YFNF and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 2058

YFNF and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2058 (3 October 2025)
Applicant/s:  YFNF
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:                2025/1347

Tribunal:Senior Member A Suthers
Place:Perth
Date:3 October 2025

Decision:The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that the Applicant satisfies the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth) and is not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii) of that Act.

Statement made on 03 October 2025 at 4:16pm
CATCHWORDS
MIGRATION – decision refusing to grant Applicant a Protection (subclass 866) visa under s 65 Migration Act 1958 (Cth) – whether offences committed by the Applicant meet the definitions ‘serious Australian offence’ in s 5(1) Migration Act 1958 and ‘particularly serious crime’ in s 5M Migration Act 1958 – whether reference to subsidiary definitions in definition of ‘particularly serious crime’ are inclusive or exhaustive – relevant legal principles – whether Applicant is a ‘danger to the Australian community’ – decision set aside and remitted.
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Criminal Code Act Compilation Act 1913 (WA)
Migration Act 1958 (Cth)
CASES
AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564
Applicant A v MIEA (1997) 190 CLR 225
Betkhoshabeh v MIMA (1998) 84 FCR 463
Betkhoshabeh v MIMA [1999] FCA 16
CCYW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4452
Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107
Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207
DOB18 v Minister for Home Affairs [2019] FCAFC 63
FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541
G v MIBP [2018] FCA 1229
GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602
Hamidy v Minister for Immigration and Border Protection (2019) 164 ALD 149
MIMA v Betkhoshabeh [1999] FCA 980
Minister for Home Affairs v G and Another [2019] FCAFC 79
Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385
Powell v The Administrative Appeals Tribunal and Anor (1998) 89 FCR 1
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Scott and the Commissioner for Superannuation (1986) 9 ALD 491
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055
SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104
Vabaza v MIMIA (Federal Court of Australia, Goldberg J, 27 February 1997)
WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728
SECONDARY MATERIALS
Commonwealth, Parliamentary Debates, House of Representatives, 25 September 2014, 20547-8 (Scott Morrison, Minister for Immigration and Border Protection).
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion, in Refugee Protection in International Law: UNHCR Global Consultation on International Protection 139 ¶ 186 (Erika Feller et al. eds., 2003).
United Nations High Commissioner of Refugees, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, Doc No HCR/1P/4/ENG/REV.4, February 2019
Statement of Reasons
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent Minister dated 12 December 2024 (‘Reviewable Decision’), that refused her Protection (subclass 866) visa application (‘Visa’) because the Applicant was found not to meet the requirements of ss 36(1C)(b) and 36(2C)(b)(ii) of the Migration Act 1958 (Cth) (‘the Act’), in that there were reasonable grounds for considering that the Applicant was a person who had been ‘convicted by a final judgment of a particularly serious crime’ and ‘is a danger to the Australian community’.[1]
[1] All references to legislative provisions in this statement of reasons are to the Act, unless otherwise stated.
The delegate was, however, satisfied that the Applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a). Further, the delegate decided that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk she will suffer significant harm, as provided for in s 36(2)(aa). Consequently, the Applicant would have satisfied the criterion in s 36(2)(aa) except that s 36(2C)(b)(ii) applied to her.
BACKGROUND
The Applicant identifies as a transgender female and is a Sri Lankan national who first arrived in Australia as the holder of a Student visa on 7 February 2001. The Applicant last arrived in Australia on 27 June 2008 as the holder of a Skilled Independent (subclass 136) visa.
The Applicant is now 55 years of age.
From a young age, she says that her identity was female but neither the Sri Lankan culture nor her family accepted that. The Applicant indicated that her mother would allow her to wear dresses in the home but if her father found out she was ‘physically and mentally tortured’. The Applicant says that because of her effeminate manner, her family said that she was born intersex, although in recent years medical testing has disproved this.
The Applicant indicates that she suffered significant bullying at school.
As a young adult she says that she was arrested by the Police and that her father had to pay police officers to prevent her from being jailed for dressing differently to her gender.
The Applicant indicates that there was a short period of time where she had a relationship with a male when she was a young adult. However, when her father found out about it, the relationship had to stop, and the family required her to marry someone they deemed suitable. The Applicant says that she found a suitable woman from a family of a similar socio-economic status and, when her family approved, they got married. The Applicant’s wife understood the Applicant’s gender identity issues, but they had wanted to remove themselves from their controlled home-lives and saw the marriage as an opportunity to do so.
To escape her situation in Sri Lanka, the Applicant and her wife decided to move to Australia.
By that time, the Applicant and her wife had a one-year-old child, and they came together to Australia for an initial period between 2001 and 2003. After an unsuccessful return to Sri Lanka, the Applicant and her family, including her brother, returned to Australia in 2008.
The adult family members worked in the beauty treatment industry. During that time, because her wife and brother were not accepting of the Applicant presenting as female, the Applicant’s public appearance and presentation remained as male.
Over time, because there was no ongoing sexual relationship between the Applicant and her wife, the wife formed a romantic relationship with the Applicant’s brother. The Applicant and her wife remain married but have no intimate relationship.
The Applicant’s relevant offending occurred whilst the Applicant was providing IPL (hair removal) services from the family’s business to females, on their genitalia.
On 30 August 2013, the Applicant was convicted of seven counts of ‘Sexual Penetration without Consent’ and was sentenced on 10 February 2014 to a term of imprisonment of four years and eight months. The Applicant was sentenced on the basis of the following facts in respect of each victim:
(a)Victim 1 – The victim was 18 years old at the time the offence was committed and was attending her first IPL appointment. The IPL handpiece was in contact with the top part of her pubic area and the sides of the outer lips of her vagina. When the Applicant was treating her with the ‘IPD handpiece’ she placed one or two fingers inside the victim’s vagina on to her clitoris and rubbed back and forth in a long movement for approximately 30 seconds. The Applicant's fingers, one or two of them, were placed between the outer lips of the vagina (Count 6).
(b)Victim 2 – The offence occurred on the fifth appointment attended by Victim 2. During that treatment she complained about pain. The Applicant asked the victim whether she minded if the Applicant rubbed the area, and the victim responded to the Applicant ‘not to rub just to press’. Notwithstanding that, the Applicant continued to rub the vaginal area with her fingertips, lowering the palm of her hand to the top of the vagina and clitoris whereupon the Applicant rubbed the whole area. The rubbing in that area was not at the location in which the handpiece to the IPL equipment was being used. The rubbing of the victim's clitoris was deliberate and not part of the treatment (Count 7).
