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

XPZT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4447 (23 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8827
Re:XPZT
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member R Bellamy
Date:23 December 2022
Place:Brisbane

The decision under review is affirmed
.........................[SGD]..............................................
Senior Member R Bellamy
Catchwords
MIGRATION – refusal to grant a Protection visa – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – multiple violent offences including against minor females – decision under review affirmed.
Legislation
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW).
Migration Act 1958 (Cth)
Cases
DOB18 v Minister for Home Affairs [2019] FCAFC 63
KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
SECONDARY MATERIALS
Convention relating to the Status of Refugees , opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) amended by the Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967).
REASONS FOR DECISION
Senior Member R Bellamy
23 December 2022
background

The Applicant is a 23 year old citizen of Syria. When he was 15 years old, he arrived in Australia as a holder of a Class XB Subclass 204 Woman at Risk visa (“visa”) as a dependant of his mother.
On 21 September 2020, the Applicant was notified that a delegate of the Minister (“the Respondent”) had mandatorily cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that:
·he did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more; and
·he was serving a full-time term of imprisonment.
The Applicant subsequently made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”) however the delegate decided not to revoke the cancellation. The Applicant applied to the Tribunal for review of that decision. On 7 September 2022 a differently constituted Tribunal affirmed the decision.
Meanwhile, on 8 April 2021 the Applicant applied for a Protection (Class XA) (Subclass 866) visa. On 28 September 2021 the Respondent refused the application pursuant to s65 of the Act because the Applicant did not satisfy s 36(1C) which is an essential criterion for a Protection visa.
The Applicant lodged an application for review of that decision in this Tribunal on 1 October 2021. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(c) of the Act.
The hearing of this application proceeded on 21 and 22 March 2022 and 1 April 2022. The Applicant gave evidence via videoconference and telephone with occasional assistance from an interpreter in the Arabic language. The Applicant’s uncle, two friends and Dr Jacqueline Yoxall gave evidence by telephone. The Applicant’s mother also gave evidence by telephone with the assistance of an Arabic interpreter.
The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Legislative framework
Section 65 of the Act relevantly provides that, after considering a valid application for a visa, if the Minister is satisfied that:
·criteria for the grant of the visa have been satisfied (including any health criteria);
·the grant of the visa is not prevented by other sections of the Act; and
·any visa application charge payable has been paid;
the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.
Subsection 36(1A) of the Act provides that:
An Applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
Paragraph 36(1C)(b) of the Act provides:
“A criterion for a protection visa is that the Applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Section 5M of the Act provides that “a particularly serious crime” for the purposes of
s 36(1C)(b) includes a crime that consists of:
·“a serious Australian offence”; or
·“a serious foreign offence”.
Section 5 of the Act relevantly provides that “serious Australian offence”:
means an offence against a law in force in Australia, where:
(a)the offence:
(i)involves violence against a person; or
… and
(b)the offence is punishable by:
(i)…
(ii)imprisonment for a fixed term of not less than 3 years
Additionally, in relation to the complementary protection criteria in s 36(2)(aa) of the Act, paragraph 36(2C)(b) of the Act provides:
“A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b) the Minister considers, on reasonable grounds, that:
…
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
issues
The issues before the Tribunal are:
(a)whether the Applicant has been convicted by a final judgment of a particularly serious crime; and if so,
(b)whether the Applicant is a danger to the Australian community.
The Applicant’s criminal history indicates he has been convicted by final judgement of a number of offences between 2018 and 2020.
On 2 December 2019 the Applicant was convicted of assault occasioning actual bodily harm and assault occasioning actual bodily harm (DV) in the Bankstown Local Court. Pursuant to s 59(1) of the Crimes Act 1900 (NSW) that offence is punishable by a maximum of five years imprisonment.
Accordingly, I am satisfied that the Applicant was convicted by a final judgment of a “particularly serious crime”. Therefore, the only remaining issue is whether the Applicant is a danger to the Australian community.
MEANING OF DANGER TO THE AUSTRALIAN COMMUNITy
Subsection 36(1C) of the Act was enacted to codify the effect of Article 33(2) of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugees Convention’).
Article 33(1) of the Refugees Convention provides that:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Article 33(2) of the Refugees Convention provides that:
The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”), Deputy President Tamberlin, formerly a Federal Court Judge, said the following at [25] to [31] regarding the exclusionary provision in Article 33(2) of the Refugees Convention now mirrored in subsection 36(1C)(b) of the Act:
The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
…
The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100
:...
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular Applicant in the particular circumstances of his case is at an unacceptable level of risk.
...
…
In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future…as Brennan J, pointed out (Salazar at 100) it involves an assessment of the Applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”
In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”) Logan J, referring to Deputy President Tamberlin’s decision in WKCG, made the following observations at [83]:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a Protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.
In KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [54] Bromberg J said, in obiter:
“Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).”
His Honour appeared to equate “present and serious risk” with something “suggestive of a high level of risk”.
The ordinary meaning of danger must contemplate both the probability of a thing occurring and the harm that will result from its occurrence. I do not take Logan J’s formulation of “present and serious risk” or Bromberg J’s “high level of risk” as intended to confine the meaning of “danger” to probability only.
The question whether the Applicant is a danger to the community is to be answered taking into account only matters that are relevant to that question and is not to be balanced against other matters such as the consequences to the Applicant of returning him to Syria.
BACKGROUND AND CRIMINAL OFFENDING
The Applicant was born in Aleppo, Syria in January 1999. He arrived in Australia on 29 July 2014, when he was 15 years old, with his mother, younger sister and younger brother. His brother is severely disabled and is unable to care for himself, walk or talk.
In August 2020, he provided the following history to Mr Chafic Awit, psychologist:
·     his father died in 2011;
·     he lived through years of war, death and carnage in Syria. He witnessed the family home being destroyed by a bomb. On a separate occasion, he came home to see his deceased father covered in a white sheet;
·     he attended school in Syria up to year eight equivalent;
·     at the age of 14 the Syrian army was trying to get him to join. If he did not join, he could have been killed so his family ran away to Lebanon (in a statement he made in 2021 he said this happened when he was 12,[1] although I do not think anything turns on it);
·     he started employment in Lebanon as a cabinetmaker;
·     he attended English school in Australia followed by years 10 and 11 but he did not complete year 11;
·     he struggled with school because his English skills were poor;
·     he attended TAFE where he struggled through a course in construction which he did not complete;
·     after leaving school he worked in construction with a cousin and continued for three years before moving on to another employer. He was still employed in construction until his arrest in March 2020;
·     he started using illicit substances at the age of 17 when he was introduced by fellow students. That became a daily habit from the age of 18. He was also introduced to cocaine, MDMA and Xanax. He became addicted to illicit substances; and
·     he commenced consuming alcohol at the age of 18.[2]
[1] Exhibit T1,T8, pages 118 to 119.
[2] Exhibit T1,T5, pages 95 to 105.
In January 2022, he told Dr Yoxall that:
· in Lebanon he was bullied and tortured in the workplace and sustained frequent physical assaults and constant psychological torment because he was Syrian; and
· when he came to Australia he struggled to adjust.
The Applicant was suspended from high school for non-attendance and fighting because he and his sister were being bulled.[3] According to the Applicant others were calling them “imports” and his sister was made fun of and bullied a lot. On one occasion two boys poured water on her head and told her to remove her scarf. The Applicant poured a drink on them, one of them punched him, and they fought.[4]
[3] Exhibit R2, page 186.
[4] Transcript, page 71, lines 9 to 20.
On 5 October 2017 when the Applicant was 18 years old he committed a common assault. According to the Police Fact Sheet that was provided to the court when the Applicant was dealt with for the offence, the Applicant and the victim socialised with mutual friends on a regular basis. The victim and a friend were walking along the street when the Applicant and some others with whom he was drinking yelled “Come drink with us.” The victim declined and kept walking. The victim saw that a girl, “Ms C”, was consuming alcohol with the Applicant and his associates. A few minutes later Ms C seemed to be slightly intoxicated. The victim asked the Applicant why they gave her a drink and said “Can't you see she's drunk?” There was then a confrontation between the Applicant and the victim and punches were thrown. The victim fell to the ground and saw the Applicant standing over him in an aggressive stance. The victim quickly stood up and the Applicant fled. The victim called the police who attended. He complained to police of pain all over his body. The Applicant was later arrested and appeared to be under the influence of alcohol and/or drugs.[5]
[5] Exhibit R2, pages 133 to 134.
On 4 May 2018 the court found the Applicant guilty of assault but dismissed the matter without proceeding to conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section empowers the court to deal with guilty persons by dismissing the charge.
Three days later, on 7 May 2018 the Applicant was involved in an incident where he and his then girlfriend (“Ms F”) assaulted her ex-partner. Contemporaneous notes made by the police[6] indicate that the Applicant and the victim mutually disliked each other. Ms F contacted the victim stating she missed him and still loved him and she wanted the relationship to work out. They agreed to meet at Fairfield at around 4.30 pm that day. Later they agreed to meet outside the Fairfield Police station.
[6] Exhibit R2, pages 90 to 92.
When the victim was standing on the street near the station, Ms F and the Applicant walked towards him. The Applicant stood approximately 5cm away from his face. He appeared angry and pushed his chest towards the victim. He yelled, “Come, come. Let me show you what kind of gun I have in my car”. The victim became fearful and began walking backwards while lifting his hands up in an effort to create space between himself and the Applicant. The police notes say the Applicant walked towards him and punched him to the face and body. The victim punched back and put the Applicant into a headlock. A number of people intervened to stop the assault. The altercation ceased and Ms F slapped the victim twice, connecting with the side of his nose, causing it to bleed.
There was CCTV footage (from Fairfield City Council) showing the victim running for about 20 meters before stopping and leaning forward, hunched over. A short time later the Applicant, without a shirt on, ran toward the victim and struck his face and body multiple times. During the assault the victim was pushed up against the side of a car, and the mirror of the car appears to have sustained damage.
The police notes indicate that when the victim was up against the side of the car being punched by the Applicant, one of the punches hit the driver's side mirror causing the mirror to snap and hang down. The Applicant punched the victim in the body and face approximately eight times. A witness also recorded approximately six seconds of the incident on his mobile phone.[7]
[7] Exhibit R2, pages 117 to 119.
Ms F and a witness stopped the Applicant from continuing to strike the victim. The victim ran towards Fairfield Railway station, and Ms F chased the victim, who felt pulling from the back of his T-shirt. Ms F slapped the victim before she and the Applicant left the scene. The police observed a number of scratches on the victim such as on his neck, chest, lower stomach and finger. His nose appeared bruised and was bleeding. The back of his t-shirt was ripped.
In the hearing, the Applicant agreed that the police account that I have summarised was a fair summary of his involvement in the incident. He claimed he was not under the influence of alcohol or drugs at that time. The police account contains no mention of the Applicant exhibiting signs of drug or alcohol use. I accept that he was not affected by drugs or alcohol.
The police notes include that afterwards the Applicant gave the police a DVD containing footage that had been recorded by Ms F. It showed the Applicant talking to the victim while walking toward him and moving his hands back and forth from behind his back and to his side. He was leaning extremely close to the victim as the victim was walking backwards. The victim struck out at the Applicant with a closed fist. They then grabbed hold of each other in a scuffle. The footage then ended.
In the hearing, the Applicant claimed that Ms F used to sign in at the police station and the victim knew what time she used to sign. He said when he came out of the station, the victim approached him, they argued, and the victim grabbed his hoodie and hit him in the face. When the victim took the Applicant’s hoodie, a necklace that his father had given him came off. He pursued the victim towards the station retrieve it and they fought again. People came and broke up the fight, and he left.

