THE STATUTORY AND FACTUAL CONTEXT IN WHICH THIS PROCEEDING IS TO BE DETERMINED
25 To facilitate analysis of the respective submissions advanced by the parties as I have referred to above it is appropriate first to set out the statutory provisions that as relevant to this proceeding and to identify in turn how in practice they were engaged with by the relevant decision makers.
26 It will be recalled that this proceeding involves an application for a Protection Visa that the Applicant had applied for on 15 June 2017. The criteria for the grant of such a visa are those provided for by s 36(1C) of the Migration Act as follows:
(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.
27 It is uncontentious that upon the Applicant's application being refused in reliance on the provisions of s 36(1C) the Applicant had a right to seek review of that decision in the Tribunal: see s 500(1)(c)(i) of the Migration Act.
28 Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
29 In undertaking its review the Tribunal was required to conduct a hearing. As the Delegate's decision was reviewable pursuant to s 500(1)(c)(i) the ordinary procedural rules of the Tribunal were engaged. Counsel for the Minister had the right to test by cross-examination the evidence of the Applicant and the witnesses he called in support and to make submissions as to the law governing the determination of the proceeding.
30 There is no record before the Court beyond the reasons of the Tribunal as might reveal the detail of what transpired before the Tribunal but it is uncontentious that DP Rayment ultimately accepted the veracity and credit of the Applicant and the witnesses called on his behalf who had given evidence to the fact of his remorse and his fundamentally changed character. In consequence the Tribunal accepted that the Applicant no longer was the same person as had earlier committed the violent crimes he had been convicted for.
31 Notwithstanding that he applied the legal tests articulated by Deputy President Tamberlin QC in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 which on Ms François's submission were too strict, DP Rayment concluded that the Applicant did not constitute a danger to Australia.
32 The Tribunal made a formal decision in terms set out at [11] above and published reasons for its decision.
33 Section 43(2B) of the AAT Act provided that the Tribunal's written reasons were required to include its findings on material questions of fact and refer to the evidence or other material on which its findings are based.
34 In order that the parties submissions in this proceeding can be understood in context it is appropriate to set out in full the Tribunal's reasoning as appears under the heading "IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?".
15. On 30 November 2010, the applicant, then a relatively new member of an organised criminal network ('the gang'), as part of a group of twelve persons, went to a Turkish café at Mount Druitt. Most of the twelve, including the applicant, were armed with baseball bats. Two victims were working there, one of whom was the treasurer of an outlaw motorcycle gang. That person was hit repeatedly with a baseball bat and punched by other members of the gang. The applicant hit him in the area of the ribs with his baseball bat. The offence at the café was committed by the gang for the purpose of retribution. The judge found that the injuries inflicted (which together did not amount to serious bodily harm, and could have been more serious) were quite calculated. The judge described the offences, involving as they did a joint criminal enterprise as mid-range offences. They carried a maximum penalty of ten years imprisonment (which the judge did not impose upon the applicant). The applicant did not plan or direct the offence, and participated as a follower rather than a leader.
16. It was a serious crime, involving violence. Membership of an organised criminal network, and the following of the purposes of that network, and forming part of a group of twelve persons all armed with baseball bats, at the time of commission of the offence is a matter which in my opinion, elevates the seriousness of the offence, perhaps enough to turn the offence into a particularly serious crime.
17. One matter which the statute leaves unclear is whether any distinction is intended between a very serious crime and a particularly serious crime. Is more than that the crime is very serious required? The consequence of failing to obtain a protection visa on complementary protection grounds follows if the decision-maker concludes both that the visa applicant has been convicted of a particularly serious crime and that he or she is a danger to the Australian community. Failing to obtain a protection visa, if complementary protection obligations are owed in respect of the applicant, it might have very serious consequences for the visa applicant. If the person is not (also) a danger to Australia, of course, the protection obligations will not be lost.
18. I think that to ask whether something more than a very serious crime is involved, is an approach which may distract a decision-maker. Rather, I think, the decision-maker should simply ask himself or herself: was the crime one which was a particularly serious crime as one understands those words of ordinary English to be used? That question I would answer in the affirmative.
19. The other crimes for which the applicant was sentenced by Judge Sides were committed on 21 February 2011, and included an offence of attempted specially aggravated break and enter with intent to intimidate, committed at a home with three others at Mount Druitt. The applicant was armed with a knife on this occasion, and one person with him was armed with a shotgun, and another with a revolver. The home invasion was unsuccessful, apparently because a gun was discharged, I gather by a person inside the home. In other words, the applicant, in fact, engaged in no acts of violence although he was armed with a knife. The other two persons were from the gang. The arms involved, and the presumed intention to use them also suggest to me that a particularly serious crime was involved, even though violence was not actually used.
20. Judge Sides sentenced the applicant to a total of five years imprisonment, with an overall non-parole period of thirty-four months, expiring on 1 June 2014. He took into account that the applicant, then in his early twenties, was not of good character having previously been convicted of offences as a juvenile. A summary of his police record prior to the sentencing remarks of Judge Sides is set out at Annexure A of these reasons.
21. Judge Sides found that the applicant was remorseful, and that his prospects of rehabilitation were good. He also found that he had been employed for a total of about 17 months, and that he intended to sever all links with the gang, whose instructions he had followed at the time of the offences.
22. In each case, the question arises whether the applicant is a danger to the Australian community. I have had the advantage of seeing and hearing the applicant in the witness box and of hearing the evidence of those who gave evidence on his behalf. For reasons which follow, I have decided that the applicant does not constitute a danger to the Australian community. I agree with the Hon B Tamberlin QC, Deputy President who said in WKCG and Minister for Immigration and Citizenship [2009] AATA 512 concerning Article 33 of the Refugees Convention, that the requirement of having committed one or more particularly serious crimes is a gateway provision, rather than something with a causal relation to the question of whether he or she is a danger to the Australian community. That proposition seems to me to be also true of s 36(1C) and s 36(2C).
23. I also agree with DP Tamberlin that the question of whether the non-citizen is a danger to Australia is to be determined having regard to all the facts and circumstances of the non- citizen, whether or not related to the crimes of which he has been convicted, but including the facts and circumstances of those convictions.
Meaning of "danger to the Australian community"
24. The first matter which I examine is the meaning of the expression, "danger to the Australian community".
25. In WKCG and Minister for Immigration and Citizenship [2009] AATA 12 the Hon B Tamberlin QC, Deputy President, examined the meaning of Article 33(2) and said at [25], [26], [29]-[31]:
25. The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Article 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
26. Some relevant considerations include the seriousness and nature of the crimes committed, the length of the sentence imposed, and any mitigating or aggravating circumstances. The extent of the criminal history is relevant as is the nature of the prior crimes, together with the period over which they took place. The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
…
29. As a matter of interpretation, in my view, the reference to the words "having been convicted" operate to limit the class of persons on whom the provision operates and that the question whether a person "constitutes a danger" is a separate additional matter to be independently established. The reference to "having been convicted" is analogous to a prerequisite to the exercise of the power independent of the other criterion. This conclusion is supported by extrinsic material including the Second Reading speech and the relevant Explanatory Memorandum. Therefore, once it is found that the person has been convicted of a particularly serious offence, it is then necessary to consider separately whether the person constitutes or is a danger to the Australian community. Of course, the nature and circumstances of the conviction or convictions will generally be highly relevant to the question whether the person can be described as being a "danger". However, it is not conclusive. It is necessary to look at the person's conduct in the light of all the circumstances that have occurred up to the time of making the tribunal decision both before and after the period of the convictions. In other words, if a person is convicted for a crime of violence and it later transpires that he or she may constitute a danger to the community in another area, such as drug trafficking, such a person may come within the exception provided for in the Article. Accordingly, I agree with the submission made by the respondent Minister and reject the submission of the applicant that the particular offences for which the person has been convicted must always somehow be causally linked to the type of danger to the community.
30. Counsel for the applicant also submits that, to constitute a danger there must be a substantial evidentiary basis to conclude that the refugee is presently, at the time of the decision, an actual danger and that it is a requirement that there is a "real probability" of harm being caused to the community.
31. The language of the Article directs attention to the expression "danger". This expression indicates that regard must be had to the future as well as the present, and includes a consideration of what may be foreseen to be the conduct of the person in the future. In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future. The determination of this must be made by reference both to past circumstances and, as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant's level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression "danger" involves a lesser degree of satisfaction than that required by the expression "probable."
26. In SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40, the Full Court of the Federal Court considered a case involving the meaning of Article 33. It did not directly involve the construction of the expression "danger to the [Australian] community" because both parties accepted that the remarks made by DP Tamberlin in WKCG were correct. Nevertheless, Jagot and Barker JJ said, with the agreement in this respect of Flick J:
52. The problems with this argument are two fold. First, mere damage to property is insufficient. There must be "serious" damage to property before the offence may be classed as "particularly serious crime". Second, ss 197A and 197B of the Migration Act have a very limited scope. Section 197A makes it an offence to escape from immigration detention. Section 197B makes it an offence for a detainee to manufacture, possess, use or distribute a weapon. The plank in the appellant's argument which depends on "particularly serious crime" extending to relatively low-level offences is not supported by the terms of s 91U. Second, it is not enough that a refugee be finally convicted of a "particularly serious crime" before the refugee loses the protection against refoulement in Art 33(1). In addition, the relevant decision- maker must find that the refugee, having been so convicted, constitutes a danger to the community. The test for such danger, accepted in this case before the AAT, was that expressed in WKCG at [25] of "real or significant risk or possibility of harm to one or more members of the Australian community", it not being necessary to establish "a probability of a real and immediate danger of present harm". The correctness of that test was not in issue in the appeal. Whatever the correct test, the relevant point for present purposes is that the requirement exists and is additional to the finding of conviction of a particularly serious crime.
27. The Full Court did not adopt the reasons of DP Tamberlin, but nor did they reject them. The most that may be said is that the Full Court failed to endorse the "real chance" test proposed by DP Tamberlin.
28. The expression "danger to the Australian community" is to be construed in its context, but has no technical meaning. The phrase is used in both s 36 and s 501(6)(d) of the Act, albeit in slightly different contexts. The language is that of ordinary English. Whether it is satisfied involves a close consideration of the whole of the relevant facts and circumstances as they present today. I am not sure that there is any one test as such. The view that a person is a danger to the Australian community can be held in a variety of circumstances. Prior criminal conduct is obviously relevant. The degree of risk of recidivism is obviously relevant, and that requires attention to his motivation not to re- offend. What rehabilitation a person has undergone is obviously relevant. When his last offending occurred is relevant. The views of those who know him well can be relevant.
Consideration of the Applicant's facts and circumstances
29. The applicant was released on parole in 2014 and was at liberty for nine months. In that period, his parole was threatened to be revoked because he was at the Sydney casino and he was seen to be drinking in the company of a former gang member whom he knew, and that led to him being warned that his parole would be revoked if he did such a thing again. The applicant said that he knew he was required to have no association with gang members as a condition of his parole. He said that he did not think that being in the company of the person in question was a breach of his parole conditions because that person no longer belonged to a gang, and the few hours spent in his company at the casino, including at its bar, were in public.
30. He said that his parole was revoked in 2015 because he faced further charges which I was told were dismissed at the committal stage and were later, after the charges were laid on indictment, the subject of a no-bill which led to him being discharged by Judge McLennan in October 2016. He was then taken into immigration detention.
31. He said that he was told that the fresh charges led to his parole being revoked, but after he was incarcerated, was given a paper stating that his parole was revoked for breach of parole conditions.
32. The applicant said that the alleged victim was his cousin and that he has no idea why he was not available at the trial, which apparently led to him being no-billed. Beyond being asked whether he had had contact with the cousin, which he denied, no details were elicited from him about any circumstances relating to the charges on which he was no- billed. I am unable to form any view adverse to the applicant on this matter.
33. Much has changed since his last offence of 2011, some seven years ago. He no longer has any connection with the gang or any of its members or former members.
34. Importantly, he has formed a relationship with a young lady in good standing, who is employed by the Commonwealth Bank. He has been in detention at Christmas Island where she has visited him on three occasions. They intend to marry and want to have a family. She gave evidence before me. The applicant was cross-examined to suggest that their relationship was not genuine, and was put forward as a person whom the applicant intended to marry only in order to bolster his prospects of success on this review. Parallels were sought to be drawn with earlier girlfriends whom the applicant had previously put forward as intended partners. His girlfriend was cross-examined about the genuineness of their relationship.
35. I reject the suggestion put to the applicant. On the contrary, both she and the applicant satisfied me that their relationship is genuine and affectionate. I accept that they intend to marry and that she is devoted to him.
36. Travel to Christmas Island to be with the applicant has been expensive for his girlfriend. Twice, she spent several days there, from Tuesday to Saturday, and on the third occasion, she spent two weeks there. She went through passport control in Perth, before taking a three to four hour flight to and from Christmas Island. They spoke by telephone daily.
37. She has also formed a friendship with the applicant's family members in Sydney while the applicant has been in detention, and has been trying to go to his mother's house at least weekly.
38. When asked by me whether she would go with him if he were sent back to Iraq, the applicant said that she had offered to do so, but he had said he would not let her do so, because her life would be in danger there, and because of her close ties to Sydney, where she also has family of her own.
39. As the delegate found in the reviewable decision, the applicant's life would be at risk if he were returned to Iraq, because he would be identified both by his name and by other means as an Assyrian Christian, and his life would be at risk throughout that country.
40. The applicant is now more mature than he was in 2010 and 2011. He recognises that he will remain at risk of visa cancellation and has now spent much of the last six years in correctional facilities and detention. He faces the loss of his intended wife, his family and all that he is familiar with in this country.
41. He described his earlier life as "living a lie" and said that he put his family through hell and is ashamed of it.
42. He took drugs from an early age, although they were not found to have influenced the commission of his offences of 2010 and 2011. He has been drug-free since 2011 or 2012.
43. He has arranged what could turn out to be a permanent job with the brother of a school friend, who gave evidence before me. Subject to satisfactory performance, he will keep that job. The employer would train the applicant himself. It would be a full-time job starting at 7 am until 5 pm.
44. The applicant gave evidence that he has severed all links with the gang. He said he has come to realise that they don't care about him, and he firmly intends to have nothing to do with them. There were gang members in the correctional facilities, and he has had nothing to do with them. His involvement in the particularly serious crimes to which I have referred was gang-related. Separation from that gang is something that his girlfriend will encourage, as will his family members who gave evidence before me. I accept that the applicant firmly intends to have no further connection with organised criminal networks.
45. His elder sister said she had observed a change in him. She said that the present procedures of the Minister had shaken him up.
46. I heard from a forensic psychologist who examined the applicant by telephone over two and a half hours while he was in detention on Christmas Island in April this year. She assessed him as a low to moderate risk of re-offending, noting that the items which influenced his score were historical in nature, and that his prognosis was considered positive because of the high level of support he receives from his family and partner, his expressed remorse, and his motivation towards engaging in counselling in the future. She also spoke with his mother, elder sister and partner, and formed the view that they would all provide good support to him.
47. I also heard from another sister of the applicant and a sister of the girlfriend, who confirmed some other evidence before me.
DECISION
48. Putting the various findings I have made together as to the position of the applicant since his last offending in 2011, and having attempted to estimate him in the witness box, and having heard what was said about him by his intended wife and the family members, I do not think that there are reasonable grounds for considering him to be a danger to the Australian community. I think it is likely that the community will be safe from him. The reviewable decision will therefore be set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.
35 Section 43(6) of the AAT Act provides:
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes ... be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
(emphasis added)
36 Notwithstanding the terms of s 43(6) of the AAT Act the brief provided to the Minister by his department which advised him that it was open to him to consider whether to refuse to grant the Applicant's application for a Protection visa under s 501(1) of the Migration Act did not identify that there were or might be legal consequences flowing from the Tribunal's decision as would or might constrain his decision-making in the application that had been remitted to him for re-consideration in accordance with the direction the Tribunal had made. The only references to the Tribunal's decision in the department's briefing are those to be found under the heading "Other Factors" and the sub-heading "International non-refoulement obligations". The relevant passages are as follows:
59. The Protection Visa Decision Record dated 19 October 2017 shows that the Department found that [the Applicant] is owed international non-refoulement obligations. The decision record also states that in consideration of his criminal offending, [the Applicant] was deemed not to meet criterion in s36{1C), thus his Protection visa application was refused Attachment II.
60. On 3 October 2018, the Administrative Appeals Tribunal (AAT) remitted [the Applicant's] application for reconsideration, with the direction that [the Applicant] satisfies criterion in s36(1C) and does not present a risk to the Australian community Attachment X.
61. You may accept the conclusion drawn by the Department dated 19 October 2017, that [the Applicant] is a person in respect of whom Australia has international non-refoulement obligations, with country of reference being Iraq. This means that his removal to Iraq would breach these obligations. You may also accept that there is currently no known prospect of removing him to any other country.
37 Unsurprisingly, given the Minister had not been briefed to any other effect, the Minister's reasons similarly do not identify or acknowledge that there were or might be legal consequences arising from the Tribunal's decision as would or might constrain his decision making in addressing the application that had been remitted to him by the Tribunal for re-consideration in accordance with the direction it had made.
38 The provisions of s 501 of the Migration Act in respect of which the Minister was briefed are as follows:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate - natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or…
39 The only references to the Tribunal's decision in the Minister's reasons appear at [42] and [43]. Having regard to the circumstance that Ground 2 of this review raises legal unreasonableness in the manner in which the Minister dealt with the Tribunal's decision it is appropriate to set out in full the Minister's reasons as are set otu under the heading "Risk to the Australian Community" so that the approach of the Minister to the Tribunal's decision and the parties respective submissions with respect to Ground 2 can be appreciated in context. The passages that refer to the Tribunal's decision have been identified in bold:
22. In making my decision I considered that Australia has a low tolerance of any criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
23. I have considered whether [the Applicant] poses a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps [the Applicant] has undertaken to reform and address his behavior (sic). I have also taken into account [the Applicant's] overall conduct in the custodial and non-custodial environment, and his insight into the offending.
24. I have considered the comments of the sentencing Judge on 5 October 2012 who noted [the Applicant's] personal history taking into account that he was born in Iraq and arrived in Australia as a young child with his three older siblings, and raised by his mother who worked two unskilled jobs to provide for the children on her own. The Judge commented that [the Applicant] appears to harbor considerable resentment at the absence of the role of his real father in his life, and that [the Applicant] attributes his offending behavior (sic) to the lack of guidance as a consequence of his father's absence.
25. I note the sentencing remarks on 5 October 2012 also state that [the Applicant] was about 20 years of age when he became associated with the 'Notorious gang', and he subsequently became a member of that gang some nine months later. It was disclosed to the court that he started abusing drugs at an early age, and although his drug and alcohol use is not suggestive of any significant problem, it is an ongoing one. Further, it was submitted to the court that [the Applicant] has difficulty controlling his emotions, especially anger, and although his non-verbal skills are adequate, his verbal skills are poor. Also that according to a psychologist there may be a link between his poor verbal skills and poor control of emotions, which in turn may also make him susceptible to adverse influences of negative peers.
26. I have also taken into consideration that the sentencing Judge stated that although [the Applicant] may have problems controlling his emotions, there is no evidence that he engaged in his offending in the context of an inability to control anger. Whilst [the Applicant] claimed that he went along with the others in the gang, his actions in the cafe of hitting one of the victims once with a baseball bat are inconsistent with a problem of controlling anger. I note that the Judge stated that regarding his actions during the attempted home invasion, [the Applicant] resolved to not to be involved in shooting and waited behind a car when he saw an occupant in the home with a gun. The sentencing Judge stated that there was no evidence [the Applicant] was affected by drugs or liquor at the time of the offences, and the court was not persuaded that there is any reduction in his moral culpability as a result of intoxication or inability to control his mood or level of intellectual functioning.
27. I have considered [the Applicant's] representative's submission that mitigating circumstances which apply to [the Applicant] include his use of drugs at an early age, and that his first offence was committed as a minor. It is submitted that the absence of a father figure in his life is also a factor, as well as his exposure to criminal influences resulting from a lack of proper guidance.
28. Although I take into account that [the Applicant's] background circumstances may assist to explain some of what led to his offending behavior (sic), I also take into consideration that the court stated that there was no evidence [the Applicant] did not know at the time of the offences what he was doing, or the consequences of his offending.
29. I have taken into account that [the Applicant] has expressed remorse over his criminal offending, and that he acknowledges the harm inflicted upon the victims and their families. I note his statements that he accepts he was deserving of the sentence imposed by the Judge.
30. I have also taken into account that [the Applicant] acknowledges making terrible mistakes and regretful decisions, which he submits he made under peer pressure and in an attempt to please other people. He states that this is now in his past, and a lack of education and support were mitigating factors contributing to his past criminal conduct. I note his submissions that he is a generally shy person with no intention to cause anyone harm, and the absence of a father to properly guide him has led to him making mistakes that have caused considerable heartache to his family. I note his statements that he is resolved never to repeat such mistakes, that he has the support of his family, and that he has already sought employment so that he may contribute to the community.
31. [The Applicant] also submits that he intends to take care of his ill mother, repay his siblings for their support and help with his legal fees, and to prove to everyone that he is now a better person. I have taken into account his statements that he will not associate with friends and people who present a bad influence, and he is seeking the opportunity to demonstrate the changes he has made as he focuses on improving his life with plans to get married, find a full time job and support his family.
32. I acknowledge that [the Applicant] submits he was involved with criminal gangs between the ages of 18-20 years old, and that his gang membership ceased when he went to jail.
33. I have considered [the Applicant's] comment that he is no threat to the Australian community. I also note his comments that his ongoing detention leaves him feeling isolated, depressed and worthless.
34. I have taken into account the number of course certificates and statements of achievement that [the Applicant] has submitted, as evidence of his efforts at rehabilitation.
35. I have given consideration to the psychological assessment for [the Applicant] dated 26 April 2016, which states that given his history of migrating to Australia after fleeing war-torn Iraq as a child, it is likely that he had experienced post-traumatic symptoms in relation to those events, thus precipitating the development of anxiety and depressive symptoms during adolescence and early adulthood. In addition to his mental health issues, the report states [the Applicant] revealed a troubled childhood characterised by antisocial behaviours during adolescence, stemming from the absence of a father figure in his life and leading to him to seek approval and a sense of belonging with his peer group.
36. I note the psychological assessment also states that [the Applicant] is assessed to be in the low to moderate range for risk of reoffending, noting that the items which inflated his score were historical in nature, and that he has not been convicted of any further serious offences since 2012. I have taken in consideration the psychological assessment states that though his risk for recidivism is in the low to moderate range, protective factors in his life include the high level of support from his family and partner, his expressed remorse, and intentions of engaging in future counselling.
37. I have taken into account the letters and statements of support made by [the Applicant's] family members, partner, and friends and Parish Priest who acknowledge he has made mistakes in his life, but is a changed man who wishes for the opportunity to prove himself as a contributing member of the Australian community. I have also taken into account [the Applicant's] submission that he had previously helped at the local Assyrian Church and had played soccer since he was 10 years of age.
38. I have considered the Probation and Parole Service, Immigration Report from Cooma Correctional Centre dated 27 February 2013, which refers to case notes from December 2011reporting that [the Applicant] complied with centre routine and was polite and compliant, although in late 2012 his behaviour deteriorated and he was moved to a different correctional facility.
39. I acknowledge the Pre-Release Report from Wellington Correctional Centre dated 25 March 2014, which states that [the Applicant] expressed regret over his actions and understood that his offending would have had a long term impact on his victims. It is stated that he has participated in literacy and numeracy educational classes, and has received positive reports regarding his performance as a general hand in a cleaning crew.
40. I have taken into account the Probation and Parole Service, Breach of Parole Report dated 16 February 2015, which states the following. [the Applicant] was released from prison to parole on 1 August 2014. He reported as directed and attended interventions, and urinalysis drug tests in September 2014 and February 2015 returned negative results. [The Applicant] attended five counselling sessions for drug relapse prevention and anger management counselling. Whilst I acknowledge that [the Applicant] displayed some compliant conduct whilst on parole, I also note the report states that on 16 January 2015, police pulled over a car containing [the Applicant] and two male associates, and found a replica pistol under the car seats, which [the Applicant] claimed was a child's toy.
41. I also note with concern that on 6 February 2015, information was received that [the Applicant] had been associating with a member of an 'Organised Crime Network'. During an interview on 12 February 2015, [the Applicant] was questioned about this and he claimed he thought that he was not permitted to associate with 'bikies with colours' and the person he was associating with was a gang member before, but is no longer. The report stated that while [the Applicant's] response to supervision has been satisfactory, his overall response appears to be superficial and his association was of great concern. I note that a recommendation of revoking his parole order was supported, and his parole was subsequently cancelled.
42. I have considered the decision of the Administrative Appeals Tribunal (AAT) who found that [the Applicant's] (2010) offending was a serious crime involving violence. His most recent offending (2011) involved no actual violence on [the Applicant's] behalf though he was armed with a knife at the time. The AAT found that [the Applicant] does not constitute a danger to the Australian community.
43. The AAT took into account that [the Applicant's] circumstance are different now to what they were some seven years ago as he no longer has any connect ion with the gang or its members; he has formed a relationship with a young lady of good standing in the community and they intend to marry and start a family; he is more mature now and has been drug free since 2011or 2012. Furthermore, he has job prospects through a brother of a school friend and the support of his family. Despite the findings of the AAT, I am of the view that [the Applicant's] conduct remains untested in the community.
44. I acknowledge that there are a number of factors indicative of a lowering of the risk of [the Applicant] reoffending, including his expressions of remorse and that he submits that he no longer has ties to gangs, its members or former members. I note that [the Applicant] was generally compliant during his time in prison, on parole and in immigration detention. Also that his partner is said to be a strong source of support, along with other family members. However, I note that [the Applicant] had protective factors in the past being the support of his family and community yet he continued to offend.
45. I also take into account that [the Applicant] displayed some compliant conduct in prison and whilst on parole in 2015. However, I also note that whilst in the community on parole he associated with a person said to have been a member of an organised crime network, and I find this of concern particularly given [the Applicant's] violent offending conduct in 2010 was gang related.
46. I have considered that the Australian Criminal Intelligence Commission (ACIC) designates OMCGs as one of the most high-profile manifestations of organised crime in Australia. I am aware that OMCGs remain the target of national law enforcement operations to reduce the criminal threat posed by OMCGs to the community.
47. I also take into account the information contained in [the Applicant's] criminal history certificates, the sentencing remarks of the District Court of New South Wales dated 5 October 2012, and various probation reports showing that [the Applicant] was a member of the Notorious OMCG until at least October 2012 when he was sentenced to prison.
48. I find [the Applicant's] past membership of the Notorious OMCG indicates his willingness to associate with anti-social and criminal elements in the community, and his willingness to engage in violent criminality as a gang member. Whilst I have taken into account [the Applicant's] submission that he is no longer a member of the gang, I find that he subsequently associated with a person said to have been a gang member, whilst he was on parole in 2015 and that also in this instance such association was despite having family support and knowing the consequence of returning to prison which did not act as a motivational factor for him to fully disassociate himself from criminal elements whilst in the community. Such non -compliant conduct resulted in his parole being revoked.
49. I note that after [the Applicant] returned to prison and was released, he went straight into immigration detention and has not sin ce returned to the general community.
50. I find that [the Applicant] has not yet had the opportunity to test his ability to remain drug free in the community for any length of time and to refrain from associating with member/s of criminal gangs that may make him vulnerable to the negative influence of such associates, which he states was a major influence in his past offending.
51. Overall, I find that there remains an ongoing risk that [the Applicant] will reoffend. Should [the Applicant] engage in further criminal conduct of a similar nature, it could result in dangerous and violent conduct that could cause significant physical harm and/or psychological injury to members of the Australian community.