(c)Victim 3 – The offence occurred at an appointment in 2011. The Applicant took the victim's underwear off. The Applicant told the victim that the treatment was quite painful, and she would put pressure on or rub the area to make it feel better. When the handpiece was being used by the Applicant between the victim's belly button and pubic area, the Applicant rubbed the victim with her fingers on the area upon which the handpiece was applied. When the handpiece moved to the vaginal area, the victim experienced more pain. The victim told the Applicant it was really painful, whereupon the Applicant started rubbing in little circles where the pain was and then the rubbing was undertaken in bigger circles but not where the handpiece was being applied and away from where the victim was feeling the pain. The location of the rubbing then changed to the victim's clitoris and involved long strokes from her clitoris to her inner labia (Count 12). The offending ceased due to a knock at the door of the treatment room and the Applicant departing for a short period. The Court was satisfied that at the time the Applicant exited the room, the door had been locked from the inside. Upon her return to the treatment room, the Applicant resumed the procedure and the rubbing continued from the victim's clitoris down to the inside of the victim's vagina in the inner labia. The Applicant then asked the victim to get on her hands and knees, which she did, and the Applicant rubbed the victim from her clitoris down to her anal area but in long strokes in the inside of her vagina (Count 13). The victim was distressed from the commission of those two offences and made a complaint to the police that day.
(d)Victim 4 – The offence occurred at the victim’s third treatment. The victim described the treatment as being a lot more painful than the two earlier treatments. During those treatments the Applicant rubbed the area she had treated with her fingers. When the victim asked the Applicant whether that was part of the treatment, she told her that rubbing distributed the pain. During the appointment, the intensity and pressure of the Applicant's rubbing increased. The rubbing did not correspond with the area which was being treated by the handpiece. The Applicant rubbed the victim on the inside of the inner lip of her vagina, near the vaginal canal entrance at which time the handpiece was being applied to the outer lip of the victim's vagina. The rubbing by the Applicant around the entrance to the victim's vagina was prolonged and the Applicant inserted the tip of her finger inside the victim's vagina moving it in and out (Count 14).
(e)Victim 5 – The offence occurred at the victim's third treatment. On this occasion the treatment was extremely painful, and the Applicant adjusted the setting to the point that the victim hardly felt any pain. The Applicant started rubbing only the area that was being treated even though the victim told the Applicant that it was not painful anymore. As the IPL handpiece moved along the outer lips of the victim's vagina, the Applicant commenced rubbing the inside of the lips near the opening of the victim's vagina with two fingers. In addition to which, the Applicant rubbed the victim around the inside of her vaginal lips near her clitoris, well away from the area in which the handpiece was being used (Count 15).
(f)Victim 6 – The offence occurred during the victim's first appointment. When the victim went into the treatment room, the Applicant told her to lie down on the bed and took off the victim’s underwear. The Applicant told the victim to get on her hands and knees and the victim said she would not. When the handpiece started moving down towards the victim’s vagina the Applicant told her that she would start to rub the area to help with the pain. The Applicant started rubbing, using her fingers in a circular motion on the victim’s pubic area, on the area that was treated. The Applicant then moved the handpiece to the outside of the victim’s vaginal lips but rubbed her on the clitoris in a small circular motion. The Applicant continued to rub the victim's clitoris while moving the handpiece to different areas (Count 16).
The Applicant reports having been raped in prison in February 2014.
On 30 March 2016, the Applicant filed a Notice of Appeal in relation to her convictions. The Appeal was dismissed on 12 December 2016. The Applicant’s proposed grounds of appeal relied on additional evidence which she sought leave to adduce in the appeal.
That evidence sought to establish that the rubbing sensation reported by the complainants was caused, not by the Applicant's hands, but by a device called a Serenity Pro Pneumatic Skin Flattening Attachment (‘PSF Attachment’). The proposed grounds of appeal were found to have no reasonable prospects of success, with the Court finding that the Applicant did not use the PSF Attachment on the complainants, and her evidence concerning the use of the PSF Attachment was not credible.
On 3 August 2016, the Applicant's Skilled Independent (subclass 136) visa was cancelled under s 501(3A). The Applicant requested revocation of the visa cancellation which was refused on 21 January 2019.
In a report by the WA Department of Corrective Services on 22 June 2017, it states that the Applicant was ‘a quiet prisoner who does not come to their attention for adverse reasons’, and who ‘abides by the unit’s rules and conforms to the prison routine’. It goes on to state that the Applicant was ‘polite towards staff and interacts appropriately with other prisoners in the unit’.
A decision made in July 2018 by the Prisoner’s Review Board Western Australia determined that after ‘giving paramount consideration to the safety of the community’ a post sentence supervision order should not be made in respect of the Applicant.
On 9 October 2018, the Applicant was released from incarceration and into immigration detention.
The Applicant reports having again been raped, whilst in detention, in December 2018.
On 23 May 2019, the Applicant applied for a Protection (subclass 866) visa which was refused on 2 July 2019. The Applicant first sought review of that decision in the former Administrative Appeals Tribunal (‘AAT’) but was unsuccessful in that application and in subsequent proceedings, culminating in a refusal of leave to appeal to the High Court.
The Applicant’s conduct in immigration detention was not reported to be as benign as that recorded during her incarceration. An immigration detention incident report from October 2021 involving the Applicant stated that there were multiple instances where she indecently exposed herself to detention officers and made no attempts to cover herself on those occasions.
On 19 November 2023, the Applicant lodged a request for Ministerial Intervention under s 48B. On 20 February 2024, the Minister lifted the bar pursuant to s 48A and invited the Applicant to apply for a further protection visa.
On 25 February 2024, the Applicant lodged an application for the Visa.
She provided evidence that she had extensively engaged in psychologist appointments during her time in detention. A treatment summary report dated 19 February 2024 states that the Applicant attended bi-weekly counselling sessions. Another report indicated that the Applicant had attended approximately 200 sessions since April 2021.
The Applicant’s then psychiatrist, Dr Alex Welborn, provided a report dated 6 December 2023. It stated that the Applicant’s mental health issues ‘are being managed and are under relatively good control’. At around the same time, the Applicant commenced receiving hormone treatment to assist in her gender transition.
The Applicant also commenced therapy with Ms Janice Paige, Registered Psychologist (‘Ms Paige’), in April 2024.
On 12 December 2024, a delegate of the Minister made the Reviewable Decision.
On 2 January 2025, the Applicant sought review of the Reviewable Decision in this Tribunal.
The Applicant remains in Australia under a Bridging R (class WR) Removal Pending (subclass 070) visa (‘Bridging Visa’). She still lives with her wife and brother. Her reporting conditions under the Bridging Visa have been reduced from twice weekly to monthly.
The Applicant has casual work assisting in undertaking research in academia but has no formal academic qualifications in that regard. She is well regarded by her supervisors.[2]
[2] Exhibit 1, pp 601-602.
THE HEARING AND THE EVIDENCE
I heard the matter on 16 and 17 June 2025. The Applicant and Respondent were legally represented. I took oral evidence from the Applicant, Ms Paige, and Dr Phil Watts, Adjunct Associate Professor in Clinical Psychology. Dr Watts had prepared an independent expert report relied upon by the Applicant.
