MVLW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1557 (28 September 2017)

1. The Applicant's Queensland criminal history is summarised in his Queensland Person History,[3] which indicates that he was convicted of the following offences:

1. On 27 November 2013 at the Brisbane Magistrates Court he was ordered to pay a fine of $200 with no conviction recorded for the charges of 'fail to leave licensed premises' and 'assault or obstruct police officer'. 2. On 19 December 2013 at the Brisbane Magistrates Court he was charged, but had no conviction recorded, for 'failure to appear in accordance with undertaking'.

1. On 31 October 2014 at the Brisbane Magistrates Court the Applicant pleaded guilty to two offences and was sentenced to: 1. 9 months imprisonment with parole granted immediately for 'assaults occasioning bodily harm'; concurrent with 2. 2 years imprisonment to be suspended for 4 years (later corrected to 1 year imprisonment to be suspended for 2 years[4]) for 'sexual assaults'.
2. The latter two offences (i and ii) were committed on 25 August 2013. An agreed Schedule of Facts[5] surrounding both offences was presented to the sentencing Magistrate. I will elaborate on further details of the two offences later in my consideration.
3. In the course of sentencing the Applicant, the Magistrate observed that the circumstances of the assault involved aggravation, while at the same time, noting that the victim had "expressed the view that she forgives [the Applicant]".[6]
4. In addition to these convictions, the Applicant's Queensland Traffic Record[7] indicates that on 2 August 2014 the Applicant was driving with a recorded Blood Alcohol Concentration ('BAC') reading of 0.184, which is almost 3.7 times over the legal limit. As a result, he was fined $1,200 and his license was immediately disqualified for 12 months. He had previously been subject of a 12 month good behaviour driving period as a result of an accumulation of demerit points on 24 September 2008. The accumulation of demerit points can be attributed to his failure to display green 'P' plates on two occasions and exceeding the speed limit by at least 13km/hr.
5. Further evidence was adduced that the Applicant has also been dealt with by lawful authority in New South Wales.[8] On 8 February 2012, he was dealt with by the Fairfield Local Court for:
   • 'drive with middle range prescribed concentration of alcohol', for which he was fined $350 and his licence disqualified for 6 months;
   • 'drive whilst suspended', for which he was fined $200 and his licence was disqualified for 6 months; and
   • 'drive with middle range prescribed concentration of alcohol', for which he was fined $300 and his licence disqualified for 12 months.[9]
6. Additionally, evidence produced under summons by Victoria Police indicates that the Applicant had a number of outstanding charges and related warrants for various offences (such as being drunk in a public place, criminal damage, and other driving offences) which were struck out or cancelled as a result of the Applicant being taken into immigration detention.[10]

1. Prior to a discussion of the issues, it is pertinent to articulate the legislative framework that sets the parameters for this matter.
2. Section 29 of the Act deals with visas and specifies that "the Minister may grant a non-citizen permission, to be known as a visa, to either (a) travel to and enter Australia; and/or (b) remain in Australia".
3. Section 65 of the Act provides that where a valid application for a visa is lodged, the Minister (or his delegate) must make a decision to grant or refuse to grant a visa. The mechanical operation of that decision making process is cited below [with my emphasis added]:

65 - Decision to grant or refuse to grant visa

Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a) if satisfied that:

• (i) the health criteria for it (if any) have been satisfied; and
• (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
• (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
• (iv) any amount of visa application charge payable in relation to the application has been paid;

(b) if not so satisfied, is to refuse to grant the visa.

1. In this case, section 36 of the Act specifies the criteria for protection visas, which are as follows:

36 - Protection visas--criteria provided for by this Act

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

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

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

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

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

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

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

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

1. The Respondent concedes that the criteria in subsections 36(1B) and (2)(a) are satisfied by the Applicant. The only issue in dispute is whether the Applicant satisfies the criterion in subsection 36(1C) of the Act. The Respondent is of the view that the Applicant has been convicted by final judgement (of a court) of a particularly serious crime and is a danger to the Australian community.
2. The note to subsection 36(1C)(b) directs a decision maker to section 5M which specifies the definition of "particularly serious crime" as follows:

For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:

1. The phrase a "serious Australian offence" is further defined in section 5 of the Act:

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

1. the offence:
   • (i) involves violence against a person; or
   • (ii) is a serious drug offence; or
   • (iii) involves serious damage to property; or
   • (iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
2. the offence is punishable by:
   • (i) imprisonment for life; or
   • (ii) imprisonment for a fixed term of not less than 3 years; or
   • (iii) imprisonment for a maximum term of not less than 3 years.

