ZCYG and Minister for Immigration and Multicultural Affairs (Migration)

[2025] ARTA 493

ZCYG and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 493 (29 April 2025)

Applicant:ZCYG

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                 2024/6105

Tribunal:General Member J Cipolla

Place:Sydney

Date:29 April 2025

Decision:The decision of the delegate of the Respondent dated 24 August 2024 to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa is set aside. The matter is remitted to the Respondent for reconsideration with a direction that the Applicant is not a person whom the Respondent considers, on reasonable grounds, having been convicted by a final judgement of a serious crime is a danger to the Australian community

……………[SGD]…………………………….

General Member J Cipolla

Catchwords

MIGRATION - cancellation of Applicant's Class BS Subclass 790 Safe Haven Enterprise visa - whether Applicant having been convicted of a particularly serious crime is a danger to the Australian community – weight of psychologist evidence against criminal antecedents – low risk of reoffending – decision set aside and remitted to the Respondent.

Legislation

Migration Act 1958 (Cth)

Child Protection Offenders Registration Act 2000 (NSW)

Cases

WKCG and Minister for Immigration and Citizenship (2009)

NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1

SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174 00818 v Minister for Home Affairs [2019] ASAT

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

DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550

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

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

HZCP v Minister for Immigration and Border Protection 2019 FCAFC 202

Statement of Reasons

BACKGROUND

1. On 21 August 2024 the Applicant applied to the Administrative Review Tribunal for a review of the decision made on 12 August 2024 by a delegate of the Respondent’s minister ('the Delegate') to refuse to grant him a Safe Haven Enterprise (Class XE) (Subclass 790) visa.

2. The basis of the visa refusal was that the Applicant did not satisfy the criterion in section 36(1C) of the Migration Act 1958 (Cth) (the Act). This criterion concerns whether the Applicant, having been convicted by final judgement of a particularly serious crime, is a danger to the Australian community. The delegate also decided that the Applicant was ineligible for the grant of the visa under s.32(2C)(b)(ii) of the Act. Section 32(2C)(b)(ii) of the Act concerns a criterion for a special category visa, specifically that the Applicant must not be a "behaviour concern non-citizen" or a "health concern non-citizen".

3. The Applicant is a stateless Rohingya from Myanmar who arrived in Australia as an unlawful maritime arrival on 30 April 2013.

4. On 12 June 2013 the Applicant was granted a Temporary Humanitarian Stay (Class UJ) (Subclass 449) visa, and as a consequence, the Applicant, was released from immigration detention as the holder of a Bridging E visa.

5. On 17 May 2017 the Applicant lodged an application for a Safe Haven Enterprise visa (SHEV).

6. On 25 December 2018 the Applicant engaged in criminal offending, namely sexual intercourse without consent against a 16-year-old female victim, offending that led to his arrest on 9 April 2019.

7. On 9 April 2019, a delegate of the Minister cancelled the Applicant's Bridging E visa under s.116 of the Act and, as a consequence, on 14 June 2019 the Applicant, was transferred from criminal custody to immigration detention.

8. The evidence before the Tribunal indicates that between the 20 and 29 October 2021 the Applicant was the subject of a trial in the District Court of New South Wales with respect to the sexual assault offending. During the District Court trial, the Applicant pleaded not guilty to the three charges contained in the indictment against him. On 29 October 2020, a jury found the Applicant not guilty of counts 1 and 2 of the indictment but found him guilty with respect to count 3.

9. On 20 May 2020 the Applicant lodged a second application for a SHEV visa.

10. The Department wrote to the Applicant with respect to the lodgment of 2 SHEV applications and invited him to withdraw one, the Applicant elected not to do so.

11. On 23 June 2020 the Applicant was interviewed by a delegate of the Minister with respect to his SHEV applications which were based on the same protection claims and according to the Departmental decision record were assessed identically.[1] 

    [1] T-Documents, page 14.

12. On 5 March 2021, the Applicant was sentenced in the District Court of New South Wales to 6 years and 6 months imprisonment for the sexual assault offence for which he had been convicted. The Applicant pursued an appeal to the New South Wales Court of Criminal Appeal, which was dismissed by that Court on 17 February 2023.

13. On 12 August 2024, a delegate of the Minister refused to grant the Applicant a SHEV visa. The delegate was satisfied that the Applicant was a stateless Rohingya from Myanmar, and that the Applicant was a person in respect of whom Australia had protection obligations under s.32(2)(a) of the Act. However, the delegate was satisfied that the Applicant, having been convicted by final judgement of a particularly serious crime, was a danger to the Australian community and that the Applicant did not satisfy the criterion in s.36(1C) of the Act.

    Relevant Provisions of the Migration Act 1958

14. Section 36 of the Act relevantly provides as follows:

    (1A) An applicant for a protection visa must satisfy:

    (a) both of the criteria in subsections (1B) and (1C); and

    (b) at least one of the criteria in subsection (2).

    (1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

    (1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

    (a) is a danger to Australia’s security; or

    (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

    Note: For paragraph (b), see section 5M.

    (2) A criterion for a protection visa is that the applicant for the visa is:

    (a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

    (b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

    (i) is mentioned in paragraph (a); and

    (ii) holds a protection visa of the same class as that applied for by the applicant; or

    (c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

    (i) is mentioned in paragraph (aa); and

    (ii) holds a protection visa of the same class as that applied for by the applicant.

    (2A) A non‑citizen will suffer significant harm if:

    (a) the non‑citizen will be arbitrarily deprived of his or her life; or

    (b) the death penalty will be carried out on the non‑citizen; or

    (c) the non‑citizen will be subjected to torture; or

    (d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e) the non‑citizen will be subjected to degrading treatment or punishment.

    (2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    Ineligibility for grant of a protection visa

    (2C) A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

    (a) the Minister has serious reasons for considering that:

    (i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

    (ii) the non‑citizen committed a serious non‑political crime before entering Australia; or

    (iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

    (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.

15. The decision of the Honourable Justice Kyrou, President of the Administrative Review Tribunal, in WKBF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728 (13 November 2023) provides guidance with respect to a determination of the issues raised by s.36(1C)(b), namely, whether a person having been convicted by final judgement of a particularly serious crime, is a danger to the Australian community. At paragraph 17 Justice Kyrou notes that:

    The serious consequences for the individual of a finding that they are a danger to the Australian community mean that some rigour must be applied in assessing the evidence relevant to the determination of those issues to ensure that such a finding is not made based upon the simplistic notion that individuals who have a long criminal record are necessarily a danger to the Australian community. A careful, evidence-based approach is required in each case rather than a generalised approach which is predisposed to a finding that persons who persistently commit crimes - and who can be described as not being /aw-abiding- should not be permitted to remain in Australia. Section 36(1C)(b) does not involve such generalised or abstract notions. Nor is it concerned with whether a person is of bad character. Rather, it refers to particular types of offences and a particular type of consequence. Accordingly, it requires close attention to the nature of the offences that an offender has committed - and all other relevant information - and a careful assessment of whether the offender constitutes a danger to the Australian community.

    Applicants Statement of Facts, Issues and Contentions

16. The Tribunal received the Applicants Statement of Facts, Issues and Contentions (SFIC) dated 16 November 2024 which it has duly considered.

17. The SFIC makes reference to the decision under review and provides a summary of the Applicant's life in Myanmar and Australia. The submission makes reference to the Applicant's offending history and to his current circumstances. The submission notes that the Ministers delegate found that the Applicant engaged Australia's protection obligations under both ss 36(2)(a) and 36(2)(aa) of the Act.

18. The SFIC notes that the first issue that the Tribunal is required to determine for the purposes of the review before it under s 36(1C) of the Act is whether on reasonable grounds, the Applicant is not a person whom, having been convicted by final judgement of a particularly serious crime, is a danger to the Australian community. The submission notes that the second issue for the Tribunal to determine under s 36(2C)(b) "is whether the Applicant would be ineligible for the grant of the SHEV if, on reasonable grounds, the Tribunal finds that the Applicant, having been convicted by final judgement of a particularly serious crime (including a crime the consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community".

19. The SFIC notes that the Tribunal's task is twofold namely whether the Applicant has been convicted by final judgement of a particularly serious crime and if that is the case, whether the Applicant is a danger to the Australian community.

20. The Applicant's representative contends that the Applicant is not a person whom, having been convicted by final judgement of a particularly serious crime is a danger to the Australian community. The Applicant's representative posits that whether the Applicant is not a person who is a danger to the Australian community is a forward-looking task. The submission notes that the Applicant acknowledges the nature of the offence and accepts the seriousness of the offence. The submission posits that the Applicant's overall risk of reoffending is very low.

21. The SFIC makes reference to the origin of the test in s 36(1C) that originates from Article 33 of the 1951 Convention Relating to the Status of Refugees.       

22. The SFIC notes that a person convicted of a particularly serious crime is not necessarily a danger to the Australian community on the basis of their conviction as per SZOQQ v Minister for Immigration and Citizenship (2012) 200 FCR 174 at [52] which was cited with approval in 00818 v Minister for Home Affairs [2019] ASAT at [26].

23. The SFIC notes that ‘the task for a decision-maker is to assess the future conduct of the person and consider the possibility or probability of any threat’.[2].

    [2] WKCG and Minister for Immigration and Citizenship (2009) AAT 412 AT [26]

24. The SFIC notes that a primary consideration recognised in WKCG is ‘the risk of re­ offending and recidivism and the likelihood of relapsing into crime is a primary consideration’.

25. The submission made concedes that the Applicant's offending of sexual intercourse without consent for which the Applicant was convicted and sentenced on 5 March 2021 to a term of imprisonment of six years and six months, with a non-parole period of three years and eight months was indicative of the fact that he has been convicted by final judgement of a particularly serious crime.

26. Having made this concession, the submission notes that the Tribunal's focus is to make an assessment of whether the Applicant is a danger to the Australian community. Reference is made to the decision of Justice Tamberlin in WKCG which outlined a number of considerations used in the assessment of matters under S.36(1C) of the Act. Reference is also made to the decision of Justice Kyrou in WKBF which provides a useful summary of the recent case law and guidance on the assessment of matters under s.36(1C) of the Act.

27. The submission notes that the Applicant has only been convicted of a single offence and that there is no lengthy criminal history for the Tribunal to consider. The submission notes that the Tribunal's task is prospective in nature and should not solely focus on the seriousness and nature of the Applicant's offence. The submission posits that the second relevant consideration with respect to the Applicant's risk of reoffending better informs the Tribunal in its task of assessing any danger to the Australian community.

28. With respect to this the Applicant is reliant on the expert opinion of Ms Bostock, a forensic psychologist, who in assessing the Applicant has provided two separate assessments with respect to his risk of recidivism generally, and secondly with respect to the Applicant's risk of sexual recidivism. The submission notes that Ms Bostock found that the Applicant has a low risk of reoffending generally and with respect to sexual recidivism falls into the category of very low risk. The submission notes that Ms Bostock's assessment concluded that the Applicant at the time of her assessment was suffering with no significant mental health disorders. Ms Bostock found that the Applicant did not have any symptoms of post­ traumatic stress disorder, which had previously been diagnosed, and believed that the symptoms had subsided as a consequence of the Applicant's engagement with psychological intervention through the STARTTS (survivor of torture and trauma service) and the Smart Recovery Program.