The following documents were marked as exhibits:
(a)Joint Hearing Book, containing pp 1-614 (‘Exhibit 1’);
(b)Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’) (‘Exhibit 2’);
(c)Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’) (‘Exhibit 3’);
(d)Applicant’s submissions in reply (‘Exhibit 4’).
For the reasons set out below, I have decided that the Reviewable Decision should be set aside and remitted to the Respondent for reconsideration with a direction that the Applicant satisfies the criterion in s 36(1C)(b), and that she is not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii).
LEGAL FRAMEWORK
By judicial determinations before the establishment of this Tribunal by enactment of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), the AAT was found not to have authority to review the aspects of the Reviewable Decision mentioned in [2], above, when conducting a review of this nature.[3] In part, those determinations relied on the structure of the AAT, which has been varied in the ART Act. To the extent necessary, having regard to those changes, the parties are agreed, and I am satisfied that I should limit the scope of the review to the issues described at [1], above.[4]
[3] Daher v Minister for Immigration and Ethnic Affairs (1997) 77 FCR 107; Powell v The Administrative Appeals Tribunal and Anor (1998) 89 FCR 1, [12] (French J); Hamidy v Minister for Immigration and Border Protection (2019) 164 ALD 149, [31]- [32]; GWRV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 602; SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055.
[4] ART Act, s 53.
The Applicant is seeking a protection visa. Section 36 sets out the criteria for the protection visa. Section 36(1C) relevantly 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 36(2C)(b) substantially mirrors s 36(1C), and relevantly provides:
A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if
...
(b)the Minister considers, on reasonable grounds, that
(i) the non-citizen is a danger to Australia’s security, or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community
The term ‘particularly serious crime’ is defined in s 5M. It relevantly provides:
For the purpose of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if reference in that paragraph to a particularly serious crime includes a reference to a crime that consists of the commission of
(a)a serious Australian offence; or
(b)a serious foreign offence.
The term ‘serious Australian offence’ is defined in s 5 as follows:
(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.
HAS THE APPLICANT BEEN CONVICTED BY A FINAL JUDGMENT OF A PARTICULARLY SERIOUS CRIME?
There is no dispute, and I am satisfied, that the Applicant has been convicted by a final judgment of an offence against a law in force in Australia. In respect of each of the offences the Applicant was found by the Court to have committed, she has been found guilty on a final basis and her appeals have been exhausted.
The Applicant acknowledges that the nature of her offending conduct, leading to the convictions, is serious. However, the Applicant disputes that it constitutes the commission of a ‘particularly serious crime’, properly construed.
The submissions made by both parties on this issue, in their respective SFICs and at the hearing, were solely directed to whether the Applicant had been convicted of a ‘particularly serious crime’ by reference to the definition of ‘serious Australian offence’.
They made opposing submissions in this respect. The Applicant argued that her offending did not involve ‘violence against a person’ and that, even if I were to find to the contrary, such violence was not an element of the offence she was convicted of on each occasion. The Respondent disagreed in both respects.
For reasons I will come to, I do not need to resolve either of those issues. However, they were of particular significance at the hearing due to a decision of the President of this Tribunal, Kyrou J, in WKBF.[5] In that decision, the President determined that violence, for the purpose of the definition of ‘serious Australian offence’, meant the application of physical force to the body of the victim and that such violence needed to be an element of the offence to engage the definition of ‘serious Australian offence’. Whilst the President’s decision in that respect was not binding on me, authority dictates that I should generally follow it.[6]
[5] WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728.
[6] Scott and the Commissioner for Superannuation (1986) 9 ALD 491, [499]; Bell J in Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207, [107]
However, in my deliberations on this issue, it appeared that the parties had failed to consider whether the reference to a ‘serious Australian offence’ (and serious foreign offence which was clearly not engaged) in the definition of ‘particularly serious crime’ was inclusive or exhaustive. If it was merely inclusive, the Applicant’s offending may have constituted a ‘particularly serious crime’ irrespective of whether the definition of ‘serious Australian offence’ was engaged. Indeed, the Applicant had submitted that the crimes that may be considered particularly serious crimes should be constrained to those such as ‘a capital crime or a very grave punishable act,’[7] and that offences in this category would generally include genocide, crimes against humanity, and war crimes at an international level, but at a national level may include acts such as terrorism, espionage, and other offences that cause significant harm and endanger public safety such as murder, rape, and drug trafficking.[8]
[7] With reference to the United Nations High Commissioner of Refugees, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, Doc No HCR/1P/4/ENG/REV.4, February 2019, [155].
[8] ASFIC, [42].
It seemed to me that rape, and sexual penetration without consent (the offence the Applicant was convicted of), were potentially analogous offences.
In considering this issue, I considered obiter comments of Bromberg J in AFF20,[9] finding that the reference to the subsidiary definition of ‘serious Australian offence’ in the definition of ‘particularly serious crime’ was inclusive, and not exhaustive.
[9] AFF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1564, [36]–[45].
As a result, I had a note sent to the parties seeking written submissions as to whether each of the Applicant’s convictions for sexual penetration without consent may constitute a ‘particularly serious crime’, without reference to the definition of ‘serious Australian offence’, noting that, if so, the Tribunal may consider whether the offences should be so categorised. I referred the parties to the Applicant’s apparent concession that, in a domestic context, a presumption arises that the offence of rape should be considered a ‘particularly serious crime’, where the offence of sexual penetration without consent may be considered to be analogous to rape. I referred the parties to the similar definition of rape in the Criminal Code 1899 (Qld), s 349 to that contained in s 325 of the Criminal Code, read with the definition of ‘to sexually penetrate’ in s 319 of the Criminal Code.
In answering that request, both parties submitted that the reference to ‘serious Australian offence’ in the definition of ‘particularly serious crime’ is inclusive. Whilst recognising that Bromberg J’s comments in AFF20 were made in obiter and were described in the judgment as a ‘brief determination’, neither party cavilled with his Honour’s approach to determining the issue. I think the parties are correct, and respectfully agree with Bromberg J’s decision on this issue. As the decision in AFF20 is reported, and the parties are in agreement, I see no need to repeat His Honour’s considerations. I would simply add that, when determining Parliament’s intent in this respect, reference can also be made to the revised Explanatory Memorandum for the Bill[10] that initially introduced the concepts of ‘particularly serious crime’ and ‘serious Australian offence’ into the Act, in functionally identical terms, which stated at [44]:
The above provision does not exhaustively define what constitutes a "particularly serious crime". It remains possible that other types of "particularly serious crime" may occur depending on the circumstances of particular cases. The new provision ensures that core types of criminal offences which are viewed by the community as being particularly serious are treated as "particularly serious crimes" for the purpose of Article 33(2) of the Refugees Convention…
[10] Migration Legislation Amendment Bill (No. 6) 2001 (Cth)
In respect of whether the Applicant’s offending conduct constitutes a ‘particularly serious crime’, the Applicant submits that judicial consideration of the meaning of the phrase is limited and that the Federal Court has suggested that the decision-maker needs to consider not only the crime itself, but also the circumstances surrounding its commission.[11]
[11] Betkhoshabeh v MIMA (1998) 84 FCR 463 at 467, followed in Betkhoshabeh v MIMA [1999] FCA 16. Compare Vabaza v MIMIA (Federal Court of Australia, Goldberg J, 27 February 1997). The Full Court in MIMA v Betkhoshabeh [1999] FCA 980 found it unnecessary to consider the issue.
Whilst not resiling from her earlier reference to rape being considered a ‘particularly serious crime’, the Applicant submits that the offence of sexual penetration without consent is not analogous to rape.
The Applicant submits that the term ‘rape’ reflects an archaic and antiquated conception of sexual offences. Historically, rape was narrowly defined under the common law as the carnal knowledge of a woman against her will, with restrictive interpretations of what constituted sexual intercourse. Legislators across different jurisdictions have not reached a consensus on a uniform statutory definition of rape. Modern statutory frameworks adopt broader and more precise terminology, such as ‘sexual penetration without consent,’ ‘sexual assault’, or ‘sexual intercourse without consent’, to capture a wider range of non-consensual sexual conduct. Consequently, the Applicant submits, the sexual offences now codified in legislation do not necessarily correspond to the common law understanding of ‘rape’.
The Respondent contends that the offence of sexual penetration without consent as set out in the Criminal Code is analogous to the offence of ‘rape’ as set out in other Australian state or territory jurisdictions. Whether the offence is described as sexual penetration without consent or rape, the conduct element of the offence is largely one and the same, being, relevantly, the penetration of a person’s vagina without the person’s consent.
The respondent refers to the Australian Law Reform Commission’s report on Family Violence - A National Legal Response which additionally notes that in some Australian jurisdictions there has been a move away from the language of rape to the language of sexual assault.[12] The Report states:
This was generally seen as a way to move away from the emphasis on sexual elements, to focus instead on sexual assault as an assault — that is, as an act of violence. Other jurisdictions have retained the language of rape.
[12] Australian Law Reform Commission, Family Violence - A National Legal Response (Report No 114, 20 November 2010) vol 24, 24.86 (see Law reform | ALRC, accessed on 23 September 2025).
The Respondent submits that this further supports the position that the terms are analogous given the variance of language across Australian jurisdictions is a result of some jurisdictions deciding to broaden the definition rather than seeking to establish that sexual assault offences are distinguishable from the offence of rape.
The Respondent further notes that in the decision of CCYW,[13] the Tribunal found that the applicant had been convicted by final judgment of a ‘particularly serious crime’ in factual circumstances similar to this case. CCYW committed the offences of sexual intercourse without consent and assault with act of indecency in 2008 and 2015 in circumstances where CCYW was performing massage therapy. CCYW similarly used his position of trust to offend under the guise of performing massage therapy on the victims and included penetrative acts which was found to meet the definition of a ‘particularly serious crime’.
[13] CCYW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4452, [47].
The Respondent submits that the Tribunal should similarly find in this case; that the Applicant has been convicted by final judgment of a ‘particularly serious crime’ in factual circumstances similar to CCYW.
CONSIDERATION AS TO ‘PARTICULARLY SERIOUS CRIME’
There is no evidence before me to suggest that the Applicant is a danger to Australia’s security or has committed a serious foreign offence. I am satisfied that those provisions are not engaged.
To the extent that it is necessary to decide, I agree with the Respondent that the offence of sexual penetration without consent is analogous to rape. However, I think it would be wrong to conclude that this is a necessary finding in determining whether the Applicant has been convicted of a ‘particularly serious crime’.
Rather, I think the answer to that question, if it is to be determined without reference to whether a ‘serious Australian offence’ has been committed, involves a broad, but not unconstrained, evaluative judgement. I agree with the Applicant’s submission that regard may be had to the sentiment expressed in the UNHCR Handbook on Procedures,[14] which states that ‘a “serious” crime must be a … very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1F(b) even if technically referred to as “crimes” in the penal law of the country concerned.’ In my view, the fact that the ‘particularly serious crime’ exemption applies to permit expulsion or return to a person’s former home country, despite their need for protection, makes the need for setting a ‘high bar’[15] in the evaluative judgement self-evident.
[14] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, (Handbook), reissued 2019, [155].
[15] Referred to in Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulement: Opinion, in Refugee Protection in International Law: UNHCR Global Consultation on International Protection 139 ¶ 186 (Erika Feller et al. eds., 2003).
Ultimately, though, I am satisfied that the offences committed by the Applicant were very grave punishable acts. The sexual violation of the body of another person without their consent, however described or defined, should properly be understood as particularly serious. The available punishment for like offences throughout Australia recognises that fact. Nothing in respect of the way the Applicant offended sets her apart from that.
The Applicant has been convicted by a final judgment of a ‘particularly serious crime’.
IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?
The second element reflected in ss 36(1C)(b) and 36(2C)(b)(ii) is that the person constitutes a danger to the Australian community. It has been judicially considered and the former AAT has expressed views about its application.
In WKCG[16] the AAT explained (in comments I agree with) at [25]:
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 Refugees Convention because the words are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
[16] WKCG and Minister for Immigration and Citizenship [2009] AATA 512.
The Tribunal went on to state, at [26] that:
…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 achieved. 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 Tribunal proposed a structure for assessing whether a person constitutes a danger to the Australian community by considering:
(a)the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances;
(b)the criminal record in totality, including the extent and nature of any prior convictions and the period over which they took place;
(c)the risk of re-offending and recidivism, and the likelihood of re-lapsing into crime; and
(d)the prospects of rehabilitation.
I am satisfied that those factors, whilst not rising to exhaustive or mandatory considerations, provide a useful framework to the assessment of risk.[17] The principles set out in WKCG were said by Jackson J[18] to be ‘useful, provided [these are] approached, not as a test or a mechanical checklist, but as a guide to assessing the fundamental question of fact’.
[17] FSKY v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 541, [68].
[18] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104, [85] (‘SLGS (appeal)’).
In DOB18[19] Logan J explained that the Tribunal must be satisfied that the Applicant ‘is and will into the indefinite future be a danger, not that the person once was a danger’.
[19] DOB18 v Minister for Home Affairs [2019] FCAFC 63.
In the Full Court of the Federal Court in DMQ20 Thomas and Snaden JJ,[20] identified:
[20] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84.
107Conceptually (at least for present purposes), “danger” is a function of probability and consequence. A person will pose a ‘danger’ insofar as there is sufficient likelihood that he or she will engage in conduct that visits upon others a sufficient degree of harm. Both of those constituent concepts may be measured along spectra. Future conduct might be inconceivable, highly improbable, likely or certain (or any degree in between). The harm that it might visit might range from minor to severe. At issue presently is what combinations of probability and consequence should suffice to qualify as danger in the sense contemplated by s 36(1C)(b ) of the Act
...
111Qualitatively, it is clear enough that the reference in s 36(1C)(b) of the Act to “danger” was intended to denote a prospect of harm. Given the statutory context - involving, as it does, an exception to the expectation that Australia will afford protection to refugees and others in need of it - it is likely that the Parliament intended that it should involve harm of non-trivial kinds. The likelihood - even a very high likelihood or certainty - that a person might cause others to feel anxious, offended, embarrassed, miserable or despondent, for example, is unlikely to suffice. “Danger” implies a prospect (howsoever measured) of injury (at the least), most likely of physical or psychological kinds.
…
113When assessing the presence of danger (in the sense that the natural and ordinary meaning of that word imports), the required analysis is both quantitative (what is the level of probability that something might happen?) and qualitative (what are the consequences if it does?). They are related inquiries: a high probability of mid-level personal injury, for example, might bespeak the presence of danger no more tellingly as would a moderate or even low probability of serious injury or death
...
116In its human form, then, “danger” presupposes that there should be something about a person’s character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of routine interaction. Ordinarily, that would fall to be assessed by reference to the person’s prior conduct and the likelihood that it might be repeated. A person with no history of violent offending would ordinarily be thought not to pose any danger to others, no matter that he or she might possess some real capability to inflict harm. A person with an appetite for and history of violence, on the other hand, might well be thought otherwise.
Rares J, agreed with the outcome in that decision, but with different reasoning.
In SLGS (appeal) Jackson J stated[21] at [82]-[84]:
To the extent that there are differences between the construction of s 36(1C)(b) of the Migration Act favoured by Rares J in DMQ20 and the construction favoured by Thomas and Snaden JJ, it is the approach of the plurality that must be followed. In my view, their Honours held 'danger', as used in s 36(1C)(b), to be a word of ordinary English which is to be applied to all the facts and circumstances of the case and which is not susceptible of more precise definition. It would be consistent with their Honours' approach for the decision maker to consider whether the harm that will eventuate if the danger becomes a reality is non-trivial and whether it would be harm of a physical or psychological kind. It would also be consistent with that approach to consider whether the risk that the harm will eventuate goes beyond that which is contemplated in ordinary personal interactions. Both the plurality and Rares J endorsed a concept of danger that combines an assessment of how probable harm is with an assessment of the severity or seriousness if the probability eventuates.
[21] with Snaden J in agreement.

The term ‘Australian community’ does not mean the danger must be to the community as a whole.[22]
[22] SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055, [59].
In WGKS,[23] the Court held that two parts of the test posed in s 36(1C)(b) (i.e. the conviction for a ‘particularly serious crime’ and the danger to the Australian community) are not related in any proportionate or balancing way. Instead, whether there are reasonable grounds for finding an applicant is a danger to the Australian community will be fact-specific and it does not necessarily follow that because a person has a conviction for a ‘particularly serious crime’ there are reasonable grounds to consider that the person is a danger to the Australian community. Whilst in some cases the nature of the particularly serious crime may be sufficient in itself for a decision-maker to consider on reasonable grounds that the person is a danger to the Australian community, in other cases it may not.
The seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances
[23] WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1060, [26].
The first thing to be recorded is that, despite aspects of the offending being denied by the Applicant, I am not to look behind her convictions and sentencing unless she meets a ‘heavy onus’ of demonstrating that should occur, and even then, not as to the propriety of the convictions.[24] That heavy onus is not met merely by the Applicant’s ongoing denials.
[24] Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385 [44],[45].
Whilst accepting her crimes were serious, the Applicant notes that she was sentenced to four years and eight months imprisonment, and submits that under the provisions of the Act, for a crime to be considered a ‘particularly serious crime’, the sentence imposed must typically involve life imprisonment or a term of not less than three years. The Applicant submits her sentence is ‘just above the three-year threshold, but it falls significantly below life imprisonment or a sentence of indefinite length’. She submits that her offending did not involve any of the ‘usual’ aggravating factors in offending of this nature, such as violence or threats.
That submission misstates the relevant definition of ‘serious Australian offence’, which refers to the available sentence, not the sentence imposed, but nothing turns on that.
The Applicant also sought to rely on factors I will address below, in respect of her rehabilitation, to address the question of whether there are mitigating factors in relation to the offending. Whilst relevant to the question of potential recidivism, those factors are not mitigating factors in respect of her offending.
The Respondent contends that the offending was serious, such that it raises concerns as to whether the Applicant continues to be a danger to the Australian community. The Applicant's offending occurred while she was in a position of trust performing hair removal services on the victims. There was a clear power imbalance not only by the physical position the women were in but also because of how the victims agreed to the particular service to be performed, and the Applicant using that imbalance to gain access to victim's bodies. The Respondent submits that the fact that there were six victims also elevates the seriousness of the Applicant’s offending.
The Respondent refers to comments of Scott DCJ in sentencing the Applicant:
Further, it is true that there was no forceful penetration but in each case the penetration by you between the lips of the vagina of each victim and touching their clitoris was prolonged. In addition, the violation constituted by the breach of trust and the deception to which I have referred elevated the seriousness of the offending.
The Respondent also refers to Scott DCJ’s reference to the vulnerability of the Applicant's victims and the abuse of trust involved by taking sexual advantage of the victims in circumstances where they trusted the Applicant to touch them in the pubic region only as required by the treatment they were receiving. The Respondent submits that the Applicant’s imprisonment of four years and eight months also demonstrates the seriousness of the offending and the Court’s rejection of a suggestion that a suspended sentence was appropriate.
I note there was also reference in the sentencing remarks to the basis for the offending, with the court stating that the Applicant had:
…abused the trust reposed in you by each victim and penetrated each of them for your own sexual gratification...there is simply no other reasonable explanation for you penetrating these victims in this way.
I am satisfied that the Applicant’s offending conduct, whilst isolated to a relatively short period of time, is demonstrative of a real risk of serious psychological harm to victims if it were to be repeated. I accept that the number of victims the offences were perpetrated on, and the distress caused by both the physical violation and breach of trust the offending represented, are relevant to that determination. It was also reflected, in part, by the sentencing Judge’s comments and the length of the sentence imposed. Whilst a more severe sentence of up to 14 years imprisonment was available to the Court, the sentence imposed was still significant given the Applicant’s otherwise unblemished criminal history.
The offending was very serious and had aggravating features.
The criminal record in totality – and the period over which the offending took place
The Applicant’s offending occurred over a period of two to three weeks in 2011. There is no evidence to indicate that the Applicant has been convicted of any other offences that might bear on whether she poses a danger to the Australian community.
Whilst the number of victims is a consideration that adds some weight to a conclusion that the Applicant poses a danger, the extended period the Applicant has spent in the community with no other offending is a mitigating factor to the weight that might otherwise be given.
The risk of re-offending and recidivism; and the prospects of rehabilitation
In a statement dated 22 April 2025 the Applicant, for the first time, accepted that she offended in the manner found by the Court. Notwithstanding that, the Applicant in evidence before me did not accept all of the court’s findings as referred to in its sentencing remarks.
It is apparent to me that the Applicant still does not fully accept that she offended as found by the Court in every respect. In particular, she denies having any overt sexual intent whilst offending. That is an issue I will return to.
What the Applicant did recognise in evidence, in a manner that I found persuasive, was the harm that was inflicted on her victims through their experience of her conduct, even where she denies it. This understanding, the Applicant says, has been reinforced by her own experiences of sexual assault in prison and detention. Therefore, the Applicant understands the harm she caused by what I am satisfied she still believes was, in some respects, simply an overstepping of boundaries whilst engaged in providing services.
I also found the Applicant’s evidence that she has no intent of working in the beauty industry, or to otherwise put herself in a situation where she would be likely to be exposed to the opportunity to offend in a like manner, persuasive.
The Applicant was questioned about the reports that she had inappropriately exposed herself to detention officers. Her responses indicated that she felt this was entirely accidental. She said that the inspections by officers were not clearly scheduled and said that she may, for example, have simply been exiting the shower at a relevant time. She alleged that officers would not knock before entering. I did not find her evidence in this regard persuasive. The explanation itself is, of course, plausible taken in isolation. What I am considering, though, is a situation where trained detention officers found it notable enough to mention, and one officer took the trouble to make a written report about their concerns regarding the Applicant’s behaviour. In the written report, it states that ‘[the Applicant] know[s] exactly when we do headcounts and welfare checks’.[25] Whilst the Applicant raised concerns about the officers’ conduct in this regard, she only did so after the incidents were put to her as possibly adverse in respect of her Visa. I am satisfied that there is a proper inference to be drawn that those officers would be aware of environmental factors which may cause them to accidentally come upon detainees in a state of undress. I find it most unlikely that they would take the trouble to report such events unless they were situationally inappropriate. I am satisfied that this was the case for the Applicant.
[25] Exhibit 1, p 554.
What I make of that evidence needs to be considered with the assistance of the expert evidence that is also before me.
In that regard, Ms Paige wrote three letters of support for the Applicant in the visa application process. The first, dated 15 April 2024, was the first occasion when Ms Paige was able to meet the Applicant, by Audio-Visual Link. Ms Paige had also had regard to other unspecified information she considered ‘relevant for a current risk assessment’.
Ms Paige recorded that she had formed ‘the opinion that [the Applicant] is safe to be released and does not pose a risk to the community.’ Ms Paige referred to six dot points of information that informed her assessment.
Ms Paige repeated her opinion in a report dated 6 July 2024, noting further that she had agreed to provide the Applicant with ongoing psychological services on a monthly basis, and that Ms Paige has ‘over 25 years’ experience in providing treatment for individuals who have offended sexually’.
In a third report, dated 18 March 2025, Ms Paige indicated that she had ‘provided a preliminary risk assessment and a recommendation for further preventative treatment …’ in her reports of 15 April 2024 and 6 July 2024, and that she had provided the Applicant with further ongoing treatment, consisting of 11 sessions at that date.
Ms Paige opined (with citations removed):
[The Applicant] has likely been suffering from a complex form of Post Trauma Stress Disorder since childhood. She lived in fear for her safety constantly in Sri Lanka, and her autonomic nervous system remained in survival mode even after coming to Australia due to the criticism and shaming that she experienced in her family about her desire to live as a woman.
At the time of the offending [she] was totally focussed on working as hard as she could to earn money which would enable her to establish her independence in her own home. Her experiences in prison and later in immigration detention have all added to her fear and ensured that her autonomic nervous system remained firmly stuck in survival mode.
[She] shared that, while being held at Yongah Hill Immigration Detention Centre, she suffered a brutal rape by a cell mate which not only traumatised her but significantly increased the level of empathy she felt for her own victims and amplified the remorse that she was already feeling.
Risk Assessment
Research has shown that the commonly-held view that denial is related to recidivism has not been established.
Ward and Mann (2012) explain
Sexual offenders in treatment programs are usually expected to take responsibility for their offending which we define, on the basis of a literature review, as giving a detailed and precise disclosure of events which avoids external attributions of cause and matches the official/victim's account of the offense. However, research has not established that a failure to take responsibility for offending is a risk factor for future recidivism. In this paper, we critically review and evaluate the literature on taking responsibility for offending, to determine the rationale for the popularity of this treatment target. We consider the reasons why sex offenders fail to take responsibility for their offending and examine some potential problems with focusing on this goal in treatment programs. We also describe alternative treatment strategies for taking responsibility and conclude that there is less need for offenders to take responsibility for their past offending than there is for them to take responsibility for their future actions.
Other researchers have also failed to find a credible link between denial, minimisation and recidivism. Further research also shows that sexual offenders have a generally lower rate of recidivism than other criminals even without treatment and that with treatment the rates are even lower [citation removed].
The period of offending was short-lived although it did involve several victims. Given her many years of offence-free work prior to her offending, the episode can justly be seen as a stress-induced aberration in her behaviour rather than a permanent character trait. As such it would not be an indication of the long-term nature of her risk, and I believe that the aberration in her character at the time of her offending does not indicate that her character is permanent flawed to the extent that she is a threat to society now.
It should be noted [the Applicant] it should also be noted (sic) that she has not been denying that her actions caused the victims to feel sexually violated, and has consistently stated that she accepts the findings of the Court in that regard.
For these reasons in my opinion, [the Applicant’s] years of denial of a sexual motivation should carry little weight in our view of her current and future risk of reoffending, and I remain of the opinion that her risk of reoffending in the future is very low. (NB it is not prudent to conclude that anyone is at no risk of offending sexually, as the majority of offences are perpetrated by first time offenders, even in mid-life or later.)
In evidence, Ms Paige acknowledged that she had prematurely, and incorrectly, concluded that the Applicant ‘does not pose a risk’ in her first two reports, given her more qualified view in her third report that the risk is ‘very low’ and ‘that it is not prudent to conclude that anyone is at no risk of offending sexually’. She acknowledged that she did not have all of the relevant evidence as to the Applicant’s offending when providing her earlier reports.
However, overall, Ms Paige’s evidence was consistent with her third report. Her qualifications and expertise are unchallenged and I accept that she is suitably qualified and experienced to assist the Tribunal by the provision of expert evidence I was satisfied that her opinions were validly held, and evidentially based to the extent that they were not impacted by any effect of her therapeutic relationship with the Applicant.
I do, however, discount the weight I give to Ms Paige’s evidence due to the unequivocal nature of her report of 15 April 2024, which I find may have ‘anchored’ Ms Paige somewhat prematurely to a position that was based on insufficient exploration and consideration of all relevant information. I will also discount the weight I give to her evidence due to the effect of the therapeutic relationship she has developed with the Applicant. In evidence, Ms Paige noted that she had, now, completed 21 sessions with the Applicant, and expressed the view that ‘Australia is lucky to have [the Applicant]’. Whilst it is in no way inappropriate that someone with a therapeutic relationship give expert evidence in proceedings of this nature, I am satisfied from that comment that it may serve to subconsciously impact the independence of Ms Paige’s opinions to an extent. The Respondent submitted that Ms Paige’s evidence, to an extent, indicated that she was advocating for the Applicant. I do not assess the difficulties I noted in her evidence to rise that high, although I saw no evidence that Ms Paige was aware of the Tribunal’s Expert Evidence Practice Direction.
The extent to which I will discount the weight I give to Ms Paige’s evidence should not be overstated, though. She made appropriate concessions and gave thoughtful and appropriate responses to questions asked of her. I am satisfied that her report of 18 March 2025 provides a sound assessment of risk of the Applicant reoffending, subject only to the qualifications I have raised.
Dr Phil Watts provided an expert report dated 5 June 2025. Dr Watts is registered to practice as a psychologist in Australia. He holds the endorsements of Clinical Psychology and Forensic Psychology with the National Registration Board.[26] He is an Adjunct Associate Professor in Clinical Psychology at Canberra University. His qualifications and expertise are unchallenged, and I accept he is suitably qualified and experienced to assist the Tribunal by the provision of expert evidence.
[26] An endorsement means that a psychologist has additional qualifications and supervised experience in an area of practice
Relevantly, Dr Watts opined at [29] of his report, that:
Sexual Risk
As touched on earlier and as detailed in the Statement of Material Facts, [the Applicant] was providing beauty treatment in the form of hair removal (Brazilian treatments using a light device). [The Applicant] pleaded not guilty on the grounds that she did not believe that she had done anything wrong in the sense that the treatment required touching in the vagina area. The jury found that at least in some of the cases the evidence was compelling as to the touch being outside of the expected treatment area and in a manner which was inappropriate.
Subsequent to that time, [the Applicant] completed a medium intensity sex offender programme and at the time of writing this report has also done individual counselling with Janice Paige. [the Applicant]’s perception of the situation is that as a male person, she should not have been doing the treatment, understands that at the time she did not understand appropriate boundaries and understands that [the Applicant] having being [sic] subject to two major sexual assaults expressed particular distress at how those incidents would have felt for the victims.
[The Applicant] denies any sexual intent although accepts that “subconsciously there may have been some reason for the inappropriate touch”. In the circumstance of the offences, I am not satisfied that the lack of acknowledgement of a sexual intent changes the risk in that [the Applicant] identifies that she had inappropriate boundaries and that the experience would have felt violating.
In the offender programme report from the Sex Offender Medium Intensity Programme (SOMED) there is reference to the Static-99R where [the Applicant] was deemed to be in the low risk category in the initial pre-treatment and seen as low risk on the STABLE-2007 (which is based on clinical risk). My own consideration of the Static-99R would concur with these findings. In a revised version of the Static-99R it refers to risk for men in [the Applicant]’s age range at the time of the offence as either below average risk, average risk, above average risk or well above average risk. She would have scored as average risk.
The circumstance of the offence being in a work related situation wherein the work [the Applicant] was engaged in a treatment which involved touching intimate areas, the line between what was acceptable and unacceptable is very narrow and if not working in that area risk reoffending risk would be extremely low.
[The Applicant] has undertaken considerable emotional counselling, completed a sex offender course and then done additional sex offender counselling. These factors are likely to impact risk by lowering it.
Of particular note as a psychologist with 35 years’ experience, in my early years the concept of chemical castration of sex offenders where they were put on blockers of male hormones was a treatment strategy for sex offenders. I am familiar with the technique although it was something that was eventually deemed ethically inappropriate. The Applicant’s gender affirming hormones which include testosterone blockers has essentially created the same type of programme which significantly lowers libido and impacts sexual performance capacity. Therefore, as a trans person on hormone therapy the sexual risk would be extremely low.
This is one of the more unusual cases I have assessed in terms of sex offender risk. Under normal circumstances of the offence as been occurring by a male beauty practitioner engaged in penetrative touch of female clients while providing hair removal treatment to a vaginal area would in my opinion with someone who has no other history of any sort of offending be likely to be considered low risk of reoffending, especially if they addressed the boundary violations.
In this case [the Applicant] has gender dysphoria and has engaged in hormone affirming transgender identification, expresses no interest in female relationships and with gender affirming hormones likely to be extremely low risk of any likelihood of reoffending.
In conducting this assessment, it is evident that [the Applicant] has had significant counselling. I still see evidence of residual Post Traumatic Stress Disorder which requires some further counselling. I am not satisfied that any further sex offending counselling will make any difference in this case.
[The Applicant] has described a lifelong history of difficulties associated with not being able to live her gender identity and has been subject to bullying, abuse and threats. From [the Applicant]’s account, the hormones have allowed her to have a body that she feels comfortable in and for the last several years has been able to live her identity with acceptance by most people. [The Applicant] indicated she believes that she can live her identity in Australian culture. She reports that a return to Sri Lanka will result in further trauma and harm and no ability to live that identity.
Much of the history is based on self-report and does not have additional verification. I would note that during the 2017/2018 sex offender course there was discussion about dissatisfaction with being a male and issues related to gender dysphoria. Therefore, whether or not the level of gender dysphoria was present in her earlier life as she has described, there is at least 5 years that this is a discussed issue. Further, engaging in hormone treatment is not something done lightly, and her reaction to the impact of treatment (spontaneous tears at the thought of the change) likely supports the genuineness of the issue. Given the rapid change in acceptance of trans people in western society, it is also common that older trans people did not disclose till later in life and there may not be much evidence from early in life, especially in a country like Sri Lanka.
In conducting this assessment, I find no evidence that [the Applicant] is a danger to Australian society and in my opinion is exceptionally low risk in terms of likelihood of reoffending in any way. Being allowed to stay in Australia will enable her to have support around the trans process which will assist her both practically and emotionally. Visa cancellation resulting in a return to Sri Lanka is likely to be psychologically harmful if [the Applicant] is not accepted as female by family and society, as [the Applicant] anticipates.

In evidence, Dr Watts noted that in his extensive career conducting risk assessments of this nature, it was unusual for him to reach a state of satisfaction that the risk of someone reoffending is ‘exceptionally’ low. He has done so on ‘perhaps half a dozen occasions’ and this was indicative of the factors that took the Applicant’s case out of the ordinary.
Without a full appreciation of the context of the Applicant’s conduct in exposing herself to detention officers, if that occurred in the manner I have accepted, Dr Watts did not wish to speculate on whether it represented an ongoing lack of appreciation of personal boundaries. As a result, and given my findings in this regard, I have no evidence as to the effect it would have had on Dr Watts’ assessment if he had accepted that the Applicant had knowingly exposed herself in the way I have found to detention officers. The Respondent submits this is indicative of the Applicant not having reached the understanding as to appropriate boundaries that others, including Dr Watts, have accepted.
Dr Watts noted that, absent the issue of acknowledgement of intent to offend, the actuarial assessment of risk caused by the Applicant was already very low. Whilst accepting the Court’s view that the Applicant’s intent for offending was sexual in nature for the purpose of answering questions from the Respondent, Dr Watts noted that the use of hormone treatments with offenders likewise reduces the risk further on an actuarial basis.
Dr Watts’ evidence was that, whilst it is helpful when someone has full insight into their offending, it helps ‘only to a small degree’ because most factors that play into a risk assessment are not significantly affected by intent or acceptance of the full extent of the offending. Similarly, whilst Dr Watts was unable to complete a personality assessment index tool with the Applicant due to her having English as a second language, Dr Watts was satisfied that he was able to use his clinical experience and judgment to overcome any deficiency in his assessment this may have contributed to.
Overall, I was satisfied that Dr Watts’ opinions were validly held and evidentially based. His answers to questions by the Respondent and by me were reflective, considered and, where appropriate, Dr Watts made concessions. For example, Dr Watts conceded that he should have referred to there being no ‘clinical’ evidence that the Applicant was a danger to the community, in the first sentence of the last paragraph of his report, as quoted above.
I am left to consider the effect of my finding that the Applicant inappropriately exposed herself to detention officers in 2021, without the benefit of expert opinion in that regard. I have had regard to the fact this occurred in a rather artificial situation of the Applicant being detained, and subject to regular visits by officers. I also take into account that this occurred before the commencement of her hormone therapy and gender affirmation. Finally, in this regard, I take into account the significant level of ongoing therapeutic counselling the Applicant has received since these events occurred. I am satisfied my findings in this regard should detract very little from the significant weight I otherwise place on Dr Watts’ assessment of the danger the Applicant poses to the Australian community, and the support it finds from Ms Paige.
Whilst I was, frankly, surprised by the evidence that acceptance of offending is of very little moment in the assessment of ongoing risk in the context of this matter (if I accept Dr Watts’ evidence) or of no moment (if I accept Ms Paige’s evidence), there is no evidence before me to the contrary and I accept the expert evidence of Dr Watts in this regard.
The Applicant submits that the following factors demonstrate that she is not a danger to the Australian community:
(a)Her genuine remorse, insofar as she acknowledges the harm caused to the victims and has worked extensively on understanding the impact of her behaviour;
(b)Her efforts at rehabilitation, noting that she has participated in various rehabilitation programs, including a substantial sex offender program in prison. These include the Sex Offender Treatment Program at Karnet Prison Farm, the Rich for Life Restorative Justice Program, and Standing on Solid Ground Program. Since her release from the prison, she has been getting psychological therapy and trauma-informed care, which a focus on addressing the underlying issues and preventing re-offending;
(c)Her commitment to avoiding situations that could lead to future offending, including reducing exposure to environments where there could be risk of relapse;
(d)That she has additional therapeutic support available to her from Gender Diversity Services and ASeTTS, a counselling organisation;[27]
(e)The libido and performance reducing effect of her hormone therapy, which are now reduced to extremely low levels; and
(f)The expert evidence of Ms Paige and Dr Watts.
[27] Exhibit 1, p 598-9.
The Respondent refers to the Applicant’s varying positions in relation to her offending, including:
(a)At her criminal trial, her evidence was that she never rubbed or massaged the victims, and she maintained this position at sentencing;
(b)On appeal, the Applicant contended it was the sucking motion of the IPL device which created the sensation of being rubbed and she maintained she did not perform this;
(c)While in prison, and in participating in the Medium Sex Offending Treatment Program, the Applicant denied the offending, stating that she performed the massages to alleviate pain for the victims during the procedure;
(d)In statements to the Department, the Applicant stated that she was not permitted by her family and lawyers to put forward her gender identity and sexuality issues and, had it have been known before Court and jury, she would not have been found guilty; and
(e)In the Applicant's most recent statement dated 22 April 2025, she accepts she offended for the first time, but that she resiled from that to a degree, in evidence. Overall, the Applicant has been inconsistent, and her evidence was generally unreliable.
(f)The Applicant’s eventual acceptance that she may have had ‘subconscious intent’ for her offending seems to have come from the Applicant’s therapeutic relationship with Ms Paige and is troubling because it was inconsistent with Ms Paige’s evidence about how such subconscious intent is formed. It appears that the Applicant has latched onto this concept in the absence of her willingness to address the true position;
(g)That the Applicant’s lack of candour and her changes in evidence make the assessments made by Ms Paige and Dr Watts less inherently reliable.
I am satisfied that the level of probability that the Applicant will cause significant psychological harm to a member of the Australian community if she reoffends in a like manner (which is the only manner in which a risk is manifest) is sufficiently high to raise a genuine concern that she is a danger to the Australian community.
However, I am satisfied that Dr Watts’ assessment that the risk of such reoffending is exceptionally low should be accepted, despite the Applicant’s failure to fully accept her offending. I base that finding on Dr Watts’ factoring of that issue into his assessment; the environmental changes the Applicant has made to her work; the significant remorse that I accept she feels for the victims of the offences; the extensive therapeutic counselling she has received; and the significant physical changes brought about by the hormone therapies she has undertaken since demonstrating offending proclivities.
In assessing the combination of probability and consequence in the manner suggested by the majority in DMQ20, I have come to the conclusion that the Applicant does not pose a danger to the Australian community.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration with a direction that the Applicant satisfies the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth) and is not ineligible for the grant of a protection visa pursuant to s 36(2C)(b)(ii) of that Act.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Suthers.

.........[SGD]...............................................................
Associate
Dated: 3 October 2025

Date of hearing: 16 and 17 June 2025

Solicitors for the Applicant: IR Legal Pty Limited

Solicitors for the Respondent: HWL Ebsworth

Date of hearing:	16 and 17 June 2025
Solicitors for the Applicant:	IR Legal Pty Limited
Solicitors for the Respondent:	HWL Ebsworth