1. The jurisdiction to bring an application for review of this decision can be found in section 500 of the Act. In particular subsection 500(1)(c)(i) provides that an application may be made to the Administrative Appeals Tribunal ("this Tribunal") for review of a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on subsection 36(1C).
2. In the lead up to the hearing of this matter and during the first part of the proceeding, it was contended on behalf of the Applicant that the current Application for review would be nugatory if, upon the Tribunal making a decision to grant the Applicant a protection visa, the Respondent then made a decision to cancel the Applicant's Protection visa under subsection 501(2) of the Act, relying on the character test.
3. I accept the Respondent's contention that the Tribunal does not have jurisdiction to consider, or make a decision in relation to, section 501 of the Act in this review.[11] The Tribunal's jurisdiction is not at large and only extends to review of decisions in relation to which jurisdiction has been conferred upon it. A decision by a delegate of the Minister under section 501 would be a separate decision, for which the Tribunal is conferred jurisdiction to review under section 500(1)(b) of the Act.
4. I can only review the decision currently before me. Discharge of that function should not be predicated on the basis of anticipating the ramifications for, or consequential actions of, another decision maker(s), were I to find the Applicant satisfied the criterion in section 36(1C) of the Act.
5. No decision has been made under section 501 of the Act in relation to the Applicant's present protection visa application. On the contrary, the Applicant's was refused a protection visa on the grounds that he did not satisfy the protection visa criteria in section 36, specifically, subsection (1C). The matter before me does not make reference to the "character test" as defined in section 501. It follows that the Tribunal has no jurisdiction in the present review in relation to section 501 of the Act.

1. The Applicant contended that section 36(1C) contained a power which may be 'exercised' to not refuse the protection visa. This contention must be corrected by reference to the clear wording of that section in context with the other relevant provisions of the Act.
2. Section 36 contains the criteria for protection visas which a decision-maker must, by virtue of section 65 be 'satisfied' that an applicant meets before granting a visa. There is no discretion when making a decision under section 65, such that if an applicant did not satisfy subsection 36(1C), the delegate could still grant a protection visa.
3. It was reiterated on multiple occasions that the sole issue for determination in this present review is whether the Applicant satisfies the criterion in subsection 36(1C). That is, (for the purposes of this application) whether the Applicant is not a person whom, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.[12]
4. The application of section 36(1C) to a given factual matrix is different to that contemplated in matters involving section 501 of the Act. There, if an Applicant, for example, fails the character test, the decision maker must then look to the possible exercise of the given discretion. That process is, in turn, informed by ancillary considerations laid out in Direction No. 65.[13] Here, there is no assistance or guidance for a decision maker in the form of an ancillary guide or other policy document informing a determination of what constitutes 'a danger' to Australia's security or the Australian community.
5. Contentions that talk about the ramifications and impacts of refusing the protection visa cannot be at the core of my consideration. For example, I cannot take into account any impact of refusal of this protection visa on the Applicant or his family. Nor can I give weight to any submission that refusal of this visa would amount to further punishment of the Applicant. I agree with the Respondent's contention: such ramifications can only serve to inform a decision maker's assessment of whether the Applicant will be a danger to the Australian community. As individual elements, such ramifications or adverse elements are not otherwise relevant to that assessment.[14]

1. This is a novel area of the law. I am not able to locate any official government policy or guide informing the assessment I must make. Similarly, there is a dearth of precedent dealing with the criterion in section 36(1C). That provision has only been inserted into the Migration Act relatively recently,[15] and has not been the subject of direct consideration by the Tribunal or any Court as yet (as best as I can ascertain).
   1. The criterion in subsection 36(1C) only applies to protection visa applications that were made on or after 16 December 2014.[16] The Explanatory Memorandum for the Bill[17] that introduced this provision explains that the:

"New subsection 36(1C) is intended to codify Article 33(2) of the Refugees Convention which provides for an exception to the principle of non-refoulement in Article 33(1) of the Refugees Convention. As such, a person who is captured by new subsection 36(1C) will not engage Australia's non-refoulement obligations under the Refugees Convention or for the purposes of the new statutory framework relating to refugees.

A person who is captured by new subsection 36(1C) will not be eligible for the grant of a protection visa".[18]

1. The intention behind subsection 36(1C) of the Act is to codify the provisions of Article 33(2) of the Refugees Convention, which allows for an exception to the principle of non-refoulement. The wording of that article is as follows:

"ARTICLE 33. PROHIBITION OF EXPULSION OR RETURN ('REFOULEMENT')

1. 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.

2. 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. The Tribunal has previously considered the application of Article 33(2) of the Refugee Convention in the matters of: (1) WKCG and Minister for Immigration and Citizenship [2009] AATA 512 ("WKCG"), and (2) BHYK and Minister for Immigration and Citizenship [2010] AATA 662 ("BHYK").
2. I think the Respondent's contention is correct: there is an obvious link between Article 33(2) of the Refugee Convention and s 36(1C)(b) of the Act.[19] Consequently, the Tribunal's findings and commentary in WKCG and BHYK do, in my view, reliably inform a construction and application of that section to the factual matrix now before me.

1. In the matter of WKCG, the Honourable Deputy President Tamberlin QC pointed out that an assessment of whether a person constitutes a danger to the Australian community is one of fact and degree and that all of the circumstances of a given case must be taken into account.[20]
2. The learned Deputy President laid out some relevant considerations that informed his assessment. They included:
   1. a consideration of the seriousness and nature of the crimes committed;
   2. the length of any sentences that were imposed;
   3. any mitigating or aggravating circumstances (around the circumstances of the offending);
   4. the extent of the Applicant's criminal history and the nature of his/her prior offending;
   5. the length of the criminal history;
   6. an assessment of the Applicant's risk of re-offending and recidivism and the likelihood of relapsing into criminal activity.[21]
3. A holistic assessment of an Applicant's criminal record must be weighed against prospects of rehabilitation. The Honourable Deputy President Tamberlin QC suggested that the assessment essentially involves a prediction about the future conduct of an applicant based upon a consideration of his/her character and the extent of any likelihood of this manifesting into a given threat that could be posed to the Australian community.[22]
4. The learned Deputy President also analysed the concept of "danger" as it relates to the necessary assessment. Citing Brennan J in Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98 at 100, the learned Deputy President noted that an assessment of "danger" is both a present and forward looking exercise involving a prediction of an applicant's conduct in the future. The reason for this dualistic approach is because the intent of the provision is to protect the community from any immediate harm but at the same time, harm in the reasonably foreseeable future.
5. Critically, to my mind, the learned Deputy President thought an assessment of an applicant's level of risk does not involve the application of "... too high a threshold to require that the possibility of harm must be established at the higher level of probability... the expression "danger" involves a lesser degree of satisfaction than that required by the expression "probable".[23]
6. Any assessment of whether a person constitutes a "danger" to the Australian community is not exclusively informed by the offence(s) constituting a "particularly serious crime". "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."[24] Another facet of the assessment of "danger" involves a consideration of whether a predisposition or preponderance towards a given mode of offending can morph into different, but no less serious, offending which is equally capable of endangering the Australian community.

1. The principles in WKCG were followed in BHYK where the Tribunal said:

"... the Tribunal must determine whether there is a real or significant risk or possibility of harm to one or more members of the Australian community. An assessment must be made of the likelihood of the applicant reoffending by reference to past circumstances, including criminal history, and of the applicant's prospects for rehabilitation." [25]

1. In written submissions filed on behalf of the Applicant,[26] there is a genuinely made effort to facilitate a definition of "danger" or recidivism by, inter alia, reference to (1) a timeline or chronology of the Applicant's offending,[27] together with (2) a comparative focus on the nature of the previous offending constituting the dominant or most significant theme of an applicant's history.[28]
2. As for the former, the underlying contention seems to be that when one has regard to the timeline of offending for this Applicant - and the abovementioned timeline in the written submissions runs from 2006 to 2017 - apart from some traffic offences in Queensland in 2008 and New South Wales in 2011, the only really serious offending occurred during a "bad phase" from 2013 to 2014. Further, that from mid-2015, the Applicant has been in immigration detention and has not had a chance to commit further offences.
3. As for the latter, the contention seems to be that on a comparative basis, the Applicant's history of offending did not place him in a high risk category of recidivism and danger. It was noted that in WKCG, an applicant who had served significant separate periods of actual imprisonment for manslaughter and drug dealing was assessed as having a "low-moderate" risk of recidivism.[29] The contrast with the offending in BHYK was then discussed. It was noted that the Applicant in BHYK had a 24 year criminal history of violent offences including grievous bodily harm, various other assaults and damage to property. It was further noted that (1) the Applicant in BHYK had a personