1. In determining whether a person constitutes a danger to the community of Australia guidance is found in the decision of a past Deputy President of this Tribunal in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 ('WKCG'). In that decision, Deputy President Tamberlin QC established a multi-component test for assessing whether a person constitutes a danger to the Australian community. The components of that test compel the following assessments:

(1) the seriousness and nature of the crimes committed, the length of the sentences imposed, and any mitigating or aggravating circumstances;

(2) the criminal record in totality - including the extent and nature of any prior convictions and the period over which they took place;

(3) the risk of re-offending and recidivism and the likelihood of re-lapsing into crime; and

(4) any prospects of rehabilitation.[14]

1. In WKCG, Deputy President Tamberlin QC explained that whether a person is a danger to the Australian community is a question of fact and degree.[15] The learned Deputy President said the task for the Tribunal in answering this second question in s 36(1C)(b) is as follows:

'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.'

1. In DOB18 v Minister for Home Affairs [2019] FCAFC 63 ("DOB18"), Logan J explained that for s 36(1C)(b) to be made out, the Tribunal has to be satisfied that the Applicant 'is and will into the indefinite future be a danger, not that the person once was a danger.'[16] Logan J further explained that danger 'means present and serious risk.'[17] Beyond the factors identified in WKCG, I must also have regard to all substantial, clearly articulated and relevant contentions propounded by the parties[18].

The principles in Direction 75[19]

1. In considering an application for a protection visa, Direction 75 compels delegates to consider (1) whether an applicant meets the Refugee criteria in s 36(2)(a) of the Act; and (2) the Complementary Protection criteria in s 36(2)(aa) of the Act before considering the disqualifying criteria in ss 36(1C) and s 36(2C) of the Act or considering refusal on character grounds under s 501 of the Act.

1. Direction 75 can be differentiated from other directions such as Ministerial Direction 110 because it (Direction 75) does not bind the Tribunal for the purposes of merits review. Additionally, directions made pursuant to s 499 of the Act do not personally bind the Respondent. Therefore, the operative effect of Direction 75 does not extend to compelling this Tribunal to undertake its own assessment of whether this Applicant meets the Refugee criteria or the Complementary Protection criteria as a necessary precursor to considering the extent to which the disqualifying criteria in ss 36(1C) and 36(2C) apply to this Applicant.[20]

1. It is clear from the decision under review that the delegate acted in accordance with Direction 75 and made the necessary assessment about whether the Applicant met the Refugee Criteria and the Complementary Protection criteria prior to considering the relevant disqualifying criteria located in ss 36(1C) and 36(2C) of the Act. In terms of the first part of the delegate's analysis, the delegate was ".... satisfied that [the Applicant] is a refugee as defined by s 5H(1) of the Act"[21] and that the Applicant satisfied the Refugee Criteria in s 36(2)(a) of the Act.[22]

1. There was a similarly favourable finding that the Applicant met the complementary protection criterion appearing in s 36(2)(aa) of the Act. The delegate was "....satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the Applicant] being removed to Somalia, there is a real risk he will suffer significant harm as defined in s39(2)(aa) of the Act."[23] The delegate was satisfied that the Applicant "....is a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(aa) of the Act."[24]

1. As best as I understood their respective submissions, neither party agitated the delegate's findings in relation to either s 36(2)(a) or s 36(2)(aa) of the Act. Therefore, I will not predicate my findings about s 36(1C) of the Act on the basis of whether or not the Applicant satisfies the relevant criteria attaching to either of these elements.

1. The enactment of s 36(1C) of the Act represented the legislative codification of Article 33(2) of the United Nations Convention Relating to the Status of Refugees. This Convention was adopted in 1951 and was, in turn, amended in 1967 by the Protocol Relating to the Status of Refugees ('Refugees Convention').

1. The relevant components of Article 33 of the Refugees Convention comprise, firstly, Article 33(1) which says:

'No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'

1. And, secondly, Article 33(2) of the Refugees Convention which places limits on the extent to which a refugee can avail himself/herself of the grounds stipulated in Article 33(1):

'The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.'

1. At the time of the tabling of s 36(1C) before the Parliament, the relevant Explanatory Memorandum to the amendment intended by the introduction of this section said the following:

'The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement_, to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa. The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of 'refugee' but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa. This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.'[25]_

1. The then-Minister's Explanatory Statement noted that the introduction of s 36(1C) into the Act, created: '...a new, independent and self-contained statutory framework which articulates Australia's interpretation of its protection obligations under the Refugees Convention.'[26] The net effect of s 36(1C) is thus to replace the previous methodology of how a person was determined to be a refugee. Previously, such a determination was made by reference to the Refugees Convention. After the introduction of s 36(1C), that determination was able to be made without reliance on the Refugees Convention or any external interpretations of it.

1. The language appearing in, respectively, Articles 33(1) and (2) of the Refugees Convention requires a two-step determinative process when addressing the question of whether someone could be found to be a refugee. First, there had to be a determination of whether a person 'has been convicted by final judgment of a particularly serious crime'. If the answer to that question is in the affirmative, a second determination must then be made about whether that person constitutes a danger to the community. An identical two-step approach now appears in s 36(1C) in the determination of whether a person is excluded from the grant of a protection visa.

1. For this Applicant to be eligible for the grant of the Protection visa, he must negotiate the following sections:

(a) Section 36(1A)(a): the Applicant must satisfy the following criteria: > > > (i) pursuant to sub-section (1B) that the Applicant has not been assessed by the Australian Security Intelligence Organisation as a direct or indirect risk to Australia's security. The material contains no suggestion or assessment of the Applicant representing any such risk; > > > > 1. pursuant to sub-section (1C) that the Applicant is not a person whom the Respondent Minister considers, on reasonable grounds: > > > > 1. - pursuant to s 36(1C)(a) is a danger to Australia's security. There is no contention before the Tribunal that the Applicant represents any such threat; or > > 2. - pursuant to s 36(1C)(b), having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. > > AND > > 1. Section 36(1A)(b): for the grant of a Protection visa, the Applicant must satisfy one of the criteria in s 36(2). For present purposes, the material contains a Protection Visa Decision Assessment dated 21 October 2021 wherein a finding was made that the Applicant satisfies the criterion contained in s 36(2)(aa).[27] This Protection Visa Assessment also found this Applicant was a refugee within the meaning of s 5H(1) of the Act.[28] > 2. Section 36(2C): provides that the Applicant is not taken to satisfy the complementary criterion assessment contained in s 36(2)(aa) if, inter alia, pursuant to s 36(2C)(b), the Minister considers on reasonable grounds that: > > (i) the Applicant is a danger to Australia's security; or > > (ii) having been convicted by a final judgment of a particularly serious crime, the Applicant is a danger to the Australian community.

2. It will be noted that the two conditioning criteria in s 36(2C)(b) are substantially similar to those contained in s 36(1C). The only difference is that the second conditioning criterion in s 36(2C)(b)(ii) contains the words '...(including a crime that consists of the commission of a serious Australian offence or serious foreign offence)...' As mentioned earlier, there is no suggestion the Applicant has committed a serious foreign offence.

1. Therefore: (1) the same reply (and finding) I made for s 36(1C)(a) can be made for s 36(2C)(b)(i); and (2) the only residual issue for determination by this Tribunal seems to be that contained in ss 36(1C)(b) and 36(2C)(b)(ii), namely, whether the Applicant, having been convicted by a final judgement of a particularly serious crime, is a danger to the Australian community.

1. In Australia, it is well-settled that there are two separate sub-questions raised by s 36(1C)(b).[29] First, has the Applicant been convicted by a final judgment of a particularly serious crime? Second, if the first question is answered in the affirmative, does the Applicant represent a danger to the Australian community?

1. The first question can be essentially interpreted as a jurisdictional fact. If there is one serious Australian offence, then the second question - whether the Applicant is a danger to the Australian community - arises for consideration.

Sub-Issue 1: Has the Applicant been convicted by a final judgment of a serious crime?

1. The Applicant concedes he has been convicted by final judgment of a "serious Australian offence" as defined in section 5(1) of the Act by virtue of his respective two convictions for indecent assault in 2007 and 2017.[30] As such, this conduct is also definitionally captured as "particularly serious crime" by s 5M of the Act. It is therefore safe to find that the Applicant has been convicted by a final judgment of a particularly serious crime for the purposes of ss 36(1C)(b) and 36(2C)(b)(ii).

1. I will now turn to the second question contained in ss 36(1C)(b) and 36(2C)(b)(ii).

Sub-Issue 2: Whether the Applicant is a danger to the Australian community?

1. In SZOQQ and Minister for Immigration and Border Protection [2012] FCAFC 40; (2012) 200 FCR 174, the Full Court said s 36(1C) of the Act does not facilitate a 'balancing exercise' such as, for example, weighing the consequences of refoulement for an applicant to their country of origin against whatever danger that applicant might pose to the Australian community:

'[...] we see the language of Art 33(2), construed in the context of the Refugees Convention as a whole, as intractable. The ordinary meaning of Art 33(2) (subject to one matter) is clear. The benefit of the duty against refoulement in Art 33(1) cannot be claimed by a refugee if the circumstances specified in Art 33(2) are present. The structure and text of the provisions do not permit any balancing exercise.'[31]

2. For reasons that follow, I am of the view that an application of the four abovementioned considerations in WKCG to the instant facts necessarily results in a finding that this Applicant represents a danger to the Australian community. This finding will be principally based on an application of the four assessments stipulated in WKCG even though this list is not exhaustive. The concept of "danger" should, for present purposes, carry its ordinary meaning. Danger should be regarded as a function of (1) probability and (2) consequence.