29. The submission also notes that the Applicant is the subject of further protective factors whilst in the community as he is overseen by his strict parole conditions as well as his oversight under the Child Protection Offenders Registration Act 2000 (NSW) (CPOR Act) under which the Applicant is subject to a reporting period of 15 years. The submission refers to the Applicant's strict parole conditions which are lengthy, and which include additional conditions requiring the Applicant not to drink alcohol, if directed to attend CSNSW psychology, to comply with all conditions and requirements of the Child Protection Register and to submit to the supervision of Community Corrections in New South Wales.

30. In conclusion the submission notes that the Applicant acknowledges the nature of the offending and accepts that it is a serious offence. The submission notes however, that the Tribunal should closely consider the expert opinion of Ms Bostock which finds that the Applicant's risk of reoffending falls into the low range and his risk of sexual reoffending falls in the very low riThe Applicant's representative contends that these factors along with the Applicant's parole conditions and his strict obligations under the CPOR Act provide further protective factors and based on this evidence contends that the Tribunal should find that "the Applicant is not a person whom, on reasonable grounds, having been convicted by final judgement of a particularly serious crime, is a danger to the Australian community".

    Respondents statement of Facts, Issues and Contentions

31. The Tribunal received the respondents SFIC dated 17 December 2024, and has duly considered the SFIC.

32. The respondent provides a background history with respect to the Applicant's arrival in Australia on 30 April 2013, and his immigration history from that point. The respondent also provides a history of the Applicant's offending committed on 25 December 2018, and culminating in his sentencing in the District Court of New South Wales to a period of six years and six months imprisonment for the offence of sexual intercourse without consent against a 16-year-old female victim.

33. The submission notes that the issues for determination by the Tribunal are whether the Applicant has been convicted by a final judgement of a particularly serious crime and if so whether he is a danger to the Australian community. The submission notes that a "serious Australian offence" is defined in s 5 of the Act as follows:

    "serious Australian offence" means an offence against a law in force in Australia, where:

    (a)  the offence:

    (i)  involves violence against a person; or

    (ii)  is a serious drug offence; or

    (iii)  involves serious damage to property; or

    (iv)  is an offence against section   197A or 197B (offences relating to immigration detention); and

    (b)  the offence is punishable by:

    (i)  imprisonment for life; or

    (ii)  imprisonment for a fixed term of not less than 3 years; or

    (iii)  imprisonment for a maximum term of not less than 3 years.

34. The submission notes that the Applicant has been convicted of sexual assault in the District Court of New South Wales on 5 March 2021 and his appeal against conviction was dismissed by the New South Wales Court of Appeal on 17 February 2023. The submission notes that the Applicant's offence involved violence against a person and that the sentencing judge noted that it was a "forceful sexual assault" and "there is inherent violence involved in the non-consensual sexual penetration". The submission states that "the Applicant has been convicted by final judgement of the serious Australian offence as defined in s 5 of the Act, and thus convicted of a particularly serious crime under s 5M for the purposes of s 36 (1C)(b) of the Act", something that the Applicant had accepted in their SFIC at [56].

1. With respect to consideration of whether the Applicant is a danger to the Australian community the submission makes reference to the decision of DP Tamberlin in WKCG and Minister for Immigration and Citizenship (2009) 110 ALO 434 AT [25] in which DP Tamberlin identified some relevant considerations to which regard may be had when determining whether a person by virtue of being convicted of a serious crime, is a danger to the community. These considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed or any mitigating or aggravating circumstances; the criminal record as a whole, including the nature and extent of prior crimes and the period over which they took place; the risk of reoffending and recidivism and the likelihood of relapsing into crime and the prospects of rehabilitation. The respondent submits that this is not taken to be an exhaustive list but provides a useful guide to the task before the Tribunal in the review before it.

2. The Minister contends for a number of reasons that there are reasonable grounds on which the Tribunal could consider that the Applicant is a danger to the Australian community and will remain so for the reasonably foreseeable future.

3. The submission makes direct reference to the sentencing remarks with respect to the Applicant's offending which indicates that the victim was 16 years of age, that alcohol was involved and that the sexual assault occurred without warning and was violent. Further, that the Applicant proceeded to have sexual intercourse with the victim without her consent, did not use a condom and ejaculated inside her and then threatened the victim not to tell anybody or he would go after her family and kill her. The submission posits that the circumstances around the Applicant's offending should be viewed as a very serious.

4. The submission notes that the Applicant had not raised any mitigating circumstances that were present at the time of the sexual assault offence. The submission notes that the sentencing judge in the District Court noted in her comments that the Applicant had experienced some trauma in Myanmar as a Rohingya Muslim as well as suffering workplace injuries in Australia which when combined, had an adverse psychological impact on the Applicant and that the Applicant may have been suffering from an adjustment disorder or post-traumatic stress disorder at the time of the offence. The submission notes however, that there was no evidence to demonstrate there was any mental health condition affecting the Applicant at the time of the offending that compromised his cognitive functioning such, that he would have lacked awareness of his actions and their consequences with respect to the victim.

5. The submission notes that there are a number of reasons that the Tribunal should find that the Applicant remains a real risk of reoffending, and that his prospects of rehabilitation are limited and that he is a clear and present danger to the Australian community. Firstly, that the Applicant remains an untreated sexual offender. Secondly, that the Applicant has engaged in a continued pattern of denying and downplaying his offending by insisting that the sexual assault was in fact consensual, and that the victim initiated the contact. The submission notes that as recently as May 2022, the Applicant insisted that despite his conviction that the sexual intercourse was consensual.[3] (Further to this that the Applicant blamed alcohol for his offending.

   [3] Respondent’s Tender Bundle, TB2, page 37.

6. Thirdly, the Applicants continued minimisation of responsibility, which was indicative of a lack of the Applicant's insight into his offending behaviour.

7. The submission notes that the Tribunal should not be satisfied that the Applicant presents no danger the community because of the fact that 'he does not have any significant criminogenic factors', and that there has been a lack of engagement by the Applicant in appropriate treatment, and an ongoing denial of the offending.

8. The submission notes that with respect to the Applicant being the subject of stringent reporting requirements due to the CPOR Act along with his strict parole conditions, that despite this oversight the Minister submits "that, in light of: (a) the Applicant's serious and appalling offending (b) his continued denial and downplaying of his offence; (c) his lack of insight and remorse for the offending, the Applicant presents a real risk of physical and psychological harm to members of the Australian community".

9. With respect to the fact that the Applicant is currently living in the community as the holder of a BVR the submission notes that the conditions of the Bridging visa will only continue to apply if the Applicant is refused the current visa and remained on a bridging visa.

10. The submission notes that the Tribunal's job is to evaluate the evidence before it and to reach a conclusion as to whether the Applicant is a danger to the Australian community. The submission notes that in the event that the Tribunal finds that the Applicant is a danger to the Australian community that discretion does not apply in its consideration, and it must affirm the decision under review.

11. In conclusion the submission notes that the Applicant has been convicted of a serious sexual assault of a 16-year-old girl. The Applicant has continued to downplay his offending and minimise his responsibility, blaming alcohol for the offending. The Applicant has displayed limited insight or remorse with respect to his offending. There has been no satisfactory explanation about why the Applicant ever offended. The Tribunal cannot be satisfied that the Applicant presents as no risk or indeed a remote risk of reoffending and that in these circumstances the Tribunal should be satisfied that the Applicant presents a danger to the Australian community, given the serious nature of the harm if the Applicant were to reoffend.

12. The Tribunal has received and considered the Applicant's submissions in reply dated 24 March 2025.

13. The submission notes that with respect to the concept of danger in section 36(1C)(b) of the Act that is "can be accepted that the Tribunal follow the plurality reason in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550".

14. The submission posits that danger can be considered with respect to two considerations "being the seriousness and nature of the offending, as well as the risk of re-offending".

15. The submission with respect to the respondent's SFIC notes that the evidence from the Department of Corrective Services should be given limited weight. The submission notes that the respondent was reliant on Corrective Services records which consisted of internal notes and hence were akin to 'hearsay' and could not be accepted as fact.

16. With respect to the Respondents submission with respect to reasons suggestive of the Applicant reoffending, the Applicant's representative noted they included the Applicant's pattern of denying and downplaying his offending behaviour, and the ongoing insistence that the offending was consensual. The Applicant's representative states that until the court made findings that the sexual assault was non-consensual "that the position was that the act was consensual".

17. The submission notes the length of time it took the Applicant to develop insight into his offending behaviour is explained in the report of Ms Bostock psychologist. Namely, that the Applicant was impacted by his traumatic childhood experiences and a lack of formal education which impeded his comprehension.

18. Further to this that the Applicant was given poor legal advice and did not understand the process and hence his plea of not guilty. The submission notes that it is a "mischaracterisation of the Applicant's evidence that he is apportioning blame to his legal representative in circumstances where he has consistently indicated that he has difficulty understanding the legal process and where the main issue before the Court was likely whether the sexual intercourse was consensual".

19. The submission notes that the Applicant at the time of the offending had been the participant of an Electronically Recorded Interview with Suspected Person (ERISP) and that the sentencing judge noted that the Applicant is recorded to have said that the sexual intercourse between himself and the victim was consensual. The submission notes that the ERSIP confirmed "that the Applicant believed the act was consensual and we submit that this was likely the issue to be determined by the Court".

20. The Applicant also provided the Tribunal with an updated statement dated 21 March 2025 which has been duly considered. The Applicant advises that the updated statement is supplementary to that provided on 15 November 2024. In his updated statement the Applicant explains that after he was released from immigration detention that he had to report to the police his parole officer and to the Department as a holder of a Bridging Visa R (BVR).

21. The Applicant explained that his BVR contained a lot of conditions including the imposition of a curfew and him having to wear an ankle bracelet. The Applicant stated that the ankle bracelet caused him pain and that it required to be charged twice a day for 1 hour.

22. The Applicant found after being released into the community he was able to find a job in due course to pay his rent and meet his cost-of-living expenses. He understood the need to resume counselling with a psychologist or counsellor and he noted that whilst detained he would see one every week.

23. The Applicant advised that in November 2024 he contacted STARRTS. He advised that he has been seeing a counsellor from this service for the past month and has had 3 sessions with the service to date. The Applicant also stated that he had saved up money for the Men's Behaviour Program however, when he called them in January 2025, he was told it was a program addressing domestic violence.

24. The Applicant stated that he had been living in the community for over 7 months and he has network of friends. He advised that he has been attending the mosque every one or two days and had been fasting during Ramadan.

25. The Applicant advised that he is still working as a laundry delivery driver 48 hours each week and that he likes his job which supports him and his family overseas. The Applicant stated that he had been able to buy himself a car.

26. The Applicant stated that he has strict reporting conditions to both the police and to his parole officer Laura.

27. The Applicant stated that the ankle bracelet has now been removed and that his reporting conditions to the Department have been reduced from every day to once a week on Wednesday's.

28. The Applicant's representative also submitted a reference from the Applicant's employer from Mr M dated 24 March 2025. The reference notes that the Applicant had been working for this employer since September 2024 and that "his work commitment is above and beyond our expectation". He is described as the most reliable driver in the employment of the business.

    REVIEW HEARING

29. The Tribunal conducted a review hearing on 1 April 2025 which resumed for a second day on 3 April 2025. The Applicant attended and was represented by Mr Pham and Ms Clinch from Legal Aid New South Wales. The Minister was represented by Mr Taverniti from Sparke Helmore Lawyers. The Applicant and the Tribunal were assisted by an accredited Rohingya interpreter on both days of the hearing.

30. At the outset of the review hearing the Tribunal went into considerable detail about the process of merits review, the respective issues. in the review and the prospective outcomes of the review.

31. The documents before the Tribunal were marked as follows.

    ·The Applicant's supplementary tender bundle was marked as Exhibit 1.

    ·The Applicant's submissions in reply was marked Exhibit 2.

    ·The Applicant's tender bundle was marked Exhibit 3.

    ·The Applicant's statement of facts issues and contentions was marked Exhibit 4.

    ·The Respondent's statement of facts issues and contentions was marked Exhibit

    ·The respondent's tender bundle was marked Exhibit 6.

    ·The T documents were marked Exhibit 7.

    ·An additional document, tendered at hearing tendered as the MFI transcript recording document was marked Exhibit 8.

32. At the outset of the review hearing Mr Pham took issue with a document at page 69 of the tender bundle which was a transcript of an electronic record of interview, an ERISP, that had been conducted with the Applicant at the Campsie Police Department on 6 February 2018 . Mr Pham noted that the cover sheet at page 69 which was a document certifying the record of interview was blank and was also unsigned by the Applicant. Mr Pham argued that the document at pages 69-131 should be excluded from the tender bundle. Mr Pham noted that there was a document preceding page 69 that had been omitted from the tender bundle which referred to "transcript recording". As explained above, the document was tendered and marked exhibit 8.

33. Mr Taverniti stated that the document that had been Marked Exhibit 8 had been omitted from the tender bundle but had subsequently been provided to the Applicant's representative.

34. Mr Taverniti noted that the basic proposition of merits review are that the rules of evidence do not apply in proceedings before the ART. Mr Taverniti submitted the Tribunal is entitled to take into account the relevance of the document in question. Reference to the sentencing comments of the District Court Judge with respect to the Applicant indicated that the ERISP had been conducted with an interpreter. Further that the Tribunal is entitled to apportion weight to the document and that the evidence indicates that the ERISP was clearly before the District Court. Mr Taverniti stated that the ERISP document had been with the Applicant and his representative for a considerable period of time. There is no evidence that the Applicant agrees or disagrees with respect to the contents of the ERISP. It was submitted that if the Applicant wished to take issue with the contents of the ERISP, given that there was a recorded version of the transcript, that it could have been scrutinised by another interpreter to ascertain whether it was accurate or not and this had not transpired. Mr Taverniti stated that in the Minister's submission there was no question with respect to the relevance of the document, it had clearly been considered by the District Court and it was invariably up to the Tribunal to determine what weight should be apportioned to it and that there was no basis to strike the document out summarily. Mr Taverniti noted that the ERISP was nothing other than what it purports to be. Mr Taverniti noted that the Minister does not rely on the document as evidence of what was before the court and that the Minister relies on the ERISP document as contemporaneous evidence of what happened at the time of the offending.

35. The Tribunal noted that the District Court Judge referred to the ERISP at page 205 of the tender bundle noting that "on 6 February 2019, the offender was arrested and participated in an ERISP with the benefit of an interpreter. Shortly stated, he admitted the penile­ vaginal sexual intercourse but said it was consensual".

36. The Tribunal agreed with the Minister's representatives submission that the document should not be excluded from the tender bundle. The document was clearly referenced by the District Court Judge in her sentencing comments at page 205 of the tender bundle. The sentencing comments indicated that the ERISP was conducted with the benefit of an interpreter. The Tribunal made reference to the Federal Court decision in HZCP v Minister for Immigration and Border Protection 2019 FCAFC 202 at paragraph 77 of the decision.

37. The Tribunal noted that HZCP involved a discussion of the authorities and principles relevant to whether the Tribunal may look behind or impugn the conviction or sentence. The Federal Court noted at paragraph 77 that "as a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of "another reason" on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function".

38. The Tribunal advised that it was not prepared to exclude document 69-131, the ERISP from the tender bundle. It had clearly been referenced by the District Court Judge in her sentencing comments and the interview with police had been conducted with an interpreter. The Tribunal noted that it was tasked with assessing the evidence before it and determining what weight should be apportioned to it.

39. The Tribunal noted that it was up to the representatives to make submissions to the Tribunal with respect to what weight should be apportioned to the ERISP.

40. The Applicant advised the Tribunal of his name and date of birth. The Applicant confirmed that he had provided two statements to the Tribunal in support of his review the first dated 25 November 2024 found at page 1 of the Applicant's tender bundle and the second dated 21 March 2025 found at page 1 of the Applicant's supplementary tender bundle. The Applicant confirmed that the statements were true and correct. The Applicant advised that he had an interpreter read the statements back to him. The Applicant stated that he was not able to read English.

41. The Applicant stated that he was born in Burma but did not have citizenship in that country. In terms of his education the Applicant completed school in year five when he was around 12 or 13 years old. The Applicant stated that after school he helped his father who was a shopkeeper. The Applicant advised that he maintained this employment until he was married and that he was married soon after he turned 18.

42. The Applicant advised that he came to Australia on 23 March 2013 when he was little more than 30 years old. The Applicant advised that he was now 42 years old. The Applicant advised that after he arrived in Australia he was initially held in the Darwin Detention Centre for around 2 ½ months and that after he was released from detention in Darwin that he was sent to a hotel in North Melbourne for around 2 weeks. The Applicant stated that after this he moved to Sydney. The Applicant advised that he had no family in Australia. The Applicant advised that his wife's name was MB and that he had five children with her one of whom had passed away. He advised that his children were aged 21, 19, 17 and 15. The Applicant stated that his family had resided in Burma but in 2017 they relocated to Bangladesh where they currently reside.

43. The Applicant stated that when he initially arrived in Australia he worked as a labourer in a meat factory in Wagga Wagga and that he retained this job for around 3 ½ months working eight hours a day for five days a week. The Applicant advised that the job consisted of packing boxes of meat. The Applicant stated that he stopped working for this employer because there were no people in Wagga Wagga of his ethnic background and that there were no halal goods available. The Applicant stated that as a consequence he moved to Sydney and that he obtained work as a cleaner in a bakery. The Applicant stated that he worked in this job for six days a week for eight hours a day, that the bakery was located in Marrickville and that he worked for this employer until 2019. The Applicant advised that after this he worked in the prison kitchen during his period of incarceration and that his duties involved cooking meat and fish in the oven. The Applicant stated that he worked between five and six hours each day. The Applicant stated that after he was released from prison and transferred to the Villawood Detention Centre that there was no work available to him in the detention centre. The Applicant advised that he was released from detention on 14 August 2024.

1. The Applicant stated that since he was released from immigration detention that he has worked as a delivery driver for a dry cleaning business. The Applicant described the work as 'hard' as he had to load and unload a truck with cleaning items and that the packages ranged in weight from 5-15 kilograms. The Applicant stated that he worked five days a week for eight hours a day and that his boss Mr R had provided evidence with respect to his work performance.

2. The Applicant confirmed that the offence that led to his imprisonment occurred in late 2018. The Applicant confirmed that prior to this offence that he had no offending history. The Applicant confirmed that with respect to the offending that it occurred on 25 December 2018 and as per his statement he "went to a small party in a park. I was there with a friend, the victim and her friend. We shared a bottle of vodka and we were drunk. My memory of the evening is not very good. I sexually assaulted the victim this night".

3. The Applicant was asked how his offending would have affected the victim. The Applicant stated that his offending would have affected the victim's mental health, her future, her general health and her friends, and that he was only now able to ask for forgiveness.

4. The Applicant was asked what the word 'rehabilitation' means. The Applicant advised "how to learn what has happened not to happen again, how to cope, how to behave with females and how to work with dignity of females".

5. The Applicant was asked whether he remembered speaking to Ms Delphine Bostock a psychologist. The Applicant stated that he recalled his first session went for around 2-3 hours and that he had engaged in two more sessions with Ms Bostock of around 1 to 2 hours duration. The Applicant confirmed that he was assisted by an accredited interpreter during these appointments. The Applicant was asked why he had engaged with a psychologist. The Applicant stated to have counselling with respect to the victim and counselling with respect to the crime, how to integrate with the community and how to respect the community and how to relate to his own family".

6. The Applicant was asked whether he spoke with the psychologist about his mental health and he advised that he did. The Applicant was asked what he spoke with the psychologist about, and he advised the victim of his offending. The Applicant was asked whether he spoke about his own mental health, and he advised that he did with respect to how to manage his mental health and his mental health symptoms.

7. The Applicant was asked about his recent engagement with STARRTS. The Applicant confirmed that he had started with this service and that his interactions were going well. The Applicant advised that the sessions with STARRTS were conducted on the telephone.

8. The Applicant was asked by the Tribunal about his understanding of STARRTS. The Applicant stated they provide support to people affected mentally and try to support the person and that they can write a report.

9. The Tribunal asked the Applicant whether the service was directed at any specific group in the community or anyone with mental health problems and the Applicant stated that he believed that they could help anyone with mental health problems and that they were a mental health service provider.

10. The Applicant was asked what he did in his spare time and he advised that he would stay at home not doing anything apart from cooking and eating. The Applicant stated that sometimes he would go to the coffee shop, sometimes he would go to a restaurant with friends and then come back home. The Applicant confirmed that as a Muslim he prayed on a daily basis and that he attended his local mosque in Lakemba. He would attend on his own with friends.

11. It was noted that the Applicant in both his statements advised that there are a number of things that he had to commit to in the community since he had been released from prison. It was noted the first of these commitments was to the Parole Authority of New South Wales. The second of these was with respect to the Child Protection Register and that the third was with respect to the conditions attached to his BVR.

12. The Applicant advised that his parole conditions were going well and that initially he would have to meet with Laura, his parole officer, once a week, then every two weeks and now it had been reduced to once a month. The Applicant advised that Laura works with him to help monitor issues in the community and to ensure that he is doing 'alright' in the community and that he is not using drugs or alcohol.

13. With respect to the child protection register the Applicant advised that this was going well and requires him to commit to a number of things. This included staying away from child care centres, staying away from schools, staying away from young children and ensuring that the police are notified of a change of address or a change of mobile number.

14. The Applicant advised that with respect to his BVR he had to wear an ankle bracelet and was subject to a curfew and that both of these conditions had been removed. The Applicant stated that initially after being issued with the BVR that he had to report every day but currently he is only required to report once a week every Wednesday by telephone.