The Applicant said he did not recall exactly whether he was up very close to the victim walking towards him as the victim was moving back. He said he might have done that but it was the victim who approached and came at him and Ms F. The Applicant was saying “What’s his (sic) problem? She’s with me now”. The victim followed Ms F to the police station, the Applicant was telling him to talk to him and the victim punched him. The victim was holding the Applicant’s hoodie and punching him, so he hit back. It all happened across from the police station in front of Fairfield Court.
There is no mention in the police notes of the Applicant claiming the victim took his necklace and that being the reason why he pursued and attacked him. The police description of what Ms F’s footage shows is not consistent with the victim having grabbed the Applicant’s hoodie first before striking out at him, as the Applicant claims happened. Nor is it consistent with the victim being the aggressor, approaching and following the Applicant and Ms F. I am satisfied that the Applicant approached, and aggressively fronted up to, the victim who retreated. I am also satisfied that the victim swung at the Applicant, a scuffle ensued in which the Applicant punched the victim, the Applicant’s top came off, witnesses broke up the fight, Ms F attacked the victim, the victim ran away, and the Applicant chased him and punched him multiple times with him bailed up against the side of a car, damaging the car’s side mirror.
The Applicant was charged with, and subsequently convicted of, common assault, assault occasioning actual bodily harm and destroy, or damage property valued at less than $2,000. He described the offending as an awful mistake he made and said he knows what he did was wrong.
I note that the Applicant implied that the victim was there to stalk Ms F. Even if one were to accept this, and I do not, the Applicant’s conduct, as he described it, was not protective of Ms F. That is, he did not claim to have asked the victim to leave Ms F alone or to have threatened to report him to the nearby police. Rather, he said “She’s with me now” and fronted up to the victim who was backing away. This behaviour - claiming ownership of a female and seeking to dominate a perceived rival - is noteworthy because it is indicative of a misogynistic, brutish attitude and it is apparent in other offences committed by the Applicant. It is not controversial that such an attitude tends to lead to violence, particularly the degradation and abuse of females.
On 10 May 2018, the Applicant was caught driving without ever holding a driver’s licence.[8] He was convicted on 13 June 2018 and was fined.
[8] Exhibit R2, pages 136 to 137.
On 12 December 2018 the Applicant was dealt with for 7 May 2018 offences. For common assault (DV) and assault occasioning bodily harm (DV) he was found guilty with the charges dismissed without proceeding to conviction, and for the property damage offence he was placed on a conditional release order without conviction for a period of six months from 12 December 2018 to 11 June 2019. He offended during the period of that order.
The Applicant met a “Ms A” through Ms C. Ms A had a younger sister, “Ms R”. Police records indicate that Ms R’s family made a complaint that the Applicant had raped Ms R in the early hours of 14 February 2019, but that Ms R had subsequently told the police that she and the Applicant had consensual sexual intercourse. However, Ms R was a child under the age of 16 and the Applicant was over the age of 18 (they were 15 and 20 years old respectively). Due to their ages the police thought it necessary to obtain an order to protect Ms R. On 19 February 2019, the police served upon the Applicant a provisional apprehended domestic violence order (“provisional AVO”) naming Ms R as the person in need of protection. The order prohibited the Applicant from assaulting, stalking, harassing or intimidating her or damaging her property. He was not to approach her or contact her in any way unless through a lawyer and not to go within 100 metres of any place where she lived or worked.[9] The Applicant was not charged with any offence.
[9] Exhibit R2, pages 30 to 31; page 113.
In the hearing the Applicant claimed he could not recall having been served with any domestic violence order until after another incident detailed below which happened on 3 March 2019. He recalled that he had been interested in Ms A but he had sexual intercourse with Ms R. He recalled the police speaking to him about it but claimed he could not remember what they said to him. He said he did not know how old Ms R was at the time although he knew she was younger than Ms A who he said was his age.[10]
[10] Transcript, page 39, lines 1 to 18.
According to police records,[11] on the evening of 3 March 2019, Ms A and Ms R were in a park. The Applicant was a passenger in a car that drove past. He yelled out “You sluts. Your mum is a slut” and continued to swear at them. Some 10 minutes or so later, the Applicant approached the sisters on foot and swore at them and insulted them. The police facts indicate that another person was involved in the altercation although their name is redacted. In the hearing the Applicant said Ms C was with him and she fought with the sisters. It appears that his accomplice was Ms C. The Applicant described her as being his “ex” at the time. She was 15 years old.[12]
[11] Exhibit R2, pages 71 to 74.
[12] Based on Ms C having been born on 9 March 2003 according to a sentencing transcript at Exhibit R2, page 111.
According to the police records, when the Applicant returned to the park on foot, he was with Ms C and two males. Having been sworn at, one of the sisters swore back. The Applicant spat at Ms R and headbutted Ms A in the face, causing her to bleed. One of the sisters called Triple 000. While she asked for the police, the Applicant said “Who are you calling? Are you calling the police?” and he instructed Ms C to assault her. Ms C slapped her in the face, then she grabbed the other’s sister’s hair and pulled her to the floor causing her hijab to come off. The accused then punched her in the stomach. One of the sisters pushed and punched Ms C to get her away. A person intervened and broke up the fight.
The police attended, spoke to the sisters separately and recommended they both get medical treatment because of their injuries.[13]
[13] Exhibit R2, page 71.
When interviewed by police on 6 March 2019, the Applicant denied insulting, spitting at, headbutting or even touching the victims. He claimed that he went to the park with four other people whose last names he did not know, he saw the sisters and another girl (presumably Ms C) fighting, and he ended up going over and breaking up the fight. He said he then left.
In the hearing, the Applicant gave a different version. He said after Ms R and he had sex, she wanted a relationship but he did not. She came to the park where he was with Ms C to have a fight and Ms R swore at him. I pause to note that this is the second time, the Applicant has claimed that a person whom he allegedly approached and behaved aggressively towards was the one who actually approached him. This part of his account is also inconsistent with what he told the police. The Applicant spat at Ms R and she punched him. Then all three girls fought with each other. He said he was not affected by drugs or alcohol at the time. He said he just behaved badly, he did not mean it and he was sorry.[14]
[14] Transcript, page 37, lines 40 to 47; page 38, lines 7 to 14.
I am not inclined to trust the Applicant’s account because of the anomalies I have mentioned. The police could not locate any CCTV footage of the incident and some witnesses nominated by the Applicant gave versions that, unsurprisingly, differed from the sisters’ versions. It appears that the police did not charge the Applicant with an offence. I am satisfied that the Applicant approached and swore at Ms R and her sister, that he spat at Ms R and that he was involved in the physical violence perpetrated upon Ms A and Ms R. I note that the Applicant was an adult and Ms R was a teenage girl.
According to police records, on 27 March 2019, the sisters were at a park when the Applicant and another female, approached and sat on a bench approximately 10 metres away from Ms R. The Applicant started saying to Ms R “Go away” and “There’s two rats sitting over there”. He then began recording the sisters and saying “Walk away, I have an AVO against you”, “Walk away you and your sister. For my own safety” while sitting at the bench. Ms A walked toward the Applicant and said “Stop recording, we have an AVO against you. You are not the one who is supposed to be near us.”[15]
[15] Exhibit, R2, pages 66 and 151.
In a statutory declaration, the Applicant claimed that the sisters approached him while he was seated at a park and they “tried to create a fight” with him so he would end up in prison. He tried to stay away from them, took photos of them trying to fight him, and called the police and told them what happened. The police said he should have run away from them, not stayed and taken photos.[16]
[16] Exhibit, A2.
However, this is not the account that was accepted by the courts when the Applicant was dealt with for contravening the provisional AVO. The account in the police records was accepted.[17]
[17] Exhibit, R2, pages 113 to 114.
On 2 May 2019 a final AVO was put in place protecting Ms R.[18]
[18] Exhibit, R2 pages 12 to 14.
On 5 June 2019 the Applicant attacked Ms C and another female victim, “Ms S”. The Applicant later told Corrective Services that he had been in a relationship with Ms C for approximately two years and he indicated that it ended when he was incarcerated after this incident.[19] That would place the beginning of the relationship in mid-2017 when Ms C was 14 years old and the Applicant was 18 years old. At the time of this incident Ms C was 16 years old and the Applicant was 20 years old.
[19] Exhibit, R2, page 186.
In an application for an AVO against the Applicant following this incident,[20] he was described as being considerably larger in physical size than Ms C. Ms C and Ms S are listed as the people in need of protection, and “Ms E” is listed as a witness. According to the application, the Applicant was extremely intoxicated and fell asleep on a couch for approximately 20 minutes. Ms C and Ms S later told the police that he had also taken methamphetamine. He woke up and called Ms S and Ms E “slut” and “bitch”. He said “I'm going to rape you tonight” to Ms S at least four times.
[20] Exhibit, R2, pages 20 to 25.
He told Ms C “don't f-cking touch me!” and she said she was not. He pushed her extremely hard, causing her to fall back. She went into the bedroom and started to cry. Ms E followed her. The Applicant upturned a glass table which resulted in a glass vase that was on the table falling and smashing on the floor. He said, aggressively “Where's my wallet?” and Ms S said she did not know. He made to leave and Ms C came out of the bedroom and asked him to stay. He pushed her very hard in the chest, then struck her on the side of her face, causing a split lip. He then pushed Ms C onto a couch and continued to assault her. He shouted “You slut! You f-cked all my mates! How could you do that to me?” and “Where is my wallet you slut?”.
At one point Ms S stepped in and said, “Don't f-cking touch her!” and “Get the f-ck out of my house!”. The Applicant approached Ms S, putting his forehead against hers in an intimidating manner, and said “What the f-ck are you going to do?” and “Junkie slut!”. Ms S told the Applicant she was calling the police and told him several times to leave.
Ms C went into the bedroom again and the Applicant followed. When Ms C was sitting on the floor, with blood on her jeans, the Applicant stood over her and kicked her extremely hard in the chest, causing blood to come out of her mouth. She grabbed her chest and said in a whisper “I can't breath!”
Ms S got a knife from the kitchen and told the Applicant she would stab him in self defence if necessary. He punched her in the chest and threw her to the floor. He then went to exit the residence.
A short time later, Ms C and Ms S went to leave. As they were at the top of the stairs, the Applicant said “I’m going to bash her, watch me”. He reached around Ms S and grabbed Ms C, pulling her down the stairs, punching her as he did so. He threw her down the final 10 stairs, then opened the front door at least six times into her body. He then walked out the front door, Ms S rushed down and closed it, then the Applicant kicked the front door open, damaging it so it could not be closed. Ms C fell to the ground, and Ms E picked her up and comforted her. Ms C seemed absolutely terrified and was crying a lot. The police arrived and noticed that the Applicant was acting extremely erratically. They spoke to each of the four people one by one to determine what had taken place.
Ms C told the police that the previous day the Applicant had thought she was lying to him and held her up against a wall, lifting her off the floor by her throat so that her feet were not touching the floor. He did that for around 13 seconds and she was unable to breathe.
When Ms C got to the police station she refused to be interviewed. She then seemed to recant some of her account, saying the choking was an accident and that the Applicant had only assaulted her once. The police had doubts about the credibility of what she told them at the station. Ms S and Ms E provided statements to the police. There is no suggestion that the police doubted the credibility of their accounts.
On 5 June 2019, the Applicant was arrested and refused bail. He remained in custody until 2 December 2019.
On 5 June 2019, a provisional AVO was made against the Applicant to protect Ms C and Ms S. It provided that the Applicant was prohibited from, among other things, assaulting, threatening, stalking, harassing, intimidating, approaching or contacting them (unless the contact was through a lawyer).
The Order contained the following information:
“If you would like to talk to someone about managing your emotions or stresses, help is available. Call:
Men’s Referral Service on 1300 766 491
Relationships Australia on 1300 364 277
The Parent Line on 1300 1300 52”[21]
[21] Exhibit, R2, page 18.
In a statutory declaration dated in January 2022, the Applicant said that someone had put something in his drink to make him sleep and stole his belongings. When he awoke he was very upset and angry.[22] In the hearing, he claimed he was drinking and smoking, and that after drinking one cup of vodka he passed out, then woke up in a different house without his phone and wallet. He blacked out again and woke up in the police station. When asked if he remembered assaulting Ms C he said “a little bit”.[23] His claim that he was drugged and robbed is not corroborated by the police records.
[22] Exhibit, A2.
[23] Transcript, page 16, lines 32 to 35.
While on remand, the Applicant completed a Remand Domestic Violence program.[24]
[24] Exhibit, R2, page 146.
Corrective Services records dated 24 December 2019 record that the Applicant said he was offered “bupe” (buprenorphine) by another inmate and that he had used it daily.[25] In the hearing, the Applicant admitted to having used cannabis and buprenorphine in gaol.
[25] Exhibit, R2, page 172.
On 2 December 2019 the Applicant was convicted of a number of offences arising out of the incidents in March and June 2019, being:
·assault occasioning actual bodily harm (DV) x 2
·common assault (DV) x 2
·destroy or damage property (DV)
The Applicant was sentenced to an aggregate term of 12 months imprisonment and immediately released on parole. A further common assault and a stalk/intimate intend fear physical etc harm (domestic) offence arising out the same incident were taken into account by the court. The Applicant was also sentenced to a two year Community Corrections Order for contravening the provisional AVO on 27 March 2019. A final AVO protecting Ms C and Ms S was made.[26] The order was in place until December 2021. It included the abovementioned prohibitions in the provisional AVO. He was also subject to parole conditions, one of which was obviously that he was not to commit further offences.
[26] Exhibit, R1 pages 32 to 35.
After the Applicant was released, he and Ms C very quickly recommenced their relationship contrary to the AVO. He explained that Ms C was sending him letters in gaol, telling him she loved him and that she wanted to talk to him, and he still loved her.[27]
[27] Transcript, page 50, line 40 to page 51, line 5.
NSW Department of Corrective Services (“DCS”) case notes, dated 17 December 2019, recorded that:
“When supervision was explained, [the Applicant] understood and stated that he believes if he re-offends he will be deported and he cannot be deported as he needs to be here to support his family and in particular his disabled brother. He stated he has been a permanent resident in Australia for 5 years. [He] insisted on repeatedly stating he will not re-offend and has learnt his lesson and understands about breaching his order.”[28]
[28] Exhibit R2, page 171.
The Applicant said that he meant it when he said he had learnt his lesson and would not re-offend, but he was still using drugs when he was in gaol and still talking to Ms C. As soon as he came out, he went back to the same people he used to associate with and he went straight back to what he was doing before.[29]
[29] Transcript, page 68, line 40 to page 69, line 10.
Other DCS case notes, dated 7 January 2020, indicate that the Applicant was using drugs at that time. He admitted to having cannabis two days previously when he was with friends. He admitted to having previously used cannabis, MDMA, Xanax, cocaine and occasionally Valium in conjunction with alcohol (predominately vodka) daily. He described his use as a coping mechanism for the disloyalty in his relationship with his girlfriend and friends. He disclosed that he once went to a carpark, took five of six Valium with vodka and jumped off the carpark, falling three stories. He could not recall it because he was so intoxicated but the police told him what happened when he woke up. He acknowledged the effects that drugs have on him, losing control over his emotions when drinking. He said he feared disappointing his family as the word has travelled that he has been arrested and friends of the family are now scared to visit their home. He was given a verbal direction to cease drug and alcohol use.[30]
[30] Exhibit R2, page 173.
The Applicant had an appointment to see a psychologist while he was on parole because his parole officer wanted him to, however, he was returned to custody before that occurred.[31]
[31] Transcript, page 69, lines 25 to 45.
The Applicant spent some time working in Canberra. He later told DCS he had used drugs there. He returned to Sydney and friends told him that Ms C was sleeping with his cousin. He felt upset, heartbroken and angry. He went to her hotel room and his cousin was there which he thought proved it and he became “angrier and angrier”.[32]
[32] Exhibit R2, pages 187 and 189.
That was on 18 March 2020. He assaulted both Ms C and his cousin. The attack on Ms C was described by the learned Magistrate who dealt with this offending on 1 September 2020 thus:
“…The offender became increasingly aggressive. He took hold of the back of her head with his right hand and pulled her hair. This caused her pain.
He then pushed her into a nearby wall causing her further pain. She yelled out, “Stop please, you’re hurting me,” and his reply was, “Does it look like I care? I don’t give a fuck.” She fell to the ground in pain and then he committed the second offence of assault occasioning actual bodily harm. He stood over her and started to punch her in the face with both hands. The strikes landed on both sides of her face. He continued punching her and landed further strikes to her right kidney region and then in the middle of her chest.
That strike to the chest caused her to feel breathless. The force of the strike caused her to say, “Let me get my puffer.” He replied, “I don’t give a fuck.” He then used his right foot to stomp on the right side of her face. He continued to assault her by punching her left and right arms. She started to cry. It is unknown how long the incident lasted. It was described by the victim as lasting, “Forever.” She sustained several black bruises to her body due to the assault and was bleeding from her mouth and nose. After that assault, the offender opened the hotel door and the person in need of protection, being the victim, ran outside.
He called out to her to get her shoes on and, “So you want to be a little dog, get people to snitch on me to the police? I’ll take you to the park.” Out of fear, she complied with him and walked with him towards a nearby park. At 2.39pm, they are captured on CCTV footage walking out of the car park on foot. From that footage she is holding a white tissue with her right hand towards her nose and it appears that her nose is bleeding. At a period of time thereafter, she ran back in the direction of the hotel and asked for help from members of the public. The assistance of paramedics was summonsed; a short time later they attended, she was conveyed to Bankstown Hospital for further treatment. She suffered no ongoing health issues as a result of the assault.
On 20 March, she reported the matter to the Bankstown Police and detectives commenced an investigation….In assessing the objective seriousness of the assault occasioning actual bodily harm offending, I bear in mind that it occurred in a domestic relationship with, I infer, a physically-stronger offender as compared to the victim. The force used was significant, both the punching and striking to the face and body, then a stomp to the right side of the face to a person on the ground.”[33]
[33] Exhibit R2, page 112.

The Applicant did not dispute this account. He said that, at the time, he was taking Xanax and had consumed two bottles of vodka. He had also taken cocaine and MDMA that day. He took a lot of drugs because he was very upset, depressed, heartbroken and angry. He said he made a horrible mistake. On 21 March 2020, the Applicant was arrested and taken into custody. His parole was revoked. He has been in custody since that time.
On 8 May 2020, the Applicant again completed the Remand Domestic Violence program. However, he later engaged in aggressive, verbally abusive behaviour in gaol.
A DCS file note dated 12 May 2020, the accuracy of which the Applicant did not dispute,[34] states that the Applicant was:
“abusive and disrespectful towards staff, disobeys direction and verbally abuses staff. Was spoken to on the 12/05/2020 regarding this behaviour and stated “i dont give a fuck what are you cunts going to do”. Inmate shows disregard when been told what to do and consistently and purposely looks to disrupt officers in conducting duties.”[35]
[34] Transcript, page 70, lines 5 to 23.
[35] Exhibit R2, page 181.
A DCS file note dated 26 May 2020 states that he was:
“disrespectful and abusive staff when directed to stop using the phone and attend muster. After being warned that he would be charged for not attending muster [he] stated “i dont give a fuck, fuck all of you dogs”. [He] finds it difficult to follow directions and follow correctional centre routine.”[36]
[36] Exhibit R2, page 181.
The Applicant’s explanation was that the muster was called when it was his turn to use the phone to call his family. He asked for one more minute to call his mother and he was told that because he did not attend muster he was going to be locked inside his room.[37]
[37] Transcript, page 70, lines 35 to 43.
A police file note dated 7 June 2020 recorded that Applicant was involved in a fight with another inmate. No details were provided.[38] In a review with Corrective Services, on 13 August 2020, he claimed he was “sticking up for a young kid with a disability”.[39] In the hearing he said his roommate, was “not fully there” since a forklift ran over him. He was on the phone and another inmate hit him. When the Applicant told that inmate to leave his roommate alone, the inmate hit him and they fought. He was very upset to see his roommate hit.[40]
[38] Exhibit R2, pages 36 to 37.
[39] Exhibit R2, page 186.
[40] Transcript, page 57, lines 17 to 26.
A Sentencing Assessment Report was prepared on 21 August 2020.[41] It included that the Applicant had not been formally diagnosed with any mental health issues, although he was engaged with a custodial psychologist to address symptoms of Post-Traumatic Stress Disorder (“PTSD”) . He continually shifted blame for his current circumstances towards Ms C and stated “I am sorry but it is her fault as well”. He acknowledged the impact of his incarceration on his family, describing financial and emotional strain on his mother who was funding his legal fees and is the primary carer for his disabled brother. He expressed willingness and ability to undertake interventions to address his personal issues, indicating he would do whatever it takes to avoid further incarceration. He was assessed at a medium risk of reoffending according to the Level of Service Inventory - Revised (“LSI-R”).
[41] Exhibit R2, pages 144 to 148.
Mr Chafic Awit, psychologist, provided a report dated 21 August 2020. It appears that this report was commissioned by the Applicant’s lawyers for the purpose of sentencing proceedings following the March 2020 offending. The report was put forward by the Applicant in these proceedings. Mr Awit diagnosed the Applicant with PTSD, major depressive disorder, substance use disorder and alcohol use disorder. He obtained information from the Applicant plus his criminal record and a police fact sheet relating to the March 2020 assault against Ms C.
Mr Awit understood that the Applicant had been consuming alcohol from the age of 18 and found himself turning to alcohol regularly to numb his mind from his past trauma and his current mood. He started using illicit substances at the age of 17. That became a daily habit from the age of 18. He was also introduced to cocaine, MDMA and Xanax and regularly use these substances to numb himself and escape the bombarding distressing thoughts he would regularly have.
Mr Awit said the Applicant had expressed shame and remorse as the time he spent in prison had been an eye-opener for him, and he realised his life has gone nowhere and he has a responsibility to his family. I note that the Applicant expressed similar sentiments when he was on parole prior to the most recent offending.
The Applicant had told Mr Awit that before he was incarcerated he was living with his mother, sister and brother. His mother is not employed as she is his brother’s carer. His sister is enrolled in a teaching degree at university. Before incarceration he was financially supporting his family. He had little time to himself to seek the psychological support that he required. I note that the Applicant’s mother and sister were jointly interviewed by Corrective Services around the time Mr Awit interviewed the Applicant, and they said the Applicant only spent a couple of nights a week at home, and that he sometimes borrowed money from them.[42] In the hearing the Applicant admitted that he was spending all his money on drugs and alcohol,[43] i.e. he was not financially supporting his family.
[42] Exhibit R2, page 190.
[43] Transcript page 71 lines 22 to 30,
Mr Awit understood that the Applicant started a relationship with Ms C in mid-2019. Again, this is not accurate. This is, in fact when the relationship ended. The Applicant said he was very much in love with her but was hurt and angered by the belief that she had cheated on him.
The Applicant told Mr Awit about long suffered symptoms of anxiety and depression and he described a number of symptoms that matched PTSD. He said he often had nightmares of everything that happened in Syria, poor sleep, sleep walking, always feeling like he is on his guard, breathing difficulties, yelling in his sleep, crying in his sleep and hypervigilance. He said he could be quite impulsive and quick to become angry, and often suffers from memory and concentration issues. He thinks a lot of the offences committed over the years were due to him taking drugs to numb all of that and alcohol too. He claimed to have seen people shot in front of him. He said that after getting out of prison in December 2019 he wanted to commence psychological intervention but there was no one available to see him. He finally had an appointment arranged for 24 March 2020 but he was incarcerated in relation to the current offences. He commenced psychological intervention in prison.
Mr Awit opined that, based on the history provided by the Applicant, it was clear that the Applicant was suffering a mental health condition prior to and during the offending that likely impacted his ongoing decision-making processes during the period of offending. He noted that the Applicant had reported experiencing a bombardment of negative thoughts and he could not think clearly. I note that Mr Awit’s opinion is based entirely on what the Applicant told him and that Mr Awit was only referring to the offending in March 2020, not the previous offences.
The Applicant told Mr Awit that what Ms C did (cheating on him) did not excuse his actions. However, Mr Awit noted that the Applicant minimized his criminality to some extent by blaming Ms C and he thought this seemed to be part of his immaturity. He recommended a multi-faceted treatment plan that included drug and alcohol rehabilitation as an in-patient followed by weekly Narcotics Anonymous meetings, and continued counselling with Mr Awit in the form of cognitive behaviour and other types of therapies.[44]
[44] Exhibit T1, T5, pages 95 to 105.
On 1 September 2020 the Applicant was sentenced for assault occasioning actual bodily harm (DV) T2 and contravene prohibition/restriction in AVO (domestic). He was also re-sentenced for contravening the provisional AVO on 27 March 2019 to 18 months imprisonment with a non-parole period of 12 months.
The learned Magistrate made the following remarks on sentence:
“……
The intention in so assaulting [Ms C in March 2020] I find to be the cause of significant pain and damage, that is, he intended to hurt her. The victim was entitled to feel protected as a court order was in effect to protect her. It was breached by substantial violence. Both offences carry substantial objective seriousness. The offences were committed whilst the offender was on conditional liberty.
On 2 December 2019, for the offence of contravention of an AVO on 27 March 2019, the [Applicant] was ordered to enter a Community Corrections Order for two years on 2 December 2019 with supervision by Community Corrections. He breached that order after approximately two and a half months. There is no good reason not to revoke the order. The breach demonstrates doubt on the ability of a court to trust the offender. Furthermore, doubt is thrown upon his capacity to rehabilitate and not reoffend.
At the time of that initial offending he was also on conditional liberty arising from a conditional release order being imposed for six months without conviction on 12 December 2018 for the domestic violence offence of damaging property proved to have been committed on 10 May 2018… The victim was again entitled to feel protected by a court order. There was also moral culpability in the sense of the ongoing harassment of the victim…
A report of Chafic Awit, psychologist, dated 21 August 2020 was tendered. He opined that the offender is suffering from post-traumatic stress disorder, major depressive disorder, substance use disorder and alcohol use disorder…
I accept that he had a traumatic and disruptive childhood in Syria. I accept that he struggled when he came to Australia. I accept that he obtained work through his family. I have difficulty accepting his expressions of remorse given his reoffending whilst on conditional liberty. I accept that his conditions render his ability to control his emotions as problematic.
These findings are supported by the other medical material tendered in the offender’s case and viewed by Mr Awit. A sentencing assessment report was prepared. It confirms the offender’s background. He offends whilst under the influence of drugs and/or alcohol. That is not a mitigating factor. The author of the report suggests that the offender minimises his criminality and, to some extent, blames the victim. In my view, this demonstrates his immaturity.
Whilst in custody he has completed the domestic violence program. He has engaged with the psychologist whilst in custody. He is assessed as a medium risk of reoffending and requires significant supervision to ensure adaption to a lawful lifestyle.”[45]
(Underlining added)
[45] Exhibit R2, pages 114 to 115.
On 21 September 2020 the Applicant’s visa was cancelled under s 501(3A) of the Act.
On 17 February 2021 the Applicant was found with part of a strip of Suboxone (buprenorphine).
On 20 March 2021, the Applicant was released on parole and taken into immigration detention at Villawood as his visa had been cancelled. He initially used buprenorphine and cannabis but stopped shortly after arriving. He had been seeing a psychologist in gaol and he continued doing that in immigration detention.[46]
[46] Exhibit A1, A3, page 15 of 61.
On 8 April 2021 the Applicant made an application for a protection visa and on 21 April 2021, he attended a Protection visa interview conducted by video conference. On 28 September 2021 his application for a Protection visa was refused.
IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?
It is well accepted that one of the best predictors of future behaviour is past behaviour. Past behaviour is indicative of a person’s character, values, strengths and weaknesses. The Applicant committed some 17 offences between 2017 and March 2020 when he was last taken into custody. Those offences include:
·a drunken assault on a male;
·a prolonged sober assault against a male;
·a contravention of an AVO by approaching and harassing the female, teenage, protected person and her sister, in circumstances where he had previously breached that order and got away with it;
·a prolonged, vicious attack on his teenage girlfriend while affected by drugs and alcohol, and an attack on her friend who tried to help her; and
·another prolonged vicious attack on his teenage girlfriend, in contravention of an AVO, while affected by drugs and alcohol.
As stated, the second assault and the assaults against Ms C were prolonged. It was not the case that the Applicant momentarily lost control. Rather, in each he violently attacked the victim over a sustained period and in two of the episodes (the second assault and the first assault against Ms C) he even re-commenced the attack after a break. The unprovoked attack on Ms R and Ms A on 3 March 2019 involved the Applicant approaching the sisters and instigating conflict and violence. All of the assaults caused physical injury to the victims. At one time during the first attacks on Ms C, she could not breathe. The Applicant’s first attack on her caused bruising and bleeding. His second caused several black bruises to her body and bleeding to her face. In each attack, he kicked her when she was on the floor – kicking her hard in the chest and stomping on her head.
It was contended on the Applicant’s behalf that both attacks on Ms C were in response to extreme provocation. I do not accept that characterisation in relation to the first attack. The Applicant may have believed he had been drugged and robbed, but there is no evidence that he was or that he thought Ms C had done those things. She did not provoke the Applicant. In relation to the second attack, I accept that the belief that a partner has been unfaithful is capable of causing extreme distress, however while that partly explains the Applicant’s behaviour, it certainly does not excuse it.
Court orders and parole did not stop the Applicant from offending, the knowledge that he could be deported did not stop him, and the very real prospect of imprisonment did not stop him. What is more, his offending became more serious over time despite the increasingly severe responses from the criminal justice system. The Applicant was undoubtedly a danger to the community prior to his most recent incarceration in March 2020. Further, after being incarcerated, he was verbally abusive to officers in gaol and he was involved in a physical fight.
In August 2020, the Applicant’s risk of re-offending was assessed as medium. The learned Magistrate who sentenced the Applicant in September 2020 considered that his breach of a community based order cast doubt on the ability of a court to trust him and on his capacity to rehabilitate and not reoffend. Further, his Honour had difficulty accepting his expressions of remorse given his reoffending whilst on conditional liberty. He accepted that there was a medium risk of reoffending and that the Applicant required significant supervision to ensure adaption to a lawful lifestyle.[47]
[47] Exhibit R2, pages 113 to 115.
The Applicant asks the Tribunal to accept that he is not now a danger to the community, and that his priority, if he is released, will be to continue his rehabilitation, be a good son and brother and to help his mother care for his severely disabled younger brother. He said he will avoid old associates, including Ms C, and that he used to have friends who did not use drugs, who avoided him because he did use drugs, who he intends to reconnect with them if they are willing.
I accept the following things that are in the Applicant’s favour:
·     he has not consumed drugs or alcohol since March 2021;
·     since he was incarcerated in March 2020 he has:
ocompleted a domestic violence course in prison, conducted in a group setting, over five days, in which there were daily group sessions where the teacher spoke and showed videos;
ocompleted an anger management course in prison in which he attended sessions once or twice per week, which involved group discussions, over a period of two or three months;
ocompleted a drug and alcohol course in prison that consisted of a daily two hour session over three days;
oengaged in individual counselling with a psychologist who is in the community since entering immigration detention; and
oengaged in some counselling provided by the International Health and Medical Service (“IHMS”) while in immigration detention;
·     he intends to arrange rehabilitative counselling in the community if he is given a visa;
·     he has avoided contact with Ms C and his old associates since being incarcerated;
·     upon release from detention he will live with his mother and brother;
·     he has good prospects of gaining employment in the wider community; and
·     he is afraid to be removed to Syria.
In a statement the Applicant wrote in April 2021, he said, of the second attack on Ms C, that he could not control his anger, and that he is now remorseful, having learned a massive lesson out of it. He added that it was unlikely that he will reoffend as he is now well rehabilitated.
In a statutory declaration dated in January 2022, the Applicant attributed his substance abuse to the bad company around him and a desire to numb his mind from past trauma. He said in both incidents in June 2019 and in March 2020 (the assaults against Ms C), he had no intentions to assault anyone, however, the influence of the bad company around him and the consumption of drugs prevented him from controlling his anger. After a period of imprisonment for that, discovering Ms C was cheating made him very angry. Of the incidents in prison, he said he was very depressed and could not control his anger. Additionally, he was still under the influence of drugs. He said Ms C attempted to contact him in prison but he decided not to communicate with her as she caused a lot of problems for him and he needs to “live a normal life away from the bad people in it”. He said that since having psychological counselling, he has become a better person and never involved himself in any violent act. Even when there were altercations in Christmas Island immigration detention centre he was not involved. Rather, he isolated himself in his room. He was engaging in an anger management and domestic violence course, and he had been seeing a psychologist in since May 2021.[48]
[48] Exhibit A1 A2.
Oddly, the Applicant also said that until the date of those two incidents (involving Ms C), he had never committed any crimes or assaults. This is clearly incorrect. He said he was and will be a good citizen who obeys the Australian laws and its values, that his moral values and beliefs will always stop him from doing anything wrong, he believes in helping people and he has never been a risk to the Australian community.[49]
[49] Exhibit T1, T14, pages 157 to 159.
A Mr M provided a character reference for the Applicant,[50] and he gave evidence in the hearing. He has known the Applicant for five years and he worked with him in 2017 and 2018. He considers that the Applicant is a good person and does not pose any risk to the Australian community, but he was badly influenced by his ex-girlfriend. He said the Applicant regrets being violent to her. Mr M was not aware of anyone else being a bad influence on the Applicant or of any of his friends using drugs. He used to tell the Applicant that he should not be with Ms C and that he should not drink or use drugs.[51] It is apparent that there is a lot about the Applicant’s lifestyle and offending that Mr M was not aware of. It is also apparent that Mr M was not able to positively influence the Applicant.
[50] Exhibit A1, A7.
[51] Transcript, pages 80 to 85.

The Applicant’s uncle provided a letter[52] and gave evidence. He has known the Applicant all his life. He is aware that the Applicant has been convicted of assaults and breaching an AVO. He is able to employ him. He is sure the Applicant has learnt his lesson, having spoken with the Applicant a few times in gaol. However, it emerged in his evidence he was not aware of the Applicant ever having had a problem with drugs or alcohol.
[52] Exhibit A1, A6.
Mr R, who is the Applicant’s uncle’s business partner, knows the Applicant socially. He is aware that he has been convicted of assaults. He described him as easy going, and a loving person who will always be there for you if you need something.[53]
[53] Exhibit A1, A5.
Two other people provided character references in the same vein, characterising the Applicant in a positive light but apparently having very little knowledge of his lifestyle or offending.[54]
[54] Exhibit A1, A8 and A9.
The Applicant’s mother speaks with him every day. She has perceived a signficant change in his attitude and perspective on life. She referred to him teling her he was on drugs when he committed “that offence” and that he is now clean of drugs. She said the Applicant would be persecuted in Syria and forced to join the Syrian army. She noted that she does not excuse her son for his actions, and that he is willing to reinregrate back into society, working paid or unpaid, living under strict conditions and surveillance and that she is willing to help any way she can.[55]
[55] Exhibit A1, A4.
In her oral evidence, she said she believes that the Applicant will not return to his old friends ever again. She said he calls her every day begging for her forgiveness. She did not initially know that the Applicant was using drugs but she found out later. She thought the Applicant might have consumed alcohol when he was with “that girlfriend”. She was aware that he went to prison in 2019. She was also aware of a traffic offence. She seemed to have a general but incomplete knowledge of his offending.
These character witnesses all had incorrect or incomplete knowledge about the Applicant’s lifestyle and offending. Their estimation of his prospects of rehabilitation is therefore not reliable.
Mr Sava Tsolis, Clinical Psychologist, provided a report on 21 May 2021. He listed some symptoms reported by the Applicant that are consistent with what the Applicant told Mr Awit. The Applicant told him that hearing people yell or argue often triggers traumatic memories and he flinches when people move near him. Mr Tsolis stated that the Applicant’s anxiety and depressive symptoms have significantly impacted on his ability to function in the areas of his education, social life, home management and self-care, but it is not apparent from his report whether this is what the Applicant reported or what Mr Tsolis deduced.
Mr Tsolis administered several assessment tools. He concluded that the Applicant’s PTSD is in the severe range, and he had been living with longstanding PTSD, mood issues and some cognitive impairment. Mr Tsolis made a secondary diagnosis of Major Depressive Disorder. He recommended that the Applicant commence an individual psychotherapeutic program specifically addressing the issues associated with his depressive symptomatology and PTSD.
Mr Tsolis said:
“Therapy should also seek to establish pro-social behaviours such as engagement with his community, family involvement, supportive peer group, and, eventually, hobbies and interests.
I would also like to focus on value-oriented goal setting for [him] in the hope that he will be clearer in setting appropriate boundaries in any future intimate relationships.
[The Applicant] has also described a plan to continue to engage with his faith for support and solidify the already strong bond that he shares with his mother, younger sister and disabled brother.
The following psychotherapeutic treatment protocols focused on assisting [the Applicant] with posttraumatic stress symptomatology will be included in his treatment plan:
Psychoeducation on the nature of fight/flight response and the physiological, cognitive and behavioural components of this response;
Cognitive defusion strategies to assist [him] in dealing with cognitions associated with the flight/fight response;
Mindfulness training and relaxation strategies to enable [him] to cope more adaptively to physiological arousal and emotional distress.
Furthermore, the following components associated with assertiveness skills training will be implemented:
Psychoeducation on defining assertiveness and teaching [him] about different types of response options;
Direct instruction in nonverbal and verbal skills, such as body language, eye contact, modulation of tone/volume and word choice;
Practicing assertiveness skills through behavioural rehearsal, role-playing and response practice.”
Mr Tsolis opined that the Applicant’s decision-making is impaired by his cognitive difficulties and he is therefore easily led and quite gullible. He opined that “This in no small way contributed to his offending”. However, the Applicant was not a secondary participant in any of the offending. Rather, he was either the sole or main perpetrator. Mr Tsolis also said he did not believe that the Applicant exhibited an entrenched criminal proclivity or propensity to engage in offending behaviours. Rather, he said “his criminal offence demonstrates his gullible nature and his poor cognitive functioning”. He said he is “clearly an impressionable man who recklessly committed an offence that he did not orchestrate”. This characterisation appears to water down the extent of the Applicant’s culpability. I do not accept that the Applicant was led to commit the offences or that he acted other than deliberately. I note the use of the singular “offence” rather than the plural. Mr Tsolis’s repeated reference to an offence, rather than multiple offences, undermines his opinion that the Applicant did not exhibit an entrenched criminal proclivity or propensity to engage in offending behaviours. Mr Tsolis appears to have an incomplete, inaccurate understanding of the Applicant’s criminal history. He had been treating the Applicant while he was in detention but he did not give evidence in the hearing.
Mr Tsolis opined that the Applicant has had an intense period of introspection since March 2020 and gained insight into his own psychological trauma and behaviours. He thought that, coupled with his commitment to seek treatment for his longstanding PTSD stands him in good stead to make significant changes to his psychosocial functioning.
Mr Tsolis said that on multiple occasions throughout his therapy sessions with the Applicant, the Applicant expressed remorse for his actions pertaining to the “offence”, and repeatedly expressed that he has no intention of re-offending in the future.
The Applicant had engaged in around ten sessions with Mr Tsolis by the date of the hearing[56] and he expressed an intention to continue those sessions in detention or in the wider community. He will also speak with Mr Tsolis about getting a place in residential rehabilitation if he is released.
[56] Transcript, page 65, lines 18 to 25.
On 31 January 2022, a psychological assessment report was prepared by Dr Jacqueline Yoxall at the request of the Applicant’s legal representatives in relation to his application to the Tribunal. She was provided with a lot of material but that material did not include the records from the police, the courts and DCS that were later obtained under summons by the Respondent. She agreed with the previous diagnoses of PTSD (chronic and complex), major depressive disorder (currently in partial remission) and substance disorder (currently in early remission within a controlled environment). She accepted that his substance abuse was a form of self-medicating his PTSD, which she said is common.
The Applicant told her that in his culture, a male is expected to be “strong” and is expected to cope with traumatic events. Mental illness is seen as a weakness. He said he reached a point where he needed alcohol and cannabis every day in order to function on a basic level, and when the alcohol and cannabis did not block out his symptoms and memories, he turned to stronger illicit drugs that he could source including cocaine, MDMA and Xanax.
It seems, from the report, that the only offending that was discussed was the offending against Ms R and the two attacks against Ms C. The Applicant told Dr Yoxall that Ms R had a conflictual relationship with him and tried to pursue him for a relationship. The conflict led to police putting an AVO in place in March 2019. The Applicant told Dr Yoxall that Ms R and her sister approached him when he was at a park and tried to start a fight with him, and he tried to avoid them. None of this victim blaming account is consistent with the police records or the sentencing remarks, neither of which were available to Dr Yoxall.
With respect to the first attack on Ms C, the Applicant maintained his claim that his drink was spiked and he was robbed. He said he was intoxicated by drugs, alcohol and whatever had been used to spike his drink. In relation to the second attack against Ms C, the Applicant admitted to also having assaulted his best friend who was with her (referred to as his cousin elsewhere). Dr Yoxall said the Applicant now accepts full responsibility, demonstrates significant remorse and shame for the offending, and has demonstrated a level of cognitive and emotional maturation.
Yet in the hearing, while the Applicant said he now realises Ms C was not to blame for his offending against her, he partly blamed the people he associated with for his offending in general. He said he blames himself more for choosing to associate with them.[57] Again, I point out that the Applicant was either the sole or main offender in the offences he committed. There is no evidence that he was coerced or manipulated to commit any of the offences, in fact people tried to stop him on occasion. He has not taken full responsibility for his choices to abuse substances and engage in criminal behaviour. Further, he attributed the demeaning, sexist language he used to a desire to be like the people around him. I do not think that is a compete explanation: his offending in its totality strongly indicates a misogynistic attitude.
[57] Transcript, page 63, lines 18 to 38; page 65, lines 1 to 10.
In the hearing, Dr Yoxall explained that people with PTSD have significant problems with hypervigilance. They have difficulty regulating their responses and can overreact to anything that they see as threatening. They are prone to startling quickly, and feeling disoriented and overwhelmed, and they have a fight or flight response with high amounts of adrenalin. They are more at risk of responding in ways that others or the law may view as an extreme overreaction. She related this to the first attack on Ms C where the Applicant woke up disoriented.[58] Dr Yoxall clarified that having PTSD does not make a person more likely to be a violent person. The hypervigilant reaction could be running away, withdrawing inside oneself or protecting oneself.[59] I take it then that the Applicant’s violent offending is not fully explicable in terms of PTSD. When asked if she agreed that there remained some rehabilitative needs in terms of the choice to react angrily, she said:
“Yes, absolutely…But the picture here is more complex than somebody just doing a six module program of anger management”.[60]
[58] Transcript, page 116, line 30 to page 117, line 3.
[59] Transcript, page 139, lines 30 to 42.
[60] Transcript, page 130, lines 2 to 25.
Dr Yoxall noted that the Applicant’s judgement and ability to control his impulses were significantly impacted by chronic and complex alcohol, drug and prescription medication abuse and dependence. Neither Dr Yoxall nor anyone else was treating the Applicant at the time of the offending. Her opinion must be based on the Applicant’s self-report and her knowledge of the way drug and alcohol abuse tends to affect people.
Dr Yoxall’s understanding was that the counselling the Applicant had engaged in while in immigration detention involved psychoeducation regarding anxiety, depression and PTSD, use of cognitive diffusion strategies, management of emotional distress to improve impulsive control, and some anger management work to reduce his propensity for domestic violence. She noted that an IHMS case note indicated that one psychologist thought the Applicant was motivated to change and “hoping to learn from his mistakes and be a better provider for his family”.
However, in some of the case notes that contain that comment (which are dated in November 2021), the author also said the Applicant did not want to process his trauma at that stage and that detention was not the right environment to do that.[61] In the hearing Dr Yoxall expressed the view that, in relation to the significant anger management problems the Applicant has had over the years, standard anger management courses that address angry behaviour and angry responses would not be sufficient. In addition to those, the Applicant needs ongoing treatment for chronic and complex PTSD and associated depression. She explained that he understands the cognitive emotional behavioural elements of inappropriate expressions of anger, and of how to manage anger, but what he needs in the longer term is a broader level of treatment around the specific disorders more than he needs another anger management program. He needs to address all the components that contribute to anger management.[62] The IHMS notes reveal that at that point in time, he had not begun to address the trauma underlying the PTSD.
[61] Exhibit A1. A3, pages 10 to 14 of 61.
[62] Transcript, page 127, lines 4 to 28; page 129, line 43 to page 130, line 25.
Dr Yoxall pointed out that in each of the IHMS case notes regarding the Applicant’s treatment, he was identified as being a low risk of harm to himself and a low risk of harm to others. Dr Yoxall did not explain the significance, if any, she placed on this. The main victims of the Applicant’s offending were girls and young women. In detention, he does not have unfettered access to girls and young women. He is also in a highly controlled environment. It is not of great significance that, in such an environment, he was not considered to pose much of a risk to others.
Dr Yoxall opined that the Applicant’s history indicates that he has a significant problem with emotional regulation and impulsivity, particularly when he is under the influence of alcohol and drugs, and that his risk of reoffending in terms of violence is heavily related to his risk of relapse to alcohol and drugs. She noted that prison and detention are both considered to be controlled environments wherein external forced controls limit access to substances as well as opportunities to interact with others.
The Applicant told her that he has no current interest in developing a romantic relationship with anyone. He knew he needs to get treatment and live a stable life first. I note that not all of the Applicant’s violent crimes were committed in the context of an intimate relationship.
Dr Yoxall administered the Spousal Assault Risk Assessment Guide (“SARA”). This tool is targeted towards offending against a partner. The Applicant was placed in the moderate to high risk of reoffending category in terms of domestic violence towards a partner, and he was placed in the low risk category with respect to reoffending towards others.
Dr Yoxall also administered the LSI-R. The Applicant scored 21 which indicates a low moderate risk of general reoffending. In the normative sample, approximately 31.1% who scored in this range reoffended (and were reincarcerated) within 12 months.
With respect to the risk of general offending, I give greater weight to the LSI-R risk assessment than to the SARA risk assessment as the SARA is mainly concerned with measuring risk of partner violence.
In her report, Dr Yoxall said the Applicant presented with what appeared to be a genuine commitment to change and to continuing his rehabilitation. She thought he had adjusted and amended his attitudes and beliefs and addressed his anger, although her oral evidence indicated that she did not consider that he had fully addressed his anger. She considered that his fear of returning to Syria was a significant deterrent to further offending and an incentive to seek treatment.
I note that the Applicant has previously made representations that indicated that he had learnt his lesson, would not re-offend and did not want to be deported, then he re-offended. This information was contained in the summonsed records that Dr Yoxall did not have.
Dr Yoxall largely agreed with the treatment recommendations of Mr Awit and Mr Tsolis. She opined that because of forced sobriety in custody, maturation and the treatment the Applicant had engaged in, his risk of reoffending was much lower than it may have been in the past and he had good prospects of rehabilitation. She assessed his risk as low if he is compliant with treatment, abstinent from substances and his mental health is stable. She said he is likely to require psychological support and intervention for some years to come. She thought that the Applicant’s ability to support his brother and help his mother would have a substantially positive impact on his mental health.
I must now make my own assessment, based on the evidence before me, of the risk posed to the community by the Applicant. All three expert witnesses had incomplete and/or incorrect information about the Applicant’s offending. This affects the use I can make of their evidence. However, they all agree that the Applicant was suffering from PTSD during the time when he was offending, and I accept that he was. I further accept that that PTSD is associated with a hypervigilance and impaired emotional regulation. Those things do not, however, necessarily lead to violent behaviour. The precise extent to which the PTSD contributed to the Applicant’s offending cannot be ascertained because the relationship between the two requires some theorising and reconstruction, however I accept that it played a part. I also accept that drug and alcohol use played a part in much of the offending. It is clear that anger, and the Applicant’s preparedness to take out his anger on young females and to use aggression and violence to dominate others, was a contributing factor.
Dr Yoxall saw treatment for the Applicant’s PTSD as a necessary component of anger management. He still requires PTSD treatment. In fact, according to each of the psychologists, the Applicant requires quite comprehensive ongoing treatment.
Even with their incomplete knowledge of the extent of the Applicant’s offending, and their views that the Applicant’s attitude had changed for the better, neither Mr Tsolis nor Dr Yoxall said he posed a minimal or negligible risk of re-offending. The LSI-R that was administered in 2020 said there was a medium risk of re-offending. When it was administered in 2022, the Applicant was in the low medium risk category, where it is expected that around one third of people in that category will re-offend within 12 months. Dr Yoxall thought the risk would be low if the Applicant engaged in the recommended treatment (which he would likely need for years to come), stayed abstinent from substances and his mental health was stable. These are some big “ifs” that require big changes.
The Applicant previously claimed to have learnt his lesson, and to want to remain in Australia and support his family. He previously did a domestic violence course. Yet he used drugs and attacked Ms C after being released from gaol. That time, he had drugs in his system. This time his system is clean. This is significant. However, as Dr Yoxall pointed out, he is abstinent in a controlled environment and that is different to being abstinent in the wider community. It remains to be seen whether he would avoid his old associates and other anti-social people when he will be living in the same area as he was before, whether he will deal with distressing thoughts and feelings in a healthy way rather than self-medicating with drugs and alcohol when those things are much more freely available, and whether he will follow through with his intention to prioritise his family (a significant positive factor according to Dr Yoxall) rather than abusing drugs and alcohol, whereas he has not done so before. The evidence before me does not give me confidence that he would do all those things.

Additionally, the Applicant will have to have the discipline to arrange appropriate treatment for his mental health and for his predisposition towards violence, and to engage in that treatment on a long term basis. He will not be under the supervision of parole. He will live with his mother, who had very little knowledge of what he was doing when he was using drugs and offending. She has the responsibility of looking after her disabled son. She cannot police the Applicant. His sister got married and moved out of the family home. There is no evidence from her before me. The Applicant will have a job in the community. Normally that is a protective factor, providing stability structure and a degree of supervision. However, he was employed when he was abusing drugs and offending, so in has not, in the past, been effective in keeping him on the right track.
I am not satisfied that the Applicant is rehabilitated, and there is significant doubt in my mind that he will make, and continue, the changes needed to refrain from offending in the wider community.
The nature of harm from further offending of the kind the Applicant tends to engage in, even just one episode, is very serious. Given that, any real risk of re-offending constitutes a serious risk. To avoid doubt, in my assessment, taking into account the expert and other evidence, I consider that there is a real risk of re-offending in the present and foreseeable future. The Applicant is therefore a danger to the community. I have already found that he has been convicted by a final judgment of a particularly serious crime. I consider that the grounds for both conclusions, which are set out above, are reasonable.
The Applicant does not satisfy s 36(1C) of the Act and he therefore does not satisfy the criteria for a protection visa. For completeness, I mention that because of s 36(2C)(b)(ii) the Applicant also does not satisfy s 36(2)(aa) of the Act.
DECISION
The decision under review is affirmed.

I certify that the preceding 154 (one hundred and fifty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

................................[SGD]........................................
Associate
Dated: 23 December 2022

Date(s) of hearing: 21, 22 March 2022 and 1 April 2022

Solicitors for the Applicant:
Mr Mark Northam

Northam Lawyers

Solicitors for the Respondent:
Mr Jake Kyranis

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

T1

Section 37 T Documents (T1 to T18 paged 1 to 188)

R

-

15 December 2021

A1

Applicant's Statement of Facts, Issues and Contentions (paged 1 to 9) and Annexures:

·     A1 – Psychological Report of Dr Jacqui Yoxall dated 31 January 2022

·     A2 – Statutory Declaration of the Applicant dated 11 January 2022

·     A3 – IHMS Records

·     A4- Statutory Declaration of the Applicant’s Mother dated 10 January 2022

·     A5 – Letter from Mr R (undated)

·     A6 – Letter from the Applicant’s Uncle dated 29 January 2022

·     A7 – Email from Mr M dated 29 January 2022

·     A8 – Letter from Mirna dated 30 January 2022

·     A9 – Letter from Bassam dated 29 January 2022

A

-

3 February 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)

R

28 February 2022

28 February 2022

R2

Respondent’s Tender Bundle (R1 to R5, paged 1 to 203)

R

-

28 February 2022

[2022] AATA 4447

23 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T Documents (T1 to T18 paged 1 to 188)	R	-	15 December 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 9) and Annexures: · A1 – Psychological Report of Dr Jacqui Yoxall dated 31 January 2022 · A2 – Statutory Declaration of the Applicant dated 11 January 2022 · A3 – IHMS Records · A4- Statutory Declaration of the Applicant’s Mother dated 10 January 2022 · A5 – Letter from Mr R (undated) · A6 – Letter from the Applicant’s Uncle dated 29 January 2022 · A7 – Email from Mr M dated 29 January 2022 · A8 – Letter from Mirna dated 30 January 2022 · A9 – Letter from Bassam dated 29 January 2022	A	-	3 February 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 13)	R	28 February 2022	28 February 2022
R2	Respondent’s Tender Bundle (R1 to R5, paged 1 to 203)	R	-	28 February 2022