you called your wife to the room and directed her to sit on the floor next to the children. She duly complied. Almost immediately you told her to go and get ''the big knife'' from the kitchen. She did so and handed it to you on her return. You then asked her, "Are you scared of me? Do you want to die?" As she moved closer to you at your request, you grabbed her by the back of the neck and pulled her closer. You then pointed the knife at the back of her neck. She could feel the blade against her skin. She felt scared. It Is this use of the knife against your wife, in those circumstances, that forms the basis for the offence of threat to kill alleged in Charge 3 on the indictment.
25.Your wife begged you not to do what you were doing. As she went to stand up, you directed her to sit down, which she did. You then made the children sit in front of you. As you pointed the knife at each of them in turn, you asked, in reference to what you had just done to their mother, "Did you see this? Are you going to listen to me? Your dad is not scared to kill someone". Unsurprisingly, all of the children were crying and shaking in fear as a result of what they had been subjected to and witnessed. Despite being told to return to their rooms by their father, the youngest child attempted to stay with his mother. You prevented him from doing so by insisting that he return to his bedroom.
26.Once the children had left, you then took the opportunity to launch a physical assault on your wife. You punched her to the back of her head and to her chest with sufficient force to break the skin. You also punched her to the back several times before making her follow you into the bedroom. This part of your assault on your wife forms the basis for the offence of common law assault alleged in Charge 4 on the indictment.
27.Under the guise of needing to go to the toilet, your wife sneaked into the children's bedroom and told them to leave the house. On being called back to the bedroom by you, she asked you to get her a glass of water, which you did. While you were gone she ran to a neighbour's house, only to return shortly afterwards because she believed the children were still in the house. As it turned out, they had already escaped by jumping out of a window.
28.You then began yelling at your wife, telling her that she had brought shame on you. A leader of the local Burmese community then attended the house with no success. When you angrily threatened to kill your wife, she ran away. Undeterred, you chased her whilst holding a pair of scissors. You only desisted after you were yelled at by one of the neighbours. At that point, you got into your car and drove away. It is this incident involving the scissors which forms the basis for the offence of aggravated assault with a weapon alleged in Summary Charge 23.
29.When they had fled, the children ran to the [omitted] home of [Mr and Ms C], who were friends of your family. You arrived at that address at about 10 pm, smelling strongly of alcohol. You told Ms [C] that your wife was no good and you would beat her. You were then overheard calling your wife and telling her that you would beat her. At that point, Ms [C] put the children to bed.
30.Then you, accompanied by Ms [C] and her son returned to your home in [omitted] to get your wife and bring her back to Ms [C]'s home. Once you all returned to that home, you threatened to beat your wife in front of the [C] family. You then picked up a tin can and threw it at your wife. When you then tried to punch her, you were restrained by two members of that family. Undeterred, you continually threatened to beat your wife. You then humiliated her by demanding that she remove her clothes. When she commenced to do so, the members of that family looked the other way out of respect. Then you attempted to kick and hit your wife. You were prevented from doing so by the intervention of others. It is this combination of conduct towards your wife, after first returning to the [C] family's home that forms the basis for the offence of common law assault alleged against you in Charge 5 on the indictment.
…
32.At about 6:00 pm on the following day, 16 October 2015, you returned to the [C] family's home and banged on the door, while demanding that it be opened. You threatened to kill your wife unless you were let in. Too scared to do so, your wife called the police instead. For whatever reason, members of the [C] family opened the door for you. When you entered, it was apparent to your wife that you were in possession of a home-made garrotte, which had been fashioned from a knife handle and a guitar string. You immediately removed it from your own neck and showed it to her. As you did so, you said, “This is the string that I'm going to use to strangle you". After then handing your mobile phone to her and telling her to ring the police, you said to her, "I'm going to kill you anyway. One day I'm going to cut your neck and drink your blood. I'm not scared to go to gaol". It is this threat, uttered in those circumstances, that forms the basis for the offence of threat to kill alleged in Charge 6 on the indictment.
33.Having threatened your wife in that way, you then tried to place the garrotte around your wife's neck. You were only prevented from successfully doing so by the intervention of two members of the [C] household. Your actions caused your wife to fear for her life. In short, she was terrified that you were going to kill her.
34.… You were taken back to Box Hill Police Station where you were interviewed. During that interview, you said, inter alia, the following:
·     The stabbing of your wife with the scissors in 2014 was an accident. You had apologised to her as soon as you saw all the blood. You admitted to having punched her, but qualified it by claiming that you did not use your full fist and that she had been "talking too much";
·     You could not remember punching your wife in December of 2014, but indicated that you did get jealous sometimes;
·     You denied punching her to the back of her neck on 14 October 2015 and claimed that all you had done was pull her back;
·     ln relation to the incident involving the knife and the children sitting on the floor, of 15 October 2015, you professed to have made a mistake while you were a little bit drunk. You could not recall exactly what you had said on that occasion, nor could you recall holding a knife to your wife's neck or punching her to the head and chest;
·     You did, however, recall the leader of the local Burmese community attending at the house on that night. You professed to have no memory of then chasing your wife while holding a pair of scissors, although you remembered driving to the [C] family home and finding your children and then returning to collect your wife;
·     In respect to what occurred once you were all back at the [C] home, you told police that you remembered throwing the can and scolding her for bringing shame on the family by going to a neighbour. You denied trying to punch your wife, adding that you had just been pretending to do so. You admitted to having told your wife to undress and said that you did so because she had embarrassed you;
·     You admitted leaving and then returning early the following morning and threatening to kill your wife unless the door was opened. You claimed that the home-made garrotte was in fact a necklace that you were wearing, but never took off. You were unsure whether you had said that you would use it to strangle your wife. You admitted handing your phone to your wife, but claimed that you did not know if you had then threatened her in the way alleged. You explained your behaviour on that occasion by saying that you were very embarrassed and cross as a result of your wife's behaviour;
·     You told police that you were really sorry and blamed your consumption of alcohol for any threats that you had made to your wife and children. You described such behaviour on your part as being ''out of character".

The applicant’s assessment of his offending as serious, is, in my view, an underestimation. The offences as described by Judge Gamble were very serious. The applicant’s offending was extremely violent, prolonged, and repeatedly committed against family members who were not in a position to defend themselves. They were entitled to expect the applicant’s love and protection, not sustained vicious physical and psychological attacks. Given the violent attack on the applicant’s wife in Malaysia in 2012 and Judge Gamble’s reference to other unreported assaults on the applicant’s wife, it also seems clear that the incidents of extreme violence were not isolated.
The applicant was cross-examined on his offending. He admitted having assaulted his wife in Malaysia in 2012 as described by Judge Gamble in para 13 of his sentencing remarks (see [39] above).[25]
[25] Transcript at 40.
The applicant was then asked about Judge Gamble’s observation at para 12 of his sentencing remarks that the applicant had assaulted his wife in Australia on a number of occasions, but that those assaults had not been reported to police. Initially the applicant denied that he had assaulted his wife in Australia, other than the assaults committed in December 2014 and October 2015 which gave rise to the 12 convictions in September 2016. Under further questioning by the Minister’s counsel and me, the applicant conceded that he had, as Judge Gamble said, assaulted and threatened his wife on numerous occasions, some of which were witnessed by his children.[26] The applicant’s evidence was that he could not remember how many times he had assaulted his wife because he was too drunk to remember the assaults, and relied on his wife to tell him about the assaults later when he was sober.[27]
[26] Transcript at 50.
[27] Transcript at 51.
The applicant was then asked about the incident in December 2014 when he stabbed his wife in the knee with a pair of scissors. His evidence was that he could remember that incident as he was not “too drunk”.[28] He claimed that he had accidently stabbed his wife and that he had then tried to treat his wife’s wound. Counsel for the Minister then read paras 16 and 17 of Judge Gamble’s sentencing remarks (see [39] above) to the applicant. The applicant continued to deny that he intended to stab his wife and continued to assert that, having accidently stabbed her, he tried to bandage the wound. Both of those claims by the applicant are at odds with Judge Gamble’s sentencing remarks. Like Judge Gamble, I do not accept the applicant’s version of that incident.
[28] Transcript at 52.
The applicant was then asked about the incident involving the threat to garrotte his wife, referred to in para 32 of Judge Gamble’s sentencing remarks. The applicant’s evidence was that he had made the garrotte in the morning of the day in which he threatened his wife. Although he had been drinking the evening before, when he assaulted and threatened his wife and children,[29] he had not been drinking when he made the garotte the following morning. His evidence relating to the threats that he made to his wife at the house of Mr and Ms C on 16 October 2015 described by Judge Gamble in paras 32 and 33 of his sentencing remarks, was that he could only remember parts of what happened.[30] Asked by counsel to say what happened on 16 October 2015 when he went to the friends’ house where his wife was, his evidence was:
So, with the garotte I went to the family member home, and I ask them why you try to make them ashamed - or make me ashamed - so, I asked them. And after a while the police came.[31]
[29] R1/131–3: Judge Gamble’s sentencing remarks paras 20–9.
[30] Transcript at 55.
[31] Transcript at 55.
The applicant’s description of what happened on 16 October 2015 significantly downplays the seriousness of the offence that the applicant committed on that day. He was sentenced to 12 months’ imprisonment on that charge of threat to kill.[32]
[32] R1/149: Judge Gamble’s sentencing remarks para 107.
Judge Gamble summarised the seriousness of the applicant’s offending as follows:
84. On any view, the offending engaged in by you towards your wife and children was disturbing and very serious. They ought to have been able to look to you as their wife and father respectively, for protection and guidance, not as someone who brought great fear and uncertainty into the family.
85. These offences represented a serious breach of the trust that each of the victims placed in you. They were each very vulnerable and that fact must have been patently obvious to you.
86. There are a number of aggravating features to your offending. The use of a weapon in the form of the pair of scissors to inflict the injury on your wife. The fact that some of your offending against your wife was witnessed by one or more of the children. The fact that your offending against the children was undertaken either in the view of your wife or in her immediate presence. The use of a homemade garrotte, a frightening looking weapon, to reinforce and heighten the level of fear occasioned by the threat to kill your wife. The fact that some of your offending against your wife occurred in humiliating circumstances and in the presence of other people outside the family unit.[33]
[33] R1/146.
I assess the applicant’s offending as very serious.
The length of the sentences imposed
The applicant received the following sentences of imprisonment on the 12 charges:
(a)Charge 1: intentionally casing injury – six months.
(b)Charge 2: common assault – one month.
(c)Charge 3: threat to kill – six months.
(d)Charge 4: common assault – three months.
(e)Charge 5: common assault – two months.
(f)Charge 6: threat to kill – 12 months.
(g)Charge 12: unlawful assault – three months.
(h)Charges 15, 17, 18 and 21: aggravated assault with a weapon – three months on each charge.
(i)Charge 23: aggravated assault with a weapon – one month.
Charge 6 was treated as the base sentence and with concurrency, the total effective sentence was 20 months’ imprisonment.
While the sentences imposed in respect of each of the 12 charges were, in each case, towards the lower end of the range, the sentences and the effective cumulative sentence of 20 months’ imprisonment is substantial and is indicative of the seriousness of the offending as a whole.
Mitigating or aggravating factors
In sentencing the applicant, Judge Gamble made observations under the heading “Matters in mitigation”. His Honour’s comments related to matters in mitigation of the applicant’s criminal culpability for the purposes of sentencing and other matters to be taken into account under the sentencing laws. The exercise that his Honour was engaged in was a different exercise to that which I have to undertake in determining whether the applicant is a danger to the Australian community. That is not to say, however, that his Honour’s observations are not relevant in assessing whether the applicant is a danger to the Australian community.
The first matter noted by Judge Gamble was that the applicant had pleaded guilty. While this is a matter that is to be taken into account under sentencing laws, it is also a matter that may be relevant to the exercise that I have to undertake as being indicative of an acceptance of responsibility. The second matter in mitigation noted by Judge Gamble was the applicant’s lack of prior criminal record. Again, that is a matter that is relevant to the assessment of the risk that the applicant poses and whether he is a danger to the Australian community.
Judge Gamble remarked that the applicant was “remorseful to some degree” but that “the finding of remorse comes with some qualifications”.[34] His Honour observed that:
77. … You were certainly not fully remorseful immediately after each of these offending episodes and that remained the case when you were interviewed by the police. It is difficult to see how your lack of memory could have been as extensive as you professed it to be and to the extent that you admitted wrongdoing, you downplayed the nature and extent of it on occasions. You also seemed to have largely, if not entirely, blamed your consumption of alcohol for whatever you did do. It was hardly a full personal and legal acceptance for your criminal wrongdoing.
78. Further, I am unable to accept your characterisation of your behaviour to police as "out of character", given the previous and uncharged conduct you had engaged in towards your wife and family. And it would seem that the balcony incident involving your wife occurred during a period when you were not drinking alcohol.
[34] R1/144.
His Honour also considered the applicant’s desire to address the underlying cause of his offending and the continued support of the applicant’s wife and children as relevant matters in mitigation “as it affects [the applicant’s] prospects of rehabilitation”.[35] The aggravating factors are well summarised by Judge Gamble at para 86 of his sentencing remarks quoted at [46] above.
[35] R1/145.
Risk of re-offending/likelihood of relapsing into crime and prospects of rehabilitation
Deputy President Tamberlin at [26] and [27] of WKCG observed:
… The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs [1911] ArgusLawRp 112; (1977) 18 ALR 36; 1 ALD 98 (Salazar), Brennan J said at ALR 38 ALD 100:
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular applicant in the particular circumstances of his case is at an unacceptable level of risk.
In his sentencing remarks, Judge Gamble referred to a report by forensic psychologist, Dr Dion Gee, dated 14 July 2016[36] and to a pre-sentence report dated 11 August 2016. Unfortunately, neither of those reports was before me. Further, the documents lodged by the Minister under s 37 of the AAT Act did not include any of the usual assessments, records and reports prepared by corrective services authorities or the Department (see also footnote to [6] in relation to lack of criminal record). The Minister’s counsel was unable to explain why none of these documents had been provided or summonsed.[37] I am therefore reliant on what Judge Gamble said about these reports in his sentencing remarks which, relevantly, was as follows:
[36] R1/140.
[37] Transcript at 22.
Dr Gee
58. Dr Gee conducted a two-hour assessment of you at the Melbourne Assessment Prison on 5 July. He noted that you continued to report memory problems from the relevant period and indicated that you act "out of character'' when under the influence of alcohol. In his view, you expressed a genuine desire to receive appropriate treatment relating to alcohol and anger management, with a preference for one-on-one counselling.
59. Dr Gee assessed you as falling within the average range of intellectual functioning. On the history given, alcohol use was considered to be a salient risk factor in your past offending.
60. While he noted that there were a number of protective factors present, he also observed that your understanding of your risk profile and potential for future aberrant behaviour was somewhat diminished.
61. Dr Gee concluded that you represent a low to moderate risk of re-offending violently and a moderate to high risk of re-offending at the present time. Your current circumstances were considered to afford at least a moderate level of protection against a relapse into domestic/general violence. Ultimately, Dr Gee concluded that you currently present with at least a low risk of future general violence, and at most, a moderate risk of intimate partner violence in the future. Any future offending, if it occurred, was considered to be most likely to be similar in nature and associated with alcohol, in combination with cognitive/emotional overload due to self-regulation deficits.
62. In the latter part of his report, Dr Gee expressed the opinion that your presenting pathology did not appear to have been causal in the commission of these offences, although it certainly contributed to your aberrant behaviour. He went on to say that your impaired mental functioning would warrant consideration when the court was assessing the impact of incarceration on you and the increased likelihood of a deterioration in your mental health, following sentencing.
63. Dr Gee also noted the likely difficulty in obtaining specialist psychological intervention for you whilst you are in custody, as well as the likelihood of further social isolation and considerable distress from being denied access to your already limited social networks.
64. He considered you to be suitable for an intensive individual rather than group based domestic violence intervention program to increase your level of insight and reduce the risk of re-offending. He also recommended one-on-one counselling and total abstinence from alcohol, and monitoring of same, given its apparent nexus to aberrant behaviour and dysfunctional self-regulation. Psychological intervention was also recommended to increase your capacity for emotional and behavioural control and to address some of the dysfunctional features embedded within your personality structure.
65. Dr Gee also recommended relationship/family counselling to "unpack" any cross-cultural differences and to provide family members with a better understanding of what is culturally/legally acceptable behaviour within Australia.
…
67. In that same email, Dr Gee indicated, presumably based on a history he had been given, that you had been brought up in a background culture where instrumental aggression towards women was normalised.
Pre-sentence report
69. As the authors of that report note, at interview, you blamed your offending behaviour on alcohol abuse, to the point where you claimed that you would not behave in such a violent way if [you] were sober. The authors relevantly noted that history would suggest otherwise, as at the time of the balcony incident in 2012, you were mid-way through a two-year period of alcohol abstinence. Notwithstanding that fact, you claimed to have no memory of that previous incident. You explained your relapse into further alcohol consumption by reference to "peer pressure".
70. In the author's view, whilst alcohol was no doubt a contributing factor in your offending, your attempts to blame it for all of [your] aberrant behaviour demonstrated an inability or unwillingness to take personal responsibility, including for the decision to drink large amounts of alcohol.
71. As the authors had to hand a copy of Dr Gee's report, they spent a considerable period of the assessment dedicated to deconstructing your perceptions of family violence, in the context of cultural diversity. You told them that not many men hit their wives in Myanmar. Whilst verbal aggression is quite common place, physical violence is not. As for children, they obey what their fathers say and follow their lead.
72. Of note is your indication that if you committed the current offences in Myanmar, you would be charged and imprisoned. Contrary to what you had told Dr Gee, you indicated that your father had never been violent towards your mother. You went further and said that your father would not approve of [your] conduct towards your wife. You acknowledged that [your] current offending behaviour was unlawful, but as your wife had done, you indicated that you were not prepared for the extent of punishment that it would attract. You explained that by saying that the severity of domestic violence in Myanmar differs significantly with Australia's legal system.
73. The authors assessed you to be a medium risk of re-offending and to have a high level of need in relation to your alcohol and your marital and domestic situation. They concluded that you will present a significant risk to your family, were you to lapse back into alcohol abuse.
The applicant has undertaken various programs in prison and immigration detention (see [24(b)] and [24(d)] above). In his statement dated 18 April 2022,[38] the applicant referred to having undertaken the following programs:
·While in Barwon Prison, a six-week, one-on-one counselling course. He completed four or five sessions before he was transferred to another prison.
·There were no one-on-one sessions available at the other prison, so he went to group counselling.
·He completed drug and alcohol courses and attended alcoholics anonymous, as well as anger management and relationship counselling.
[38] A2.
The applicant said that he learnt a lot from these courses about how to communicate with his family, how to avoid drinking alcohol either socially or when under stress, how to manage his anger, and how to deal with stress generally. The things that he learnt from these courses have improved his relationship with his family. He said that he speaks to his wife on the phone every day and to his children regularly, and that since completing the parenting course, he has become much better at communicating with his children.
In his statement, the applicant said that since being in prison and detention, he had thought a lot about his offending and realised the huge toll that alcohol had taken on his life. Before he started drinking, he never had problems with his family. He realises that his dependency on alcohol has been his undoing and said that he will never drink again. The applicant said that he could not do that to his family or to himself.
The applicant went on his statement to say that he will apply the things that he has learnt from the workshops and counselling about how to manage his feelings and to not become overwhelmed. He does not drink anymore, and the smell of alcohol now makes him feel sick. He has been sober for seven years and has no interest in drinking. He will no longer put himself in situations which involve alcohol.
At the hearing I asked the applicant about how he would avoid relapsing into drinking:
DEPUTY PRESIDENT:        Okay. So, how would you avoid getting back into drinking alcohol if you are under pressure again if you are allowed to go back into the community?
APPLICANT:  Well, I have a lot of experience now. In here, not any alcohol avoid, only mental pressure, you know. I have a lot of mental pressure. So, even mental pressure, when I have something - thinking too much, I went to gym, I went to badminton - I play badminton, even though I don’t want. So, I go to drawing class or sewing class, or something like that. I spend my time - I just keep my time with another activity. So, now, I don’t have any problem to avoid drinking or to avoid, like anxiety, or something like that anymore because I have a lot of experience and I have a lot of training here, course, or something like that.
DEPUTY PRESIDENT:        What about social drinking? If you’re allowed to stay here and you go to a barbecue on a weekend at a friend’s house, would you have a beer at the barbecue?
APPLICANT:  No. As (indistinct) drinking is - I will not touch in my life because when I found what is my problem, so I - I don’t really interest about this alcohol drinking. Even in here, many people say they spend weekend they are very - they have beer weekend. So, I don’t want to close with them. I don’t want to - when they (indistinct) I got to say I’m leaving myself - I don’t want to talk to these people anymore in my life. This is my - my last (indistinct) because I love my family. I love my stay. I will not touch anymore.[39]
[39] Transcript at 28–9.

The applicant’s evidence was that he started drinking in Myanmar when he was about 16 or 17 years old, which he thought was around 1989. He only drank once or twice a month when he went to town with friends, however, he and his friends would get drunk. His evidence was that he went to Malaysia in about 2008. His wife joined him there in 2010. He still drank at this time. He said that he stopped drinking in 2011 because he realised that he had a problem with alcohol.[40]
[40] Transcript 30.
There was, however, an incident in 2012 when he said that he got drunk with friends. He said that his friends pressured him into drinking even though he told them that he had stopped drinking. This is when the violent attack on his wife referred to in para 13 of Judge Gamble’s sentencing remarks (see [39] above) occurred. The applicant said that after the attack on his wife (of which he claims to have no memory), he again stopped drinking.
He and his family came to Australia in February 2013, but by 2014 he was drinking again. His evidence was that it was part of his Chin culture that people welcomed others with an alcoholic drink. He says that his friends pressured him to start drinking at a barbecue. He thought that this was around the middle of 2014, but by the end of 2014 he was again drinking heavily. Initially he did not drink at home but by early 2015 he was bringing alcohol into the house as well as drinking with friends elsewhere. He said that his wife tried to stop him drinking but was not successful.[41]
[41] Transcript at 33.
The above timeline in the applicant’s evidence is to be viewed in light of the serious assaults that he committed against his wife in December 2014 (see [16]–[18] of Judge Gamble’s sentencing remarks in para [39] above). The applicant’s evidence was that by early 2015 he was drinking heavily despite his wife trying to get him to stop. I asked the applicant if this had occurred in the past, why would it not happen again. His answer was:
No, because this time when I have - I never been - I never have, like, this particular problem in my family. Now I - I didn’t see my kid - you know, the youngest one, when I was arrested, he’s five year or four or five, I think four. So now he’s - he’s turned 11 already. So all these thing, and the previous problem, everything, because of alcohol. When I found out the problem, the main root or the main cause of the problem, it’s easy to change. Because I don’t want - I don’t want any problem with my family, I don’t - I love them. No, I don’t want to separate with my family. I love my kids, I love my wife.[42]
[42] Transcript at 34–5.
The following exchange then occurred:
DEPUTY PRESIDENT:        But you knew it was a problem, didn’t you, when you stopped drinking when you were still in Malaysia, and then again you knew it was a problem in December 2014, but you still kept drinking up until October 2015?
APPLICANT:   Yes
DEPUTY PRESIDENT:          And you knew it was a problem with your family and that you assaulted your wife when you were drinking, but you kept drinking?
APPLICANT:  Yes. It’s a problem that - yes.
DEPUTY PRESIDENT:          Yes. The problem that I have is why should it be any different now? Because your wife couldn’t stop you in the past and you knew it was a problem and you’d recognised it was a problem in the past. Why won’t this just happen again?
APPLICANT:  Because of this alcohol now all my family are broken. Separate. Before it’s not like that. Now is practically, I’m really suffering with this problem. I cannot see my kid, I cannot see my wife. I cannot (indistinct) them what they want, I cannot lead them, my kid, wherever they want to go. So all this, you know, bad dream, it’s wake me up and this is - I’m - this experience, the real practical experience wake me up all about my life. Change about my life. Without experience, no-one can learn, no-one can change their life properly. This is what I see. What I get from this - my experience. So now, before is someone told me, “Don’t drink, it’s not good.” I also know it’s not good. But when we don’t have practically suffering through this (indistinct words), we don’t know exactly how bad it is. But now is in my life practically I’m suffering and I’m struggling and I’m get big trouble with my family and my kid and my life, even myself. So this make me change my life. So now is I’m really change my life. I - even though - even though I not get out in this Australia, even though I - you send me there or you send me to any other country, I will not drink anymore because this is my life experience. So this is what I can tell you strongly, extremely.[43]
[43] Transcript at 35.
As noted above, in cross-examination the applicant’s evidence was that it was part of Chin culture to welcome friends by offering alcohol. Asked by the Minister’s counsel how he would avoid this cultural use of alcohol and peer pressure to drink which in the past had caused him to relapse into alcohol use, the applicant’s evidence was that it was also part of the Chin culture to honour a friend’s request and that if a friend advised that he did not want to drink alcohol he would not be pressured to drink.[44] His evidence also was that, as a result of the programs that he had undertaken, if he found himself in a situation where he was being pressured to drink alcohol, he would walk away and seek to avoid contact with friends who drink alcohol.[45]
[44] Transcript at 37.
[45] Transcript at 38.
The applicant was cross-examined at some length on his history of violence towards his wife. His initial evidence was that he had only committed acts of violence against his wife and children on the occasions for which he was convicted.[46] He was then asked whether he had also assaulted his wife in Malaysia in 2012 as described by Judge Gamble in para 13 of his sentencing remarks, and whether he had also “threatened, assaulted and injured” his wife on a number of previous occasions which had not been reported to police, as described in para 12 of Judge Gamble’s sentencing remarks (see [39] above). The following exchange occurred:
[46] Transcript at 41.
COUNSEL:All right, XFKR, why don’t we actually talk about the offences for which you were convicted? Do you accept that you physically assaulted your wife on numerous occasions?
APPLICANT: I accept the court decision but other - outside comment or decision I can’t accept.
COUNSEL: Well, do you accept that you assaulted your wife in 2012 in Malaysia?
APPLICANT: So I just want to say that - just say that before, that accepting the court decision that they give a sentence, and I accept that.
COUNSEL:Well, the sentence related to you committing various acts of violence between December 2015 and October 2015 - December 2014 and October 2015? In sentencing you, the judge referred to and accepted your wife’s evidence that there had been prior other instances of violence, including an incident in Malaysia in 2012. So what, precisely, do you accept you’ve done?
APPLICANT: Yes, I never (indistinct) the thing that I cause her harm, so everything that I cause harm in the court I accept that I was wrong and now in front of you guys also I accept I was wrong.[47]
[47] Transcript at 42–3.
The above answers did not address the question asked of the applicant, namely, whether he accepted that there had been other prior instances of violence against his wife as noted by Judge Gamble. After further questions from the Minister’s counsel and me, the applicant agreed that Judge Gamble’s comment at para 12 of his sentencing remarks (see [39] above) was accurate. The following exchange occurred:
DEPUTY PRESIDENT:         Judge Gamble says there have been:
a number of previous family violence incidents relating to your wife, which have included serious assaults that have not been reported to the police.
Do you accept that that is correct?
APPLICANT:  Okay. Yes, I accept.
DEPUTY PRESIDENT:         Okay. He goes on to say:
The children have also been threatened during a number of these incidents and have witnessed many of the assaults on their mother.
Do you accept that that is correct?
APPLICANT:  Yes, I accept that.
DEPUTY PRESIDENT:         He goes on to say:
Your wife cannot remember specific dates at all of all of the times that she has been threatened, assaulted and injured.
Now, are you able to tell us how many times you had previously assaulted your wife and caused her injury? Can you tell us how many times that occurred?
APPLICANT:  I don’t know.[48]
[48] Transcript at 46.
Notwithstanding the applicant’s concession that Judge Gamble’s summary of the applicant’s wife’s evidence that there had been “a number of previous family violence incidents” was correct, the applicant’s evidence then reverted to the only previous incident of family violence, being the one incident in Malaysia in 2012 described in detail by Judge Gamble. The applicant’s evidence on this point was evasive and contradictory.[49] I do not accept the final version of the applicant’s evidence that the only incident of family violence prior to those for which he was charged and convicted, was the incident in Malaysia in 2012. I am satisfied, as was Judge Gamble, that there had been a number of incidents of family violence before the incidents in 2014 and 2015 for which the applicant was convicted.
[49] Transcript at 46–9.
There are a number of concerns that arise from the applicant’s history and his evidence. The first and most obvious concern is that the applicant has a long history of assaults on his wife which include violent incidents involving his children. The applicant blames these incidents on his drinking. That, in my view, is not a sufficient answer. As noted by Judge Gamble, the pre-sentence report noted that the applicant blamed his offending behaviour on alcohol abuse, to the point where he claimed that he would not behave in such a violent way if he were sober. The authors of that report, however, suggested the applicant’s history would indicate otherwise, noting that the assault in Malaysia occurred midway through a two-year period of alcohol abstinence (see [56] above). Alcohol is also not the explanation for some of the applicant’s other violent behaviour. The applicant’s evidence at the hearing was that he could remember stabbing his wife in the knee in 2014 because he was “not too drunk”. Similarly, he can remember constructing the garrotte with which he threatened to kill his wife in October 2016 because he made it in the morning after he had been drinking the night before.
As noted by Judge Gamble, the applicant largely, if not entirely, blamed his consumption of alcohol for the offences. This, as his Honour observed, is hardly a full, personal and legal acceptance for criminal wrongdoing. The applicant’s repeated violent behaviour is caused by more than his alcohol issues. In my view the applicant continues to downplay the seriousness of his violent offending and lacks insight into his offending. The inappropriate description of his violent behaviour and the threats to kill his wife in front of family friends using the garotte that he had made specifically for that purpose (see [44] above) demonstrate that he still does not appreciate the seriousness of his violent behaviour. The applicant does not, in my view, truly accept responsibility for the seriousness of his violent behaviour. He seeks to explain, if not dismiss, a relatively long history of violence towards his wife, and on at least one occasion, his children, as “out of character” and having been caused by alcohol.[50] I do not accept that the applicant’s violent behaviour was out of character. I agree with Judge Gamble’s assessment of that claim in paras 77–8 of his sentencing remarks (see [53] above).
[50] Applicant’s SFIC, see para [25(h)] above.
The applicant has undertaken a number of programs while in prison and immigration detention.[51] Unfortunately, there were no program completion reports or any form of assessment of how the applicant had benefitted from these programs. In cross-examination the applicant was asked what he had learned from these programs.[52] The applicant’s answer to that question was not encouraging. About all that he said was that he had learnt to treat women and children fairly, and that he now knows how to talk to his children. He was also asked what his proposed living arrangements would be if he were to be allowed to stay in Australia. His evidence was that while it was his wish to return to live with his family, he had not discussed this with his family.[53] I accept, based on the letters of support provided by his family members,[54] that the applicant’s family does want him to live with them. The applicant did say that his wife had forgiven him,[55] although he had not discussed with her whether he would sleep in the same room as his wife if he were to be allowed to return to his family.
[51] Certificates for these programs appear at R1/87–101.
[52] Transcript at 58.
[53] Transcript at 60.
[54] R1/106–10.
[55] See also her letter at R1/109.
The applicant does not appear to have any particular strategies in place for avoiding alcohol. While he stated that he would not drink alcohol and that the smell of alcohol now made him feel sick, the applicant seems not to have put any thought into techniques that he might employ to assist in his abstinence. I note Judge Gamble’s reference in para 60 of his sentencing remarks to Dr Gee’s observation that the applicant’s understanding of his risk profile and potential for future aberrant behaviour was somewhat diminished (see [56] above). That still appears to be the case. The applicant also appears not to have any plans for continued treatment or counselling in relation to his violence or alcohol issues. In that regard I note the comments of Dr Gee and the pre-sentence report on the need for extensive counselling and psychological intervention (see [56] above). I am not satisfied that the programs that the applicant has completed to date are sufficient in that regard, or that the applicant has gained sufficient insight and understanding to significantly reduce the risk of re-offending.
Dr Gee concluded that the applicant was at least a low risk of future general violence, and at most, a moderate risk of intimate partner violence in the future. According to Judge Gamble, the pre-sentence report assessed the applicant to be a medium risk of re-offending and to have a high level of need in relation to his alcohol and marital/domestic situation. The pre-sentence report concluded that the applicant will present as a significant risk to his family if he were to lapse back into alcohol abuse (see [56] above).
As noted at [73], letters of support were provided by the applicant’s family members. There was also a letter from the Chin Community of Victoria[56] stating that the applicant and his family had been members of that association since 2013. It also stated that the applicant had been involved in Chin community activities and that his family continued[57] to be involved in the Chin community. The author of that letter opines that the applicant will be fully rehabilitated after he has served his sentence. The author does not state the basis of that belief or their qualification to make such an assessment.
[56] R1/105.
[57] As at 21 April 2021.
While the support of his family (noting that the applicant’s offending was against his family members) and the community is a potentially stabilising influence, that same support was there when the applicant offended. I cannot see that anything has changed to reduce the applicant’s risk of offending as he has in the past to any material degree. There was nothing presented to persuade me that the applicant’s risk of offending has materially changed from the levels assessed by Dr Gee and the authors of the pre-sentence report (see [75] above). In the end we have little more than the applicant’s claims that he will not drink alcohol and his assertion that he has addressed his anger management issues. There is still, however, a lack of insight and understanding on the applicant’s part in relation to the seriousness of his offending and the ongoing efforts that he must make to ensure that he does not revert to the behaviour in which he engaged over an extended period. I am satisfied that there is a real or significant risk or possibility of harm to one or more members of the Australian community, in particular the applicant’s wife or an intimate partner, if the applicant were to be released into the community, thereby meeting the test in [31] of Deputy President Tamberlin’s decision in WKCG (see [27]) above).[58] The applicant poses an unacceptable level of risk of danger to the Australian community. In so finding, I am mindful of the statement of Brennan J (as he then was) sitting as President of the Tribunal in Salazar, as quoted by Goldberg J in Vabaza that:
The duty of the Tribunal is to apprehend what is the acceptable level of risk, and to assess whether a particular applicant in the particular circumstances of his case, is at an unacceptable level of risk.
[58] Note the statement of Deputy President Handley in BHYK and Minister for Immigration and Citizenship [2010] AATA 662, that the test is whether the applicant is a risk to “one or more members of the Australian community.”
Even if the comments made by Logan J in DOB18 were to be taken to be setting a higher standard than that set out by Deputy President Tamberlin in WKCG, the standard set by Logan J is met in this case. At [83] of his judgment, Logan J stated that “read in context, ‘danger’ in s 36(1C) means present and serious risk” (see [34] above). If that is to be taken as the standard rather than that stated by Deputy President Tamberlin, then I find that if the applicant were to be released into the Australian community, he would pose a present and serious risk.
DECISION
l find that:
(a)the applicant has been convicted by a final judgment of a particularly serious crime;
(b)the applicant is a danger to the Australian community; and
(c)as a result, the applicant does not satisfy the criterion in s 36(1C)(b) of the Act.
Accordingly, the decision of the delegate of the Minister made on 21 December 2021 to refuse to grant the applicant the protection visa under s 65 of the Act is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 3 February 2023

Date of hearing: 19 May 2022

Applicant: In person

Counsel for the Respondent: Mr J Papalia

Solicitors for the Respondent: Australian Government Solicitor

Offence	Sentence
Make threat to kill	12 months’ imprisonment (concurrent)
Make threat to kill	Six months’ imprisonment (partly cumulative); four months of the sentence served concurrently
Intentionally cause injury	Six months’ imprisonment (concurrent)
Unlawful assault, common law assault, assault with weapon (four counts)	Three months’ imprisonment on each count; partly cumulative, three months of sentence served concurrently
Common assault	Two months’ imprisonment (concurrent)
Assault with a weapon, common law assault	One month imprisonment on each count (concurrent); total effective sentence of 20 months’ imprisonment

Date of hearing:	19 May 2022
Applicant:	In person
Counsel for the Respondent:	Mr J Papalia
Solicitors for the Respondent:	Australian Government Solicitor