15. The Applicant was cross-examined by Mr Taverniti. Mr Taverniti advised the Applicant that he wanted to focus on the period around the end of 2018 with respect to the Applicant's personal circumstances at that time. The Applicant confirmed that he was living in Lakemba with his uncle NO. The Applicant advised that he lived with NO from the time that he relocated from Wagga Wagga. The Applicant confirmed that he lived with NO up until the time of the offending and that there were four people living in the apartment, it was a two-bedroom apartment and that he shared a room with his uncle and two friends of his uncles resided in the other room. The Applicant confirmed that he was working in a bakery in Marrickville at this time and that NO assisted him in obtaining the position. Mr Taverniti asked the Applicant whether NO was supportive to him since he had been living in Sydney and the Applicant confirmed that he was. He advised that NO would assist him with money, helped him with accommodation and assisted him with his accommodation needs when he was released from the Villawood Detention Centre.

16. The Applicant advised that NO's wife came from overseas to Australia and he moved out of the accommodation just prior to her arrival. The Applicant stated that NO still provided support to him but he has young children, so the Applicant does not go to his home. Mr Taverniti asked the Applicant what help NO continued to provide to him and he advised encouragement to pray regularly to ensure that the Applicant was mixing with good people and to keep a check on the Applicant's behaviour.

17. Mr Taverniti noted that the Applicant worked at the bakery when he was charged and arrested and the Applicant confirmed that this was the case. Mr Taverniti noted that the Applicant in his 2024 statement advised that he really enjoyed working at the bakery and that he worked five days a week. The Applicant stated that he actually worked six days a week in the bakery for 8 hours a day and that he would have Sundays off.

18. Mr Taverniti asked the Applicant what he did on weekends. The Applicant advised he stayed at home, and he would visit friends. The Applicant advised that after he separated from living with his uncle that he took out a lease for residential premises in Lakemba until he went to jail.

19. Mr Taverniti noting that the Applicant was with his uncle from 2017 to the date of his arrest asked whether he lived with other people beyond this time and the Applicant confirmed that the premises in Lakemba was a share accommodation arrangement with three other men. The Applicant advised that the men were all Rohingyas.           

20. Mr Taverniti made reference to the events of Christmas Day 2018. On that day he planned to go out with a friend Shamsul and that he knew Shamsul as he was from his father-in-law's village. The Applicant confirmed that he knew him in Burma and reconnected with him in Australia. The Applicant described him as a friend and that he had spent time with him from 2017. Mr Taverniti asked the Applicant what he and Shamsul would do together as friends. The Applicant stated that when they did not have work commitments they would catch up that they would have a beer or cook a meal together. The Applicant stated that he would have a beer with Shamsul a few times a week normally consisting of 2 Corona beers.

21. Mr Taverniti noted that  25 December 2018 the Applicant went out with Shamsul and asked the Applicant whose idea it was to go out, the Applicant advised it was Shamsul's along with M and the victim. The Applicant described M and the victim as friends of his and that he had spent time with them prior to the events of Christmas 2018. The Applicant stated that prior to the offending the victim had attended his home on one occasion along with her friends. The Applicant confirmed that he had only spent time with the victim on the one occasion prior to the events of Christmas 2018. Mr Taverniti asked the Applicant whether he considered the victim to be a friend and he advised that he did.

22. Mr Taverniti asked the Applicant what the plan was with M and the victim and Shamsul. The Applicant stated to buy some alcohol, to buy some chicken from the shops and to go and sit in the park and drink and eat.

23. Mr Taverniti asked the Applicant whether during the time he spent with the victim he came to learn that she liked women. The Applicant stated that he did not know about this. Mr Taverniti asked the Applicant whether he knew the victim was a lesbian. The Applicant stated that he did not. Mr Taverniti asked the Applicant whether he knew that the victim was 16 and the Applicant stated that he did not know that and that he later came to know this fact from the court. Mr Taverniti asked the Applicant when he found out the age of the victim and the Applicant stated when the police arrested him and at the court.

24. Mr Taverniti asked the Applicant what made Shamsul, M and the victim and the Applicant decide to go to a park. The Applicant stated that Shamsul and M and the victim decided to go to a park and the Applicant was told about the plan. Mr Taverniti asked the Applicant whether after picking up a bottle of vodka and some chicken the group went to a park and the Applicant confirmed that they did.

25. Mr Taverniti stated the next questions he wished to pursue related to the findings of the sentencing judge in her sentencing report from paragraph 201 onwards. Mr Taverniti asked the Applicant when he met up with M and the victim and whether they appeared to be impacted by alcohol and the Applicant stated that they did not. Mr Taverniti asked the Applicant whether they drank the vodka and Coca-Cola from plastic glasses and the Applicant advised that they were drinking from plastic cups but also directly from the vodka bottle the Applicant stated that the group engaged in drinking and ate their chicken purchased from the Lakemba shops.

26. Mr Taverniti noted that at one point the Applicant spoke to Shamsul in his own language Rohingya. The Applicant advised that he does not speak English. The sentencing comments indicate that Shamsul told the Applicant that he had to speak with M and the Applicant spoke to the victim. Mr Taverniti asked the Applicant whether he remembered this chain of events. The Applicant stated that it was a long time ago but he is not denying it.

27. Mr Taverniti asked the Applicant whether he spoke with M and the victim, and the Applicant stated that he could not speak English that he could say 'hello', 'how are you' and 'I like you'. Mr Taverniti noted that the Applicant appeared to communicate with the two females in the group in basic English and the Applicant confirmed he did. The Applicant was asked whether Shamsul spoke English and the Applicant confirmed that Shamsul's English was better than his.

28. Mr Taverniti noted that the sentencing comments indicate that at this point the Applicant went over to a bushy secluded area of the park with the victim. The Applicant stated that they only had a little bit of vodka left in the bottle and that it was a standard 750ml bottle of vodka. The Applicant stated that he sat opposite the victim and confirmed that it was only himself and the victim together at the time. Mr Taverniti noted that the sentencing comments indicated that without warning the Applicant grabbed the victim's throat. The Applicant stated that he could not recall. Mr Taverniti noted that the Applicant could recall sitting with a woman in a bushy area of the park but not grabbing her throat. Mr Taverniti asked the Applicant whether he denied grabbing the victim's throat. The Applicant stated "I'm not denying I'm taking full responsibility I cannot remember what happened from there". Mr Taverniti noted the sentencing comments indicated that the Applicant pushed the victim to the ground so she was on her back and the Applicant stated "yes I cannot recall". Mr Taverniti noted that the sentencing comments indicated that the Applicant pinned the victim's arms down with his knees and the Applicant stated "I cannot recall".

29. Mr Taverniti asked the Applicant whether somebody had told him to answer that he could not recall. The Applicant stated, "I have no one to tell me anything like that".

30. Mr Taverniti noted that the sentencing comments indicated that the Applicant using one hand covered the victim's mouth and the Applicant stated, "I cannot recall".

31. Mr Taverniti asked the Applicant whether he could remember pulling down the victim's pants and forcing his penis into her vagina. The Applicant stated that he could recall having sex with the victim and that Shamsul told him this and that he could not recall doing things forcibly on her. The Applicant during repeated questioning with respect to this advised that he could not recall. Mr Taverniti asked the Applicant whether he could only recall what Shamsul had told him. The Applicant stated that he accepted having sex with the victim, he told this fact to the police, and he accepts that he consumed alcohol. Mr Taverniti asked the Applicant whether he was saying in his evidence that he sexually assaulted the victim because of his drinking and the Applicant stated, "yes I was drunk". Mr Taverniti asked the Applicant what he meant by drunk the Applicant stated, "the offence what happened I had been drinking alcohol, before that I had no offence like that".

32. Mr Taverniti asked the Applicant what he meant by drunk and the Applicant stated "I don't know the details of being drunk".

33. Mr Taverniti asked the Applicant whether he did what he did to the victim because he drank alcohol. Mr Taverniti noted that the Applicant advised the Tribunal that he had committed the offence because he was drunk and asked the Applicant what he meant by drunk. The Applicant stated, "when I drink alcohol, I feel not normal things happened when I was not feeling normal".

34. Mr Taverniti asked the Applicant whether he could recall asking the victim whether she wanted to have sex with him, and he advised that he could not remember. Mr Taverniti asked the Applicant whether he could remember not using a condom and the Applicant stated "I don't know". Mr Taverniti asked the Applicant whether he knew what a condom was and he advised that he did. Mr Taverniti asked the Applicant whether he had ever used a condom before and the Applicant stated that "prostitutes have shops and I used a condom there a long time ago on one or two occasions going with a friend, maybe in 2017". Mr Taverniti asked the Applicant how many times he had seen a prostitute and he advised "not much- two times".

35. The Applicant's representative Mr Pham questioned the relevance of this offending. Mr Taverniti stated that the questions were relevant and are referenced in the respondent's SFIC. Mr Taverniti noted that this was an Applicant who comes before the Tribunal on the basis that he poses little or no risk of further offending and what he did on the evening of Christmas 2018 came within the ambit of serious offending. Mr Taverniti stated there appeared to be no reasons for the Applicant's criminal offending. The very real issue was why the Applicant did what he did. Mr Taverniti stated that the Applicant's sexual desires and impulse control were relevant to whether the Applicant would engage in further sexual offending. The Tribunal advised that it had no objection with respect to this line of questioning.

36. Mr Taverniti noted that the Applicant recalled using condoms in the past when he had sex with prostitutes and the Applicant stated "yes I recall I just told you". Mr Taverniti asked the Applicant whether he visited the prostitute with friends. The Applicant stated that people from his country went to the shops where the prostitutes worked, and he went along with them and that they were all of Rohingya backgrounds.

37. Mr Taverniti noted that the evidence indicated that the Applicant was willing to go and see a prostitute and asked why this was the case. The Applicant stated that he had heard that people went to see prostitutes to have sex for one hour at a cost of one hundred dollars and he went along with them and decided if he was happy he would go inside the shop. Mr Taverniti asked the Applicant whether he had sex with them and the Applicant stated "yes I told you two times and yes I knew condoms from this".

38. Mr Taverniti noted that the Applicant mentioned that he knew about condoms from going to see prostitutes and noted that the Applicant wore the condom's while seeing the prostitutes and the Applicant stated that he did and that the prostitutes provided the condom. Mr Taverniti asked the Applicant whether it was his decision to wear a condom and the Applicant stated, "no they put a condom on by themselves and they remove the condom from you". Mr Taverniti asked the Applicant why they made him wear a condom and the Applicant stated, "I don't know".

39. Mr Taverniti commented "you don't know why they made you wear a condom" and the Applicant stated "I think that maybe when I ejaculated semen it does not go into the vagina". Mr Taverniti noted that the prostitutes more likely than not did not want the Applicant to ejaculate inside them and the Applicant stated "maybe because of disease".

40. Mr Taverniti asked the Applicant whether he knew that condoms prevented pregnancy and prevented disease and the Applicant confirmed that he did.

41. Mr Taverniti asked the Applicant before he went to see the two prostitutes in 2017 whether he had sex with anybody else in Australia since arriving in the country and the Applicant stated that he had not. Mr Taverniti confirmed with the Applicant that since arriving in Australia until 2017 he had not engaged with sex, and the Applicant confirmed that he had not. Mr Taverniti asked the Applicant whether he wanted to have sex with anybody and he advised that he did not. Mr Taverniti noted however that in 2017 the Applicant did, and he advised that was the case. Mr Taverniti asked the Applicant whether he knew what changed. The Applicant stated "that time I wanted to have sex but now that is already gone". The Applicant continued "I did the offence and went to gaol, so I accept it is a big mistake from my side. I am in a very good country after that I went to prison, I change myself, I don't want to have sex anymore".

42. Mr Taverniti noted that in 2017 the Applicant decided to have sex on two occasions with prostitutes after not having sex for four years Mr Taverniti asked the Applicant whether he wanted to have sex at this time because he had not engaged in sex for a long period of time. The Applicant stated that he cannot recall why he had the sex because he was also having alcohol in 2017. Mr Taverniti asked the Applicant whether he was blaming alcohol for going to a prostitute. The Applicant stated, "before that I have never done things like that".

1. Mr Taverniti asked the Applicant whether going to prostitutes had anything to do with his sexual desires. The Applicant stated that he had alcohol and was wanting to have sex and people told him about the shops and he went with them. Mr Taverniti noted that this evidence suggested that the Applicant had a sexual desire because he drank alcohol and the Applicant confirmed that this was the case.

2. Mr Taverniti asked the Applicant whether he had sexual desires when he did not drink alcohol. The Applicant stated that after he got married, he cannot have sex with another woman it was a big sin. Mr Taverniti noted however, that this did not stop the Applicant from having sex with the prostitutes or the victim. Mr Taverniti asked the Applicant again whether he had sexual desires when he did not drink alcohol and the Applicant stated "no desire".

3. Mr Taverniti noted that the Applicant's evidence indicated that he did not want to have sex with anyone unless he consumed alcohol, Mr Taverniti asked whether this included his wife. The Applicant stated that he had sex with his wife and added "how do you think we have children".

4. Mr Taverniti stated that he was not interested in whether the Applicant had sex with his wife, but was more interested in his sexual desire. The Applicant stated "I had desire before but not now. I married to my wife. After I came to Australia, I consumed alcohol in 2017 and I went to see prostitutes". Mr Taverniti asked the Applicant whether since that time he had no sexual desires at all and the Applicant stated that he did not. Mr Taverniti noted that this was apart from Christmas Day 2018. The Applicant stated that after this incident he has no desire for sex.

5. Mr Taverniti noted that the Applicant had given evidence to the Tribunal that 2 to 3 times a week he would have a couple of Corona beers with Shamsul. Mr Taverniti asked the Applicant whether he wanted to have sex after having a Corona and he advised that he did not.

6. Mr Taverniti asked the Applicant when he has sexual desires because he had told the Tribunal that it is after consuming alcohol and that he had given evidence that he drinks a few beers regularly. The Applicant stated "it doesn't mean you want to have sex every time you have alcohol".

7. Mr Taverniti put to the Applicant that he was using alcohol as an excuse. The Applicant stated "yes, I did offend I take full responsibility for what I did wrong".

8. Mr Taverniti advised that with respect to the Applicant's sexual desires he had one question to clarify. Mr Taverniti asked the Applicant whether his sexual desires related to having sex with other women or only with his wife". The Applicant stated that when he got married he only had sex with his wife. The Applicant stated that alcohol only started after he arrived in Australia, and he was ashamed and embarrassed that alcohol had gone terribly wrong for him.

9. Mr Taverniti asked the Applicant whether, when he consumed alcohol, his desires to have sex with other women also included a desire to have sex with his wife. The Applicant stated that if his wife was here there would be no need to have sex with other women.

10. Mr Taverniti asked the Applicant what he was thinking of when he had sex with other women and the Applicant stated "I was thinking about my wife and feeling very happy".

11. Mr Taverniti noted that the Applicant had given evidence to the Tribunal that when he consumed alcohol in Australia he had sexual desires and the Applicant stated "no that is not correct".

12. Mr Taverniti stated that the Applicant's evidence indicated that he only had desires when he had alcohol and asked the Applicant what his desires were about. The Applicant stated that when he went to the shop for prostitute's he had no intention to have sex with other women. Mr Taverniti asked the Applicant who he was intending having sex with. The Applicant stated that when he was at the shop there was a prostitute available at the shop and he was not breaking the law and was engaging in sex legally.

13. Mr Taverniti asked the Applicant when he had these desires under the influence of alcohol whether he wanted to have sex with prostitutes but not with other people and the Applicant advised "no".

14. Mr Taverniti asked the Applicant how he knew that having sex with prostitutes at the shop was legal. The Applicant stated that he had heard about some people going to the shop and that they are licensed premises, and that you may pay for sex. The Applicant stated that if it was illegal, it would not be possible to do this.

15. Mr Taverniti noted that with respect to the offending of 25 December 2018 the Applicant's evidence indicated that he knew that a condom should be used to prevent pregnancy and disease yet the Applicant chose not to use a condom when he sexually assaulted the victim. The Applicant stated that "there was no decision with respect to what I decided as I was not aware of what happened at the time I had to accept what the court said about this".

16. Mr Taverniti asked the Applicant whether he accepted that he decided not to use a condom. The Applicant stated "whether to use or not use a condom I was not aware at that time and because what has happened I came to learn what happened".

17. The Tribunal noted that to engage with sexual activity with another person requires a degree of consciousness in order to perform the sexual act, and that the Applicant's evidence suggested that he was so adversely affected by alcohol he was not aware. The Applicant stated "yes I know".

18. Mr Taverniti asked the Applicant whether at the time he performed the offending act whether he thought about getting the victim pregnant and the Applicant responded, "yes I know".

19. Mr Taverniti noted that the Applicant's evidence indicated that he was aware of the fact that not wearing a condom on 25 December 2018 could result in pregnancy. The Applicant advised that he was not saying that. The Applicant advised that he knew that it was a possibility that the victim could fall pregnant and he knew that he could pass on a sexual disease, but he did not think about this because he was drunk and affected by alcohol".

20. Mr Taverniti noted that the sentencing judge in her sentencing comments at page 214 of the tender bundle noted that the Applicant had threatened to kill the victim if she told her family. The Applicant stated that he could not remember. Mr Taverniti continued that the Applicant had threatened to kill the victim and told her not to tell anybody what he had done. The Applicant stated "maybe this was possible from the influence of alcohol I'm not blaming the victim".

21. Mr Taverniti asked the Applicant whether he accepted or denied threatening to kill the victim. The Applicant stated that he accepted the allegation and that what he has done is totally wrong. Mr Taverniti asked the Applicant whether he accepted that he committed an offence and the Applicant stated that he accepted that he did.

22. Mr Taverniti noted that the Applicant was arrested by the police on 6 February 2019 and asked the Applicant whether he remembered being interviewed by the police. Mr Taverniti noted that the interview was conducted at the Campsie Police Station that it commenced at 2pm in the afternoon and went for about 3 hours. Mr Taverniti asked the Applicant how many police officers were in the room at the time of the interview, and he advised 2 police officers.

23. Mr Taverniti asked the Applicant whether he remembered what he told the police during the interview with respect to the offence. The Applicant stated that he had never had trouble with the police in the past and he cannot recall what he said given the passage of time.

24. Mr Taverniti made reference to page 101 of the tender bundle which referred to a copy of the police record of interview. The Applicant is recorded as saying "she started kissing me too, on my lips and she bite me too". Mr Taverniti refers to page 114 of the police record of interview noting that the Applicant said that he was 100% sure that the victim agreed to have sex with him otherwise she would not have gone to the bushy area with him. The Applicant stated that this is what the police wrote and that he was very frightened when he was interviewed by the police.

25. Mr Taverniti asked the Applicant whether he accepted what had been summarised by the police in the police record of interview and whether they were all lies and the Applicant stated they were. The Applicant added because if you admitted the truth of what you have done you would be in very great trouble. Mr Taverniti put to the Applicant "you thought that if you lied to police, you would get away with what you had done" and the Applicant said 'yes'.

26. Mr Taverniti asked the Applicant whether he had a lawyer representing him in the criminal proceedings and he advised that he did. Mr Taverniti asked the Applicant how he was able to obtain a lawyer. The Applicant stated that he had suffered a hand injury and had a compensation lawyer assisting him and that when he was in jail he contacted the compensation lawyer who referred him to see a lawyer with respect to the sexual assault matter.

27. Mr Taverniti noted that the Applicant is recorded as saying in his 2024 statement that the legal process was overwhelming and that he could not follow each aspect of the process and the Applicant confirmed that this was the case.

28. Mr Taverniti asked the Applicant what he meant by not following every detail. The Applicant stated that "actually after that incident it was very difficult, I had mental trauma I had to go to jail I thought I could die in jail, or my family could die".

29. Mr Taverniti noted that the Applicant plead not guilty to the offence of sexual assault without consent and the Applicant stated that he accepted this.

30. The Tribunal asked the Applicant about his criminal representation and the costs associated with the District Court proceedings. The Applicant stated that he paid $10,500 for a lawyer who assisted with his bail. The lawyer agreed to represent the Applicant in the criminal proceedings. The lawyer told the Applicant that the case against him was not strong and to plead not guilty in the Local Court. The lawyer advised the Applicant that he would most likely get one year in prison and advised him not to plead guilty. The Applicant stated that he sent the lawyer a voice message that he would plead guilty, and the Applicant stated within a few minutes the lawyer responded to the Applicant advising that the matter would be going to trial.

31. The Tribunal noted that the Applicant's evidence indicated that his lawyer did not follow his instructions and sought clarification from the Applicant. The Applicant stated that the lawyer sent him a message that he might get two years in prison and that they were going to discuss the Applicant's matter with the Department of Public Prosecutions. Ten minutes later the Applicant's lawyer sent him a message asking the Applicant whether he was going to plead guilty and the Applicant said that he sent a message back saying that he would. 10 minutes later the lawyer responded back to the Applicant advising that the matter would be going to trial.

32. Mr Taverniti asked the Applicant whether his lawyer deleted the message about pleading guilty. The Applicant stated that he was not sure if it was deleted or not deleted. The Applicant stated that maybe his SIM card was not working and that his SIM card had been confiscated by the police who also confiscated his phone.

33. Mr Taverniti asked the Applicant how his lawyer contacted him during this time when discussing whether to plead guilty or not guilty. The Applicant stated that at this time he was in the Villawood Detention Centre and a community representative provided him with an Optus mobile phone.

34. Mr Taverniti asked the Applicant whether it was true that he was contacting his criminal lawyer discussing whether to plead guilty or not guilty and part of these discussions occurred in immigration detention, furthermore whether the Applicant communicated with his lawyer via an Optus phone. The Applicant stated that his lawyer told him that he might get 2 years in prison consisting of 1 year in prison and 6 months on parole. The Applicant stated that his lawyer told him that he would have a discussion with the Department of Public Prosecutions. The Applicant stated that he was asked to send a message to the lawyer to plead guilty or not guilty and the Applicant responded that he would be pleading guilty. The Applicant stated that 10 minutes later he received a message from his lawyer advising that the matter would go to a jury trial.

35. The Tribunal asked the Applicant whether his lawyer ignored his message. The Applicant stated again that his lawyer had advised him that they were going to speak with the Department of Public Prosecutions and maybe these conversations were not successful

36. Mr Taverniti asked the Applicant whether he ever told his lawyer he intended to plead not guilty. The Applicant once again stated that his lawyer told him that the case against him was very weak and to plead not guilty in the Local Court at Burwood.

37. The hearing resumed on 3 April 2025. Mr Taverniti advised the Applicant that he wished to take evidence with respect to the Applicant's various court proceedings. The Applicant advised that he initially pleaded not guilty in the Burwood Local Court and that he was being held on remand at this time. The Applicant stated that 4 to 5 months later he advised his lawyer of his intention to plead guilty in the District Court after discussions with his lawyer.

38. Mr Taverniti asked the Applicant whether prior to pleading not guilty in the Local Court he had discussions with his lawyer about entering such a plea and the Applicant confirmed that he did.

39. Mr Taverniti asked the Applicant whether he told his criminal lawyer that he was guilty of the sexual assault and the Applicant advised that he told his lawyer that he had sexual intercourse with the victim. Mr Taverniti asked the Applicant whether he told his criminal lawyer that he forced himself on the victim and the Applicant advised that he did not. The Applicant stated, "I did not understand the consequences of the process and I did not say anything about forcing myself on the victim".

40. Mr Taverniti asked the Applicant whether he made a conscious decision to not tell his lawyer that he forced himself on the victim. The Applicant advised that it was not a conscious decision that he did not understand the consequences. The Applicant claimed that if he understood the consequences he would have told his lawyer.

41. Mr Taverniti asked the Applicant whether it slipped his mind to tell his lawyer about a crucial part of his offending. The Applicant stated "it is not that it slipped my mind I did not understand what was going on. I accept what happened. If I made the same mistake, you could hang me".

42. Mr Taverniti asked the Applicant whether he understood the difference between consensual sex and forcing yourself on someone. The Applicant stated that he did understand that but at the time of the offending he did not understand.

43. Mr Taverniti put to the Applicant that he was not telling the Tribunal the truth. The Applicant stated "I am telling the truth. I never had sex with anyone except my wife. However, this mistake happened with me. I did not understand the consequences of my action. I would like to make amends".

44. Mr Taverniti asked the Applicant whether he believed that consent is a small detail. The Applicant stated that he did not think that consent was a small detail, and that any life decision requires consent in any conscious decision.

45. Mr Taverniti asked the Applicant when he pleaded guilty in the Local Court at Burwood. The Applicant stated that he did not remember the date and time. The Applicant recalled being brought from the Silverwater Prison to the Burwood Local Court. The Applicant stated that after this time he was on bail so it must have been in that period.

46. Mr Taverniti noted that the Applicant was arrested in February 2019, and thus the Applicant not guilty plea would have been entered in 2019. The Applicant stated that he was arrested on 5 or 6 of February 2019 and that he pleaded not guilty around two weeks later.

47. Mr Taverniti asked the Applicant whether it was towards the end of 2019 that he was having discussions with his lawyer about intending to plead guilty. The Applicant stated that he could not be sure whether it was 2019 or 2020. He recalled having been in the Villawood Detention Centre for 20 months.

48. Mr Taverniti asked the Applicant whether it was before his District Court trial in October 2020 that he would have been having these discussions with his criminal lawyer. The Applicant stated 'yes'.

49. Mr Taverniti asked the Applicant what steps he took to communicate to his lawyer his intention to plead guilty. The Applicant stated that he was not sure of what steps he took and that it was a phase of 'regrets and guilt'. The Applicant stated that he thought he had committed a big crime and a sin and had not committed any crime during the course of his life. The Applicant stated that because of his conduct he took up the time of the judge and the lawyer. With respect to the victim that he raped that she was now living with the consequences and that he is seeking anything to make amends.

50. Clarification was made of the chronology of events from the time of the Applicant's arrest in February 2019. Discussion was had with respect to the various locations the Applicant was detained after his arrest. It was agreed that about 8 months after the Applicant's arrest and 4 months after he was granted Supreme Court bail that he appeared in the Burwood Local Court.

51. Mr Taverniti noted that it appeared then that it was after October 2019 that he had discussions with his criminal lawyer about pleading guilty.

52. Mr Taverniti asked the Applicant what steps he took with respect to communicating his intention to plead guilty to his criminal lawyer and whether it was just the one message sent to his lawyer. The Applicant stated that he sent one voice message to his lawyer after he realised the mistake he had made with respect to his offending and that he thought that this was a way of repenting.

53. Mr Taverniti put to the Applicant that he made up the story about contacting his lawyer to plead guilty. The Applicant stated that he received a text message from his criminal lawyer about whether he intended to plead guilty or not guilty because he could not write and that is why his lawyer advised him to send a voice message. The Applicant stated that he communicated his intention to plead guilty. The Applicant stated that after he did so he received a message from his criminal lawyer advising they were going to trial. The Applicant stated that he did not know what a trial was.

54. Mr Taverniti asked the Applicant whether he could recall seeing a psychologist in January 2021 while at Parklea prison. The Applicant stated that he did see a psychologist at this time. Reference was made to the report of Katie Martens a forensic psychologist dated 25 January 2021. Mr Taverniti made reference to paragraph 39 of Ms Marten's report in which the Applicant stated when discussing the offence that the sexual contact was consensual. The Applicant stated that when he was interviewed by the psychologist in Parklea prison that he did not have access to a Rohingya interpreter and that a Hindi interpreter was used. Mr Taverniti made reference to paragraph 2 of Ms Martin's report which indicated "I assessed Mr H on 19th January 2021 via Audio-Visual-Link between LSC Psychology Offices and Parklea Correctional Centre. I was assisted by Rohingya interpreter Ahsan Haque". Mr Taverniti asked the Applicant whether he remembered telling Ms Marten's that the victim had consented to sex and he advised 'yes'. Mr Taverniti noted that that was because the Applicant believed the victim provided consent. The Applicant stated 'it was a miscommunication I did not know how to frame my sentence. I did not know how to frame it from my side".

55. Mr Taverniti asked whether it was a miscommunication whether it was something that the Applicant should not have said and the Applicant stated "it was a slip of my tongue".

1. In terms of risk assessment Ms Bostock noted that this assessment "is a process by which the likelihood of the person committing further offences is determined. This determination is typically based on the evaluation and consideration of two types of risks-historical (static) factors; and dynamic factors. Static risk factors are unlikely to change (e.g age at first offence) whereas dynamic risk factors are typically considered areas of treatment need (e.g poor problem-solving skills; use of drugs etc.)."

2. Ms Bostock noted that she assessed the Applicant's risk of general reoffending using LS/CMI assessment (Level of Service/Case Management Inventory) which she described "as a quantitative survey of offender attributes and situations that provides information about the level of risk/need across eight domains. It is widely used to assess risk by corrections departments both nationally and internationally". Ms Bostock noted that the testing reliability in terms of its predictive validity was strong and that research to date supported the use of this testing with different minority groups and across different demographics.

3. Ms Bostock provided the results of the Applicant's risk assessment at paragraph 54 of her report located in the Applicant's tender bundle at pages 19-20. The testing was undertaken across eight domains. With respect to criminal history Ms Bostock determined that there was a very low risk with respect to reoffending. The basis for this assessment was that the Applicant had no juvenile convictions, there is only one incident of offending, and the Applicant has not reoffended. Further to this he had not been punished during his period of imprisonment or immigration detention for misconduct and had not breached the conditions of his parole or the requirements of him being on the child protection register.

4. With respect to education and employment there was a low risk. Ms Bostock noted that the Applicant's ability to participate in education had been limited. The Applicant had no behavioural difficulties in school and had never been suspended or expelled. He had demonstrated over time an ability to secure and maintain employment and he had never been fired from employment and had positive relationships with colleagues and supervisors.

5. With respect to family and marital factors there was a low risk. Ms Bostock noted that despite the fact that the Applicant had been separated from his wife and children for an extended period of time, he would attempt to make daily contact. He described his marriage as mutually supportive. The Applicant had noted that his parents were deceased, and he maintained contact with family overseas where possible.

6. With respect to leisure and recreation there was a medium risk. This risk factor considers boredom and hence a propensity to engage in anti-social behaviour. There was no evidence of the Applicant being engaged in recreational clubs or sport and the evidence from the Applicant was that he worked all week and attended the mosque and engaged with members of the Rohingya community.

7. With respect to companions there was a very low risk as the Applicant had a current social network, was prosocial, was not involved in criminality and none of his friends had a criminal history.

8. With respect to alcohol/drug problems a very low risk. The Applicant stated that he did not use drugs and had been abstinent from alcohol use since his arrest in 2019.

9. With respect to a pro-criminal attitude/orientation Ms Bostock determined that there was a very low risk. This was on the basis that there was an absence of angry and hostile feelings. The Applicant had accepted responsibility for his crime. The Applicant had expressed respect for the Australian legal system. The Applicant's time in prison had helped him to understand the law and the justice system and that the Applicant felt that his sentence was appropriate for his crime.

10. With respect to antisocial patterns Ms Bostock determined a very low risk. The Applicant did not express criminal attitudes or long-term patterns of generalised trouble that would be considered to be consistent with psychopathy.

11. Ms Bostock concluded that the Applicant's overall score on the LS/CMI was 6 which placed him in the low risk of reoffending. Ms Bostock noted that the Applicant's score was below 97.7% of incarcerated male offenders and 81.8% of community-based male offenders in the North American normative sample.

12. Ms Bostock administered testing with respect to the risk of sexual recidivism. The test administered was the Static-99R. Ms Bostock noted that this test was widely used and exhibited moderate predictive accuracy. The Applicant's score under this assessment tool was a below average risk for being charged or convicted of another sexual offence.

13. Ms Bostock also administered the STABLE-2007 assessment which was designed to measure dynamic risk factors related to sexual recidivism for adult men convicted of sexual offences against a child or non-consenting adult. Ms Bostock noted that the Applicant was scored in the low range of criminogenic needs of STABLE-2007.

14. Ms Bostock noted that STABLE-2007 can be combined with Static-99R in order to provide "a composite assessment of risk/needs and to produce estimates of sexual recidivism, sexual recidivism with sexually motivated breaches, violence recidivism and any criminal recidivism both with and without breaches". Ms Bostock noted that the Applicant's composite assessment placed him in the well below average range at Level 1 "with a five­ year predicted sexual recidivism rate of 3.4% meaning that out of 100 individuals with similar risk factors, approximately three are expected to be charged or convicted of a new sexual offence within five years". Ms Bostock noted that "individuals placed in Level 1 are considered Very Low Risk using the standardised risk level framework". Concluding that "most individuals placed in Level 1 are expected to desist from criminal behaviour, even without a correctional response".

15. Mr Taverniti during cross-examination of Ms Bostock at hearing asked Ms Bostock whether the Applicant had disclosed that he had visited a prostitute on a number of occasions to engage in sex. Ms Bostock advised that she had not been aware of this. Ms Bostock was asked whether this omission by the Applicant would cause her concern. Ms Bostock stated that it would not cause her concern even if it was repeat behaviour undertaken on a weekly basis and that she did not believe that it would change her assessment of the Applicant with respect to sexual recidivism.

16. In cross-examination by Mr Taverniti Ms Bostock gave evidence that the static and dynamic assessment tools that she had used placing the Applicant in the low range were valid with respect to the assessment of risk, and that this testing had been applied to a large pool of sex offenders consisting of 23,000 people. Ms Bostock also gave evidence in cross-examination with respect to the application of the risk assessment testing and the findings made at paragraph 54 of the report.

17. Ms Bostock was asked by Mr Taverniti about whether the testing took into account denial with respect to the offending. Ms Bostock gave evidence that denial was not a demonstrated factor in reoffending. By example Ms Bostock stated that if the Applicant claimed that his punishment was unfair and that Australian laws were stupid that this would lead to a higher score with respect to this consideration and that she placed greater weight on the facts and the respective conviction.

    OTHER PROTECTIVE FACTORS

18. Mr Pham has submitted at review that aside from the evidence of Ms Bostock with respect to risk assessment that there are multiple protective factors in relation to the Applicant's risk of reoffending in the community.

19. The first of these is that the Applicant has been the subject of strict parole obligations since his release from prison and that his parole conditions extend to at least January 2026. The Applicant is overseen by a parole officer Laura, and initially was required to engage with his parole officer weekly. However, this has now been reduced by Laura to once a month.

20. The second protective factor is that the Applicant is on the child protection register as a result of his offending, and this is in place until January 2026.

21. The third protective factor is that the Applicant is the subject of strict Bridging R visa conditions. Those conditions include that the Applicant must report to the Department as directed. The Applicant must not engage in violent or disruptive activities. The Applicant must notify the Department with respect to a change in residential address or a change in circumstances. That the Applicant must assist with the facilitation of his removal from Australia. The Applicant must obtain approval to work in certain occupations and must notify of a change in his employment details and must not engage in any activities prejudicial to national security. The Applicant must not acquire specified goods or to acquire goods or chemicals of a security concern. The Applicant must attend an interview with the Department when he is directed to do so. The Applicant must notify the Department of details of persons with whom he resides if he has been convicted of an offence that involves a minor. The Applicant must notify the Department with respect to travel, with respect to associations, and memberships, and contact with specified individuals and organisations. The Applicant must not perform work with minors, he must not approach a school or child-care centre, must not contact the victim or the victim's family members. The Applicant must notify of changes in personal details and changes in online names or profiles.

22. Mr Pham noted that when the Applicant was first released into the community, he was required to report to the Department on a daily basis between the hours of 8.30am and 2.00pm. The evidence indicated that condition 8401 had been varied so that the Applicant is now only required to report on Wednesdays between the above specified hours.

23. Mr Pham also submitted that consideration needed to be given to the fact that the Applicant prior to his offending on 25 December 2018 had no criminal antecedents, that the Applicant has been consistently of good behaviour since his offending and conviction and as noted the Applicant had served his lengthy custodial sentence and his period in immigration detention without any disciplinary issues. In addition to this the Applicant had been paroled at the earliest possible date.

    ENGAGEMENT IN A SEX OFFENDERS PROGRAM

24. Mr Taverniti has submitted that it is the Ministers view that the Applicant remains an 'untreated sex offender' as he has not to date, engaged in a sex offender's program and hence, this factor alone means that the Applicant is a "clear and present danger to the Australian community".

25. The Applicant gave evidence that he tried to engage in a sex offenders program whilst he was in prison, however he was told by prison authorities that he could not engage in this program.

26. This fact is corroborated in a report from Ella Young, a Corrective Services officer, already referred to and found in the respondent's tender bundle at TB2 page 15 which indicates under the paragraph 'Offence Related" that the Applicant "is not eligible for offence related interventions in custody".

27. During cross-examination of the Applicant by the respondent's representative at hearing, the Applicant was asked about his statement where he advised that he wanted to undertake a face-to-face course with respect to sexual offending. The Applicant confirmed that this was the case. The Applicant was asked whether he wished to take a course of this nature because he believed that he had a problem with sexual offending and the Applicant stated that he did not and that his lawyer had suggested it would be good for his future if he engaged in such a course.

28. The Applicant was also asked whether he believed he did not need to undertake sex offending rehabilitation. The Applicant's evidence at hearing was that whilst he was in prison he observed people undertaking courses with respect to sexual offending and that he enquired about attending such a course in jail but was not able to gain access to a course. The Applicant confirmed in his evidence that he had not undertaken a face-to-face sexual offending course since he had been released from custody but had undertaken a course with respect to sexual assault and had enquired about undertaking a course called Men Behaving Better. However, the Applicant had been advised that this course was more closely directed at domestic violence offending. The Applicant also confirmed that he had undertaken a sexual harassment course, and a course with respect to alcohol use and had also undertaken the Smart Recovery Program.

29. The Applicant reiterated in his evidence at the review hearing that he had made attempts to attend a sexual offending course whilst in prison, however no opportunity was made available to him, and the Applicant further advised that he believed that his attendance in such a course was 'essential'.

30. Ms Bostock was cross-examined by the respondent's representative with respect to the Applicant's engagement in a sexual offending program. Ms Bostock in her evidence advised that if a person is referred to a sexual offender's treatment program it is usually because they are deemed to be high risk. Ms Bostock identified that high-risk people fall into this category through strong criminal associations and drug use. Ms Bostock was asked questions with respect to paragraph 40 of her report noting that the Applicant had tried to enrol in a program to address his sexual offending while serving his prison sentence but had been advised by custodial staff that he could not. Ms Bostock confirmed in her evidence that the Applicant had tried to join the sexual offender's program in jail, however, he was not eligible to join the program because he was deemed to be a 'low risk' offender.

31. The Tribunal finds on the basis of the evidence before it that the Applicant attempted to engage in a sex offenders' program whilst in prison but was deemed ineligible to do so. This is confirmed in Ella Young's case note report of 22 July 2021 undertaken when the Applicant was in Cessnock jail.

32. This is also confirmed in the evidence of Ms Bostock who had extensive experience working in the corrective services environment and who confirmed that high-risk offenders were directed to sex offender's programs in prison whereas low risk offenders were ineligible to engage in such programs.

33. What is clear from the evidence before the Tribunal is that the Applicant has expressed an ongoing desire to engage in such a program. The Applicant has managed to engage with a legal representative to assist in the review before the Tribunal, and to engage with STARRTS and the evidence indicates that the Applicant through these resources should be able to be directed to an appropriate sexual offender's program in due course. The Tribunal also acknowledges the fact that the Applicant has recently been released into the community after an extended period in prison and immigration detention and has done his best to reintegrate into society after being in custody by obtaining employment and obtaining rental accommodation putting him on a stable trajectory in the community.

    CASE LAW

34. Both the Applicant's representative and the respondent's representative referred the Tribunal to various decisions of the AAT, the ART, and the Federal Court which provide direction and guidance to the Tribunal with respect to the task before it.

35. Both Mr Pham and Mr Taverniti agreed that the seminal decision with respect to the consideration of whether a person is a danger to the community is the decision of DP Tamberlin in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 (WKCG) which has been the subject of significant analysis and judicial discussion.

36. In considering the danger issue DP Tamberlin QC in WKCG stated that:

    "Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re­ offending and recidivism and the. likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community".

37. Reference was made to the decision of Logan J in the full Federal Court decision of 00818 v Minister for Home Affairs FCAFC 63 18 April 2019 who considered the comments of DP Tamberlin in WKCG. Logan J noted that:

    In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a "risk", perhaps small. In my view, read in context, "danger'' ins 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".

38. Reference was also made to the joint judgement of Thomas and Snaden JJ in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 which the respondent submitted provided a useful summary of the correct construction of s 36 (1C)(b) emerging from the caselaw.

39. The Tribunal has had regard to the decision in DMQ20 which provides some analysis with respect to the meaning of 'danger'.

40. Justices Snaden and Thomas note at paragraphs 106 and 107 that:

    DANGER"

    Neither the Act nor the Refugees Convention defines what is or is not within the concept of "danger". Insofar as concerns its incorporation within 36(1C)(b) of the Act, then, "danger" is a term of everyday usage, which should be understood to carry its ordinary meaning.

    Conceptually (at least for present purposes), "danger" is a function of probability and consequence. A person will pose a "danger" insofar as there is a 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 36(1C)(b) of the Act (and its analogue in Art 33(2) of the Refugees Convention).

41. Justices Snaden and Thomas drew the following conclusions with respect to the assessment of what does and does not constitute danger for the purposes of s 36(1C)(b) at paragraphs 117-119 in their judgement:

    From the above analysis, two propositions emerge.

    First, it is likely not possible-and much less is it advisable to attempt-precisely to define what does and does not constitute "danger" for the purposes of s 36(1C)(b) of the Act. It is a concept without technical meaning that falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given matter: Re WKCG and Minister for Immigration and Citizenship (20091 MTA  512; (2009) 110 ALO 434, 438 [25] (Tamberlin DP): LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [20191 FCA 1591; (2019) 167 ALD 17, 30 [57] (Jackson J). Perhaps like other indefinable concepts, one generally knows it when one sees it (to borrow from the famous observation of Mr Justice Stewart in Jacobellis v Ohio [19641 ussc 164: 378 us 184, 197 (1964): see a/so the observations of the Victorian Court of Appeal in R v Panozzo (20071 VSCA 245; (2007) 178 A Crim R 323. 340 [43] (Chernov and Redlich JJA and King AJA)).

    Second, whatever might be said of what does not fall within the conceptual limits of "danger", it is clear beyond doubt that the circumstances with which the present matter engages fall well and truly within them. The Tribunal concluded that "...there exists a present risk which is real, significant and serious, which is neither remote nor fanciful] that the [appellant] will cause physical harm and perhaps severe physical harm, or extreme emotional harm] in the present or the future..." The present appeal (leaving to one side the proposed additional ground that the court declined to entertain) does not seek to challenge that finding. Rather, the contention is put simply that it does not bespeak a risk of harm that is sufficient to constitute the appellant as a "danger" in the sense that that term is employed in s36(1C)(b) of the Act.

1. In OMQ20 the Appellant made reference to a number of scholarly articles on the exclusion provisions in the Refugees Convention such as the commentary written in 1963 by Professor Atle Grahl-Madsen, posthumously republished (or partly republished) in 1997 by the United Nations High Commissioner for Refugees and titled, "COMMENTARY ON THE REFUGEE CONVENTION 1951 ARTICLES 2-11, 13-37".

2. Justices Snaden and Thomas found the article to be instructive with respect to an assessment of what and what does not constitute danger at paragraphs 141 and 142 of their decision.

   The opinion of Prof Grahl-Madsen, in particular, is instructive. It notes that the commission of a single criminal act against a person to whom the perpetrator had a special relationship "will in itself not make a man a danger to the community". So much may readily be accepted. That proposition, though, is focused not upon the quality or universality of the harm that a refugee might inflict; but rather upon whether or not he or she might fairly be thought to pose a sufficient risk of inflicting it. Criminal behaviour properly described as aberrant or opportunistic might very conceivably be thought not to reflect a level of risk of repetition that is sufficient to constitute its perpetrator as a danger to the community. But the same might not be said of a recidivist offender-for example, one who has repeatedly partaken of criminal misconduct and presents as likely to embark upon similar misadventures in the future.

   As to the nature of the harm that a person must be at sufficient risk of inflicting in order to qualify as a danger to the community, the extra-judicial opinions to which the appellant refers are neutral at best; and, more likely, favour the construction of the phrase "danger to the Australian community" that the Minister advances. Again, Prof Grahl-Madsen's opinion is instructive. It contemplates that the danger might manifest in a refugee's propensity to "disrupt[] or upset[] civil life", including by means of crimes against individual victims, such as assault and kidnapping. Excepting degrees of seriousness, we do not understand either analysis to read in such a way as to reflect any limitation inherent in Art 33(2) of the Refugees Convention concerning the character of the potential harm that a refugee must be at risk of visiting in order that he or she might qualify as a "danger to the community".

3. The Tribunal has also had regard to the decision of DP Constance in NZYQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 378 (4 March 2022).

4. In the review before DP Constance the Applicant in that review sexually assaulted a boy aged 10 years who was known to him. The evidence in that review indicated that the Applicant had wanted to engage in a sex offenders' program and was on a wait list for such a program for 2-3 years whilst in prison. After being released from prison the Applicant was transferred to the Villawood Detention Centre and received some counselling in that facility but once again could not access a sex offenders' program.

5. A report by a clinical psychologist Ms Chamarette determined that the Applicant's risk of reoffending was low. This was disputed in a report by Ms Youssef a forensic psychologist who determined that the Applicant's risk of reoffending was 'above average'.

6. DP Constance found in this review that the Applicant's future accommodation and employment was uncertain. The Applicant demonstrated little insight into his offending behaviour. Further that it was regrettable that the Applicant had been unable to engage in a sex offenders' program and that "in circumstances where the Applicant is yet to commence treatment, there is a significant risk he may act on impulse should the opportunity arise." He also had regard to the competing evidence of psychologists presented to him. He went on to affirm the decision to refuse the Applicant's Safe Haven visa.

7. DP Constance in that decision made reference to the decision of the Member Eteuati in the Administrative Appeals Tribunal in HYTB and Minister for Immigration and Citizenship [2020] AATA 1967 at paragraphs 60-75 in which Member Eteuati conducted a review of the Federal Court authorities with respect to the concept of danger.

8. The Tribunal notes that this decision precedes the full Federal Court decision DMQ20 however it does, in the words of DP Constance, provide an overview of the "principles which are relevant to this application".

9. DP Constance noted that Member Eteuati at paragraphs 60-61 stated:

   ......... in order for a person to be a "danger" there must exist, at the time of the decision, a present risk which is "real" or "significant" or "serious" which is "neither remote nor fanciful" that the person will cause harm of a sufficiently serious nature (for example "of physical harm, or extreme emotional harm'') in the present or the future. If no such risk is present at the time of decision, it cannot be said that a person is a danger. Similarly, if a present risk of future harm relates to a harm which is insufficiently serious, for example a moderate risk of mere "upset" then the person will not be a danger. Conversely, if there is a low risk but one which is none-the-less "real" or "significant" or "serious" of particularly serious future harm, say grave physical injury, then that risk may be sufficient to determine that a person is a danger to the Australian community.

   Further, Member Eteuati referred to the following principles arising from the interpretations of the Courts and the Tribunal:

   subsection 36(1C) of the Act invests the Tribunal with a fact-finding function and not a discretion, the potential harm a person may suffer if deported from Australia is not relevant to the decision to be made under subsection 36(1C);

   "in determining whether a person in immigration detention is a danger to the community, the decision-maker is not restricted to considering the risk of harm that a detainee presents to those in immigration detention. The risk must be one that exists at the time of the decision, while the person is in immigration detention, but the risk of potential future harm extends to harm which may be caused to the community if the Applicant is released into the broader community."

10. The Tribunal has given careful consideration to all of the relevant facts and circumstances that have been presented to it in the course of this review and has had careful regard to the cited authorities.

11. There is no doubt in the view of the Tribunal that the offending conduct engaged in by the Applicant on 25 December 2018 was serious. The District Court of New South Wales found that the Applicant did have sexual intercourse with the victim without her consent and knowing that the victim did not consent to the sexual intercourse. The victim of the offending was 16 years old at the time.

12. The Applicant has given divergent accounts with respect to whether or not, in his view the offending was consensual. Despite his divergent accounts the District Court found otherwise with the jury returning a verdict the Applicant had sexual intercourse with the victim without her consent.

13. Substantial discussion has been hard during the course of the review hearing with respect to the Applicant's denials with respect to the offending behaviour. The Tribunal has been directed to a range of literature with respect to denial and insight.

14. The Tribunal finds that the report by Ms Bostock dated 14 November 2024 is comprehensive and compelling and the Tribunal has given significant weight to the report. The Tribunal notes that apart from having qualifications as a forensic psychologist Ms Bostock worked for an extended period as a specialist psychologist within the Department of Corrective Services in New South Wales in their sex offenders program, and that she has expertise in the provision of treatment for mental health conditions and sexual offending behaviours. This make her eminently qualified in respect of her assessment of the Applicant who is a convicted sex offender.

15. At the time that Ms Bostock conducted her assessment she found that the Applicant accepted responsibility for his criminal offending and expressed respect for Australian laws. Ms Bostock noted that the Applicant during his time in prison had learnt about the law and the justice system and the Applicant felt that the sentence that he received with respect to his offending was appropriate. These views were expressed as a consequence of an interview conducted with the Applicant on 5 November 2024 at which time Ms Bostock was assisted by an accredited Rohingya interpreter.

16. The Tribunal has made reference to the report of Ella Young a Corrective Services Officer based on an assessment conducted with the Applicant in Cessnock jail on 22 July 2021 with the assistance of an interpreter. During that interview in July 2021, the Applicant expressed that he believed his sentencing was fair. That he realised that he had done the wrong thing. That the Applicant had been using alcohol and was unable to restrain himself in the state that he was in but believed he should pay for the crime. The Applicant further stated that his offences are against his religious beliefs and that what he engaged in was considered to be adultery.

17. In the view of the Tribunal the evidence provided to Ms Young in July 2021 and the evidence provided to Ms Bostock in November 2024 is corroborative of the Applicant's state of mind with respect to a reflection of his offending behaviour at two points in time and the Tribunal gives these assessments significant weight. The Tribunal also notes that some assessments conducted with the Applicant whilst he was in prison were conducted without a Rohingya interpreter and in one instance an assessment was conducted with a Hindi interpreter. The Tribunal finds that assessments undertaken without an interpreter or with a non-Rohingya interpreter are unsafe and should not be given any weight.

18. The Tribunal finds that the offending was serious and a clear abuse of trust. The Applicant has served a lengthy prison sentence as a consequence if his actions. The Applicant during the period of his incarceration did not commit any disciplinary infractions either in prison or whilst in immigration detention.

19. The respondent's representative has suggested that the Applicants risk of engaging in dangerous behaviour is heightened by the fact that he has not completed a sex offenders program. The evidence before the Tribunal indicates that because the Applicant was identified as being 'low risk' with respect to recidivism that he was not able to engage in a sex offenders' program in prison. The evidence indicates that the Applicant made attempts to engage in a sex offenders' program in immigration detention but was not able to engage in such a program. The evidence indicates that the Applicant has engaged in a number of useful self-help programs that have been discussed extensively in the course of this decision. The evidence further indicates that the Applicant has a desire to engage in a sex offenders program going forward and the Tribunal finds that the Applicant's commitment, with respect to this is genuine.

20. Ms Bostock in her assessment of the Applicant has found that there is a low risk of the Applicant engaging in further offending behaviour. These findings were made after the administration of a number of psychological tests which have universal application and have been based on studies of large cohorts of offenders and sex offenders.

21. With respect to the likelihood of the Applicant committing further offences having regard to static factors and dynamic factors the Applicant was placed in a 'low risk' range and with respect to the risk of sexual recidivism applying the Static 99-R test which has a moderate predictive accuracy that the Applicant was placed in level 1 and considered to be a 'very low risk' of reoffending with Ms Bostock noting that "most individuals placed in level 1 are expected to desist from criminal behaviour, even without a correctional response".

22. Mr Pham in his closing submissions to the Tribunal has highlighted other protective factors in place that include the fact that the Applicant is subject to oversight by the New South Wales parole authority until January 2026. That the Applicant is on the child protection register until January 2026. Further to this that the Applicant is subject to very strict conditions on his Bridging R visa which collectively in view of the Tribunal substantially mitigate the risk of reoffending.

23. The Tribunal notes that there has been no pattern of offending in the time that the Applicant has been in Australia apart from the one instance of serious offending behaviour of 24 December 2018.

24. The Tribunal notes that the Applicant is married and has four children who are currently displaced and living in Bangladesh. In the event that in the future the Applicant's family would be able to relocate to Australia, the Tribunal finds that this in itself, will act as further risk mitigation factor.

25. The evidence indicates that leading up to the offending the Applicant had engaged in alcohol use and on the night of the offending had engaged in alcohol use. The evidence presented to the Tribunal indicates that the Applicant since the offending behaviour has not engaged in alcohol use and according to his evidence does not intend to resume the consumption of alcohol.

26. The evidence before the Tribunal indicates that the Applicant has managed to find himself gainful employment with a dry cleaning business and the Applicant has provided a reference from his employer attesting to his work ethic and commitment to the job. The Applicant also has stable rental accommodation. This evidence is indicative of stable living conditions for the Applicant in the community with respect to stable housing and employment.

27. Having regard to all of these factors the Tribunal finds that "there is no present risk that is real or significant or serious or neither remote nor fanciful that the Applicant will cause harm of a sufficiently serious nature in the present or the future". (HYTB and Minister for Immigration and Citizenship [2020] AATA 1967 at paragraphs 64).

28. The Tribunal finds that the Applicant has been convicted by final judgement of a serious offence that of sexual assault without consent. The Tribunal further finds on the basis of the evidence that has been presented to it that the Applicant is not a danger to the Australian community.

    DECISION

29. The decision of the delegate of the Respondent dated 24 August 2024 to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa is set aside. The matter is remitted to the Respondent for reconsideration with a direction that the Applicant is not a person whom the respondent considers, on reasonable grounds, having been convicted by a final judgement of a serious crime is a danger to the Australian community.