1. In terms of the former, the Tribunal must determine whether there exists a sufficient risk, possibility or probability of harm. In terms of the latter, it is necessary to assess the consequential outcomes resulting from the danger, most usually comprising physical or psychological injury. When assessed together, the Federal Court has found these two concepts mean that the higher the probability of a person re-committing unlawful conduct, the less severe the consequences of that conduct might need to be for the purpose of assessing the extent to which that person now represents a danger to the Australian community.[32]

1. I will now turn to a discussion of the four assessments appearing in WKCG.

The seriousness and nature of the crimes committed, the length of the sentences imposed, and any mitigating or aggravating circumstances.

1. In addressing this first element, I make it clear that I will not be referring to or relying upon any conduct that did not result in a conviction. So for example, I will not take into account unconvicted conduct arising from whatever past Orders may have been made against this Applicant. I also think that the Applicant's contention to the effect that his conduct spawning the indecent assault convictions should somehow now be found to be relatively minor, is misplaced. The conduct giving rise to these convictions was a very direct and invasive intrusion into a victim's personal space. There is nothing relatively minor about grabbing a victim's breast or the rubbing of a victim's thighs in a non-consensual way.

1. The various contentions put on behalf of the Applicant about some type of categorization of his conduct are, with respect, very questionable. Issue is taken with the Respondent's contention that any non-consensual touching plainly violates a person's bodily integrity in a way which has real potential to inflict long lasting psychological harm on a victim. The Applicant urges this Tribunal to reject that contention. Instead, the Applicant contends that non-consensual touching occurs regularly in society and that crimes of assault and indecent assault both encompass a very wide range of seriousness. It is said by the Applicant that non-consensually rubbing a victim's thigh is in the minor or borderline category of seriousness while prolonged touching of another's genitals belongs in the high range of objective seriousness of such conduct.

1. To support these contentions the Applicant seeks recourse in the Supreme Court's finding that his indecent assault conduct was apparently a minor incident of assault and was largely a result of the Applicant's poor prognosis and before clinicians had properly identified any cognitive impairment. The Applicant contends the high-water mark of seriousness was reached in 2007 via his conduct involving him grabbing an adult victim's breasts over her clothing. This conduct is said to fall perhaps closer to the middle range of objective seriousness because (1) it was committed some 18 years ago and (2) it has not escalated in seriousness since then because his indecent behaviour in 2013 and his grossly indecent behaviour in 2014 were less serious than his 2007 conduct.

1. This line of contentions about the seriousness of the Applicant's conduct is, with respect, misplaced and a gross understatement of the impact of such offending on those who never consented to it and who otherwise had no warning of its perpetration. It is also an affront to those victims. These contentions seem to me to be based on a dangerous conflation between purely accidental or inadvertent touching or contact with what the Applicant actually did. I will illustrate my point thus: we have all at one time or another been passengers on a well-filled commuter bus where there is often standing room only. All too often we think we are stably positioned only for a sudden swerve or braking manoeuvre by the bus driver causing us to develop a sudden feeling not being so securely upright and, in a split second remedial effort to make ourselves stable, we suddenly reach out for a guard rail to our side or a grab-handle above our heads. While doing so we make contact with a fellow passenger.

1. Such contact is, of course inadvertent and accidental. Two emergent intervening factors spawned it: (1) the sudden braking or swerving manoeuvre of the bus and (2) our instinctively self-preservational impulse to avoid injury and restore our previously stable posture. There was no such intervening emergent agency behind any of the Applicant's conduct for present purposes. Nothing outside his control put him inside the personal space of his victims. He wanted to be in that space and, once there, he imposed himself on each victim be it by physically touching a female victim's breasts or by exposing himself to a victim in such a grossly indecent way. This is why it is (with respect) both absurd and irrational to now categorize this conduct as belonging to this or that range or category of seriousness. This line of contentions has no traction with me.

1. The other basis on which I will reject the Applicant's purported categorization of his conduct is because it ignores or seriously minimizes the potential of such conduct to cause harm to its victims. The essence of the submission is that the nature of the Applicant's offences are such that they are, if re-committed, unlikely to cause actual harm to anyone in the community. Apart from ignoring the genuinely real prospect of such conduct inflicting psychological harm on a victim, the contention ignores the actual basis of the conduct. For example, the Applicant very well knew the female victim of the breast-touching conduct and the victim of the penis-exposure incident each had a moral compass that excluded any tolerance for, or acceptance of, such conduct. The real basis and motivation behind his conduct in both instances was to deliberately corrupt those victims' sense of right and wrong by non-consensual perverted perversion.

1. The Respondent has identified three aggravating factors and one mitigating factor referable to the Applicant's offending.[33] The first of the aggravating factors is that he has shown little insight and remorse for his conduct and that he has failed to take personal responsibility for his conduct and has primarily attributed it to his historical difficulties with alcohol. Second, in terms of sentencing episodes, the Applicant's criminal history runs for just under 14 years and has seen him convicted for about 90 offences dealt with at 35 sentencing episodes. The sheer volume of his offending and the extent to which it has engaged the state's policing and judicial sentencing apparatus is, to my mind, an aggravating factor. Third, the Applicant's alcoholism is propounded as an aggravating factor with which I agree. The basis of this contention is that "....intoxication can be an aggravating factor where the offender is shown to have had foreknowledge of how he/she is likely to behave when affected by alcohol.[34] In the instant case, the Applicant very well knew he had offended while under the influence of alcohol on a significant number of occasions.

1. The sole genuinely mitigating circumstance around the Applicant's conduct is to be found in his difficult past life in Somalia and Kenya. The material records the Applicant "...was born in Mogadishu, Somalia in 1972. He has reported that he lived in Somalia until he was 20, before fleeing civil war to a refugee camp in Kenya. His father died in Somalia and, as far as he know, his mother still lives in Somalia. ... [The Applicant] has reported that he witnessed "things, the shit" during the Somalian civil war that he does not want to talk about."[35] And further, "It is clear that the [Applicant] has struggled to come to terms with aspects particularly of his early life. He is now 42. He arrived in this country in the mid-90's as a refugee from a very difficult past. He has virtually no education and that has led to him really being largely unemployable in this country."[36] In terms of the sentences imposed, while the criminal history contains reference to 11 sentences involving custodial time which is the last resort in the sentencing hierarchy available to a Court[37]. However, it should be noted those custodial sentences have been outnumbered by non-custodial sentences.

1. I am satisfied that each of (1) the nature and seriousness of the Applicant's unlawful conduct; (2) the extent of sentences imposed on him; and (3) the primacy of aggravating factors over mitigating factors apparent from his unlawful conduct, now render him a danger to the Australian community.

1. As mentioned, the majority of the Applicant's offences were not punished by sentences compelling him to serve custodial time. The Applicant contends that of the approximately 90 offences he has committed, only two of them are captured by the definition of a "particularly serious crime" while the rest of his criminality is not contemplated by s 36(1C) of the Act. The further contention from the Applicant is that the predominance of his offending is more in line with that of a chronically homeless person with unaddressed substance abuse issues as well as other and other mental health and cognitive impairment issues.

1. These contentions only assist the Applicant to a limited point. This second component of WGCG requires an assessment of the Applicant's criminal record "in totality". When viewed through this lens, it seems clear the Applicant has (1) offended frequently and, on occasion, quite seriously; (2) failed to respect the lawful authority represented by a Police officer or a lawfully made document compelling him to do or refrain from doing something; (3) failed to experience any form of deterrent effect from the sentencing regime progressively imposed on him for the just under 14 years of his offending; and (4) failed to address the factors underlying his criminality.

1. While it may the history of a troubled person, when viewed in its totality, it is also a very troubling history that is persisting and not dissipating. It is a history that has meandered its way into the realm of some quite seriously unlawful conduct with the very real prospect of harm to its victims. I am therefore satisfied when viewed as a whole, the Applicant's criminal history strongly supports a finding that he remains a danger to the community.

The risk of re-offending and recidivism and the likelihood of relapsing into crime

1. The Respondent says the abovementioned four assessments outlined in WKCG are not exhaustive and there is not otherwise anything compelling the Tribunal to slavishly follow them in reaching a finding about whether the Applicant now represents a danger to the Australian community.[38] While that may or may not be correct, the reality is that this third assessment (risk/recidivism/likelihood) is the primary assessment of the four WKCG assessments. I again refer to the two-part analysis of involving respective qualitative and quantitative assessments of a person's conduct as a means of gauging the danger they now represent to the Australian community. The Respondent neatly summarises this two-part analysis in these terms:

Most recently, the Full Federal Court considered what constituted a danger to the Australian community in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84; (2023) 297 FCR 550. In DMQ20, Thomas and Snaden JJ held that:

(a) Danger was a term of everyday usage and should carry its ordinary meaning: [106].

(b) Danger was 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 concepts may be measured along spectra: [107]. Put another way, there was both a quantitative dimension to danger (if there exists a sufficient risk, possibility or probability of sufficient harm - [109]) and a qualitative dimension to danger (a prospect of injury, most likely of physical or psychological kinds - [111]).

(c) The above quantitative and qualitative inquiries were related. The higher the probability of an event, the less severe its consequences might need to be for the prospect of its occurrence to qualify as a danger, and vice versa: [114].

(d) Danger presupposes that there should be something about a person's character or proclivities (or both) that suggests a probability and quality of harm to others that is beyond the typical consequences of its routine interaction. Ordinarily, that would fall to be assessed by reference to the person's prior conduct and the likelihood that it might be repeated: [115]-[116].

(e) Other than the above, it was neither possible nor advisable to precisely define what did and did not constitute danger: [118].

The reference to the Australian community in s 36(1C)(b) encompasses "any and all members of the population of Australia": DMQ20 at [127]. Put another way, the danger need not be directed at Australia's security or to the Australian community more broadly. Rather, a danger to individual members to the Australian community would constitute a danger to the Australian community: DMQ20 at [148].[39]

1. The spectral synthesis between probability and consequence lies at the heart of the Full Court's two-part test for the assessment of "danger" for present purposes. That synthesis is informed by the question of "......what combinations of probability and consequence should suffice to qualify as "danger" in the sense contemplated by s 36(1C) of the Act......"[40] As the Full Court also noted: "Future conduct [i.e "probability"] might be inconceivable, highly improbable, likely or certain (or any degree in between). The harm [i.e. "consequence"] that it might visit might range from minor to severe."[41]

Consequences arising from the Applicant re-offending

1. With reference to this first qualitative component of the two-part DSM20 analysis, all three main elements of the Applicant's contentions should be rejected. First, it is unsafe and to otherwise mis-understand the totality of his offending history to suggest (or find) that most of his past offending has been of a relatively low level of seriousness and, on that basis, any future offending he may commit should be now be found to be of a similarly low level of seriousness. This is to ignore the reality of the Applicant's demonstrable history of sexual offending which has not involved him, for example, sitting at home on a computer viewing disturbing images of children being abused. He has transgressed into the personal space of other people by make un-warranted and un-invited physical contact with those victims and otherwise unlawfully exposing himself while a proximal distance from them.

1. Second, it is not safe to suggest (or find) that he not a danger to the community simply because the current ESO will remain in place until 30 April 2027. The HRO Act facilitates a significant degree of discretion in a Court's capacity to grant, modify or extend any such order. It may well transpire that the ESO will not even remain in place until that time or that any future such order will be made. The Applicant's history of repeatedly breaching lawfully made instruments such as bail, bonds and different supervision orders means that his risk profile is not to any great extent (if at all) ameliorated by the imposition of such orders. It does not bode well for his danger profile for present purposes that as recently as November 2023 he was released into the community on a supervision order only to be returned to custody in the immediately following month of December 2023. Likewise, he was released on an ESO in early May 2024 only to be returned to custody less than two months later in June 2024.

1. Third, it is not safe to suggest (or find) that simply because the material does not contain victim impact statements or other evidence of psychological or other impacts experienced by victims, the Tribunal should not attribute any elevated likelihood to the Applicant re-offending. To my mind, the facts of the Applicant's sexual offending are self-explanatory. His sexual offending has involved acts of gross indecency carrying every prospect of harming a victim. This inference can be safely formed without a victim (or their clinician) describing the harm they suffered.

1. On this question, the Respondent has formulated a list of elements which, to my mind, convincingly facilitate a cohesive understanding of the evidence.[42] First, there is little or nothing to cavil with the proposition (and finding) that the Applicant's has a very poor level of insight into his offending. He has failed to comprehend the nature of some of his conduct as sexual offending. The evidence is opaque about his attitude towards rehabilitative therapy for this type of offending. On his version, he was either not offered such therapy or there was an administrative oversight in it being offered to him. On the Parole Board's version, he simply refused it. Second, a number of his breaches of lawfully made orders compelling him to do or refrain from doing something have been committed impulsively with little or no forethought about the consequences of any breach. This does not bode well in terms of his prospects of observing similar orders into the future.

1. Third, while both parties urged the Tribunal to approach the Applicant's evidence with caution given his neurocognitive disorder, one did not have to listen to the Applicant's evidence for too long to glean a distinct pattern of deception and evasiveness. Whatever neurocognitive dysfunction he may now have, he nevertheless had the capacity to (1) apprehend when his cross-examiner exposed illogicality and a lack of credibility in his answers and (2) how to contrive and fabricate a self-serving answer. For example, he sought to explain his presence at a tavern venue which his ESO prohibited him from attending on the basis of a taxi driver twice making a mistake by delivering to the wrong location. That evidence should be entirely discounted. Fourth, the Applicant cannot be heard to deny the historical link between his abuse of alcohol and his pattern of offending. Despite his claim to have been sober since mid-2017, the three realities are: (1) there is little or no clinical assurance in the material of his capacity to remain sober in the community where alcohol will be more freely available to him; (2) his claimed sobriety has occurred in the closed confines of prison and immigration detention; and (3) any alcohol rehabilitation he may have previously undertaken has not been successful. Fifth and allied to his history of abusing alcohol is the Applicant's history with cannabis use. While the Tribunal draws no adverse inference from the Applicant's right to invoke (as he did) his privilege against self-incrimination when giving evidence on this issue, his past involvement with using cannabis cannot be denied.

1. Sixth, the evidence confirms the Applicant does not have anything in the form of a supportive network in Australia such that would now speak favourably to his recidivist risk. While there is some reference to a sister-in-law and to some telephone contact with some of his family members, his behaviour seems to have distanced those potentially pro-social supports away from him. His contacts in Australia have primarily involved people who have had a negative, ant-social influence on him. The further difficulty is that, as noted by a Magistrate who sentenced him 10 years ago, he seems unemployable due to his lack of education and relevant qualifications. So there is little or no prospect of him developing any supportive network as a result of working with other people at a given workplace.

1. The support provided by Mr Fry from SYC is not clinical or for that matter necessarily pro-social. As best as I understood his evidence, Mr Fry's role (with respect) comprises a sort of "compliance officer" service or "box-ticking observer". Mr Fry plays no role in addressing the Applicant's criminogenic factors. He simply tries to make sure the Applicant attends a given appointment or otherwise meets certain requirements or completes certain tasks. Try as he may, there is no certainty Mr Fry's efforts will result in any positive outcome because the Applicant previously had the benefit of another community-based rehabilitation service but returned to a pattern of substance abuse-based offending. The further issue is that Mr Fry's service is not ongoing and will have an end point. The Applicant's life in this country has been predominated by a history of homelessness and unemployment. The learned Judge Brampton of the South Australian Supreme Court sentenced the Applicant in 2019. In her sentencing remarks, Judge Brampton had the benefit of a contemporaneous report from the Consultant Forensic Psychiatrist, Dr Paul Furst. Her Honour summarised Dr Furst's findings in these terms:

Dr Furst formed the view that [the Applicant] has been living from moment to moment, paycheck to paycheck, and that his life has revolved around drinking and homelessness. Dr Furst considered that, in view of the fact that [the Applicant] was intoxicated on each of the occasions he offended, his alcohol abuse is a significant factor in his offending in that he is more disinhibited and has less control of his sexual instincts when intoxicated. The fact that three out of four sexual offences have been committed on public transport suggested to Dr Furst that these offences are impulsive rather than pre-planned.

Dr Furst considered that [the Applicant's] risk of reoffending when sober is different. Dr Furst commented that, whilst [the Applicant's] history of minor offending puts him at increased risk of offending, when sober his risk of sexual offending would be significantly decreased.

Dr Furst raised a concern that if [the Applicant] were released into the community without any conditions that there would be a very high risk that he would return to his former lifestyle which would be fairly aimless, involve drinking a lot, with the "fairly high risk of similar type" offending. In this regard, Dr Furst considered that [the Applicant] meets the definition of unwilling. In relation to the question of whether [the Applicant] is incapable of controlling his sexual instincts, Dr Furst said that the more often [the Applicant] is highly intoxicated the higher the likelihood that he will offend sexually. Conversely, Dr Furst stated [the Applicant's] capacity to control would be the same as anyone else's, the more often he is sober and the more often he has a low level of intoxication.

Dr Furst advised that if [the Applicant] were to be released into the community, the first item to address would be his access to alcohol. If he were prohibited or prevented from accessing alcohol, his risk of intoxication and sexual offending would significantly improve.

However, Dr Furst said that it is just not access to alcohol that needs to be considered. There are a number of other interventions that are required to improve [the Applicant's] chances of maintaining abstinence.

It appears that [the Applicant] has led a transient and homeless existence for many years. As Dr Furst noted, [the Applicant] needs accommodation and to find things to occupy his day that do not involve drinking and riding aimlessly on public transport. Dr Furst stated that he needs to have a closely monitored, structured management plan in the community, incorporating rehabilitation in relation to both his sexual offending and alcohol use.[43]

1. Seventh, the Tribunal was urged to take into account the prospect of the Applicant NDIS supports and that this should now be found to speak favourably to his recidivist risk. I am of the view that the Applicant's prospects of being granted NDIS supports is of minimal relevance to this Tribunal's task of determining whether at the present time, or in the reasonably foreseeable future, he is a danger to the Australian community. Given his present via status, it is not at all clear that he would meet the criteria for any such supports. The access criteria for NDIS supports require the Applicant to be an Australian citizen, the holder of a permanent visa or to otherwise qualify as a protected special category visa holder.

1. As correctly noted by the Respondent,[44] the issue before the Tribunal is not to determine what can be done to not render the Applicant a danger to the Australian community. The Tribunal's task is to determine whether the Applicant presently represents such a danger. While this assessment may require some findings to be made about the reasonably foreseeable future, it does not facilitate a venturing into the realm of speculation about future circumstances for which there is no evidence. This is why any likelihood of an application for NDIS supports being approved should carry only, at best, minimal weight for present purposes.

1. Eighth, the Applicant does have a concerning history of breaching both supervision and other orders imposed on him He has breached both the ISO and ESO on more than one occasion and this has resulted in him being removed from the community for long periods of time. Despite proceedings in the Supreme Court and multiple interviews with the Parole Board resulting in a multiplicity of supervision orders which were presumably explained to him by those acting for him, his record of complying with those orders is poor. Allied to this are the further realities of the Applicant breaching bail conditions and good behaviour bonds.

1. Of significant concern are the Applicant's prospects of complying with his current ESO. The Clinical Neuropsychologist, Dr Emma Fitzgerald, consulted with the Applicant on 3 April 2025. Her report is dated 20 May 2025. Dr Fitzgerald opined that "In terms of understanding the current Extended Supervision Order, [the Applicant] has the capacity to understand the conditions of the order, however I suspect his cognitive impairment will have an impact on his ability to comply with the order. ...Overall, I believe [the Applicant] is at risk of breaching his current Extended Supervision Order, with his cognitive impairment playing a role in this."[45] [My emphasis].

1. In terms of the Applicant's overall risk profile as well as his likelihood of committing a further serious sexual offence, Dr Fitzgerald opined thus:

As noted in the referral documentation, I have not been asked to provide the usual opinion on risk, however I am able to comment on the impact of executive dysfunction on decision making in a more general sense. People with executive dysfunction are at risk of poor decision making due to difficulty integrating all of the information and understanding consequences, they are at risk of behaving impulsively, of not monitoring their own behaviour (i.e., a lack of self-awareness), of not being able to hold two competing ideas in mind, and of having a lower tolerance to frustration (i.e., they may be more likely to anger or act out on heightened emotions). From a cognitive perspective, I believe [the Applicant's] executive dysfunction will contribute to his decision making around alcohol use and thus his risk of reoffending, as outlined by Dr Furst and Dr Jennings.[46]

1. Ninth, there are three remaining elements worth mentioning none of which bode well in terms of the Applicant's recidivist risk. The Applicant has very poor prospects of securing stable and long-term employment. I have earlier referred to him having been found to be unemployable in this country. Then there are the Applicant's personality issues. Dr Furst was of the view that the Applicant "....does not have a formal diagnosis of psychopathic personality disorder, but administration of the ICD-10 diagnostic criteria for dissocial personality disorder would suggest that he does suffer from significant dissocial personality.[47] In her oral evidence to the instant hearing, Dr Fitzgerald appeared to concur with Dr Furst's opinion. These underlying issues with the Applicant's personality involving anti-social traits remain largely unaddressed. Likewise with the Applicant's gambling addiction. At the instant hearing, he conceded he would gamble whenever he had money to do so. This issue remains unaddressed by any rehabilitation.

1. As best as I understood the Applicant's position, the Tribunal is urged to focus not on the number of offences the Applicant has committed but on the nature and seriousness of the individual offences comprising the criminal history and the period covered by that history.[48] There was a concession that "In the Applicant's case, an assessment of the likelihood of rehabilitation is further complicated by the lack of interventions to address the risk factors for his offending amid concerns as to undiagnosed conditions and their effect on his accountability."[49] The Applicant's ultimate submission seems to be: "... that the absence of meaningful interventions means that the prospects of rehabilitation have not yet been properly determined or dismissed."[50]

1. The Respondent refers to the findings of Her Honour Judge Brampton who found that "having regard to [the Applicant's] history of offending and the psychiatric evidence, [the Applicant's] prospects of rehabilitation are very poor...."[51] Even though Judge Brampton's finding dates from 2019, the Applicant's poor subsequent engagement with rehabilitation endorses Her Honour's finding. Indeed, some of his symptoms remain totally unaddressed. There is little or no evidence of him having received any rehabilitation for his issues with gambling and his significantly dissocial personality. One is left to wonder about the purpose of rehabilitation in the context of this Applicant when one has regard to the opinion of Dr Fitzgerald who said the Applicant's neuropsychological state will not improve with time or treatment even in the circumstances of his claimed abstinence from alcohol during his time in prison and immigration detention.

1. The Applicant cannot be heard about why this or that reason has prevented him from meaningfully engaging with rehabilitation, particularly with reference to sexual offending. For the present exercise of assessing the Applicant's recidivist risk the issue of whether or not he has completed appropriate rehabilitation is a binary question. The answer to that question on the instant facts is a resounding "no". As best as I understood it, the overwhelming weight of the medical evidence before me is that this Applicant has a demonstrated incapacity to meaningfully engage in comprehensive and structured rehabilitation programs. Whatever barriers may have previously existed to him engaging with rehabilitation - even if true - does not displace the binary nature of the question before the Tribunal. This is especially so when one has regard to the predominance of alcohol behind much of his offending generally and the very serious nature of his sexual offending in particular.

Assessment of recidivist risk / potential danger to the community

1. Having regard to the factors in WKCG, I arrive at a finding that this Applicant represents, at best, moderately high level of recidivist risk provided he remains compliant with the current ESO with that level immediately rising to very high if he becomes non-compliant with it.

1. In terms of the qualitative aspect of the Applicant's profile for potential danger to the Australian community, I will find that such danger must be found to be significant given the level of harm resulting from recommission of his violent and, in particular, his sexual offending. In terms of the quantitative aspect of his profile for potential danger, it too must be found to be significant because of my assessment of his level of risk of recommitting his violent and / or sexual crimes.

1. Returning to the synthesis between the concepts of probability and consequence, the logical finding compelled by the evidence is that this Applicant's history convincingly demonstrates that both the qualitative and quantitative dimensions are apparent in the profile of danger he now represents. That is: the potential for physical and psychological harm is of a serious nature and, at the same time, his recidivist risk is moderately high and potentially very high.

1. I have considered the totality of both the written material as well as the oral submissions before me. I have sought to apply the relevant considerations outlined in WKCG to this material. I have also considered the qualitative and quantitative aspects of the potential danger this Applicant represents to the Australian community. I have found he represents a moderately high and potentially very high recidivist risk of re-offending if returned to the community. I am therefore of the view (and I find) that he remains a danger to the Australian community. The visa he seeks will be denied to him.

1. The Tribunal affirms the decision under review dated 21 October 2021 and finds that:
   1. having been convicted of a particularly serious crime, the Applicant is a danger to the Australian community within the meaning of ss 36(1C)(b) and s 36(2C)(b)(ii) of the Act; and
   2. the Applicant is not eligible for a Protection visa pursuant to s 36(1A) of the Act.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...................................[SGD]................................

[1] See A1, pp 1-2, [1]-[11]; see also R4, p 1, [3].

[2] In this case, the Protection (subclass 866) (Class XA) visa.

[3] This has occurred via the decision under review made on 21 October 2021.

[8] A previous title of the Respondent Minister in the instant application.

[11] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.

[18] See generally LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1591; (2019) 167 ALD 17 25[31]-27[40] and the cases cited in those paragraphs.

[19] Ministerial Direction No 75 - Refusal of Protection visas relying on ss 36(1C) and 36(2C)(b), made under s 499 of the Act (on 6 September 2017), requires Departmental decision-makers to consider a Protection visa applicant's refugee and complementary protection claims under ss 36(2)(a) and (aa) before considering any character or security concerns.

[20] See discussion by Senior Member Furnell in WGKS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 38 at [175]. See also discussion by Deputy President Boyle in RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123 at [76]-[78] and HSCK and Minister for Home Affairs (Migration) [2019] AATA 4392 at [151]-[153].

[25] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 12.

[26] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, page 10.

[29] See SZOQQ and Minister for Immigration and Border Protection [2012] FCAFC 40; (2012) 200 FCR 174 ('SZOQQ') [52] (Jagot and Barker JJ, Flick J agreeing at [28]) (set aside on different grounds: SZOQQ and Minister for Immigration and Border Protection [2013] HCA 12; (2013) 251 CLR 577); DOB18 and Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636 ('DOB18') [49] (Logan J); WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2001) 110 ALD 434 ('WKCG') [29] (Deputy President Tamberlin QC).

[30] Specifically, sub-sections (a)(i) and (b)(iii) to the definition of "serious Australian offence" appearing in s 5(1) of the Act.

[31] SZOQQ [49] (Jagot and Barker JJ), [27] (Flick J, agreeing).

[32] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84; (2023) 297 FCR 550 at [106]- [107]; [109], [111], [114]. Cited with approval by the Full Court in SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 104.

[34] Hasan v The Queen [2010] VSCA 352 at [21].

[37] See PNLB and Minister for Immigration and Boarder Protection [2018] AATA 162 at [22].

[39] R2, pp 6-7, [26] and [28]. Note to reader: the numbered references in square brackets in this quotation refer to specific paragraphs in the DMQ20 decision.

[42] See generally R5, pp 2-5, [7]-[20].

[43] See generally the report of Dr Furst: R1, pp 596-604; see also R2, p16-17, [60].

[44] See generally, R4, pp 11-12, [20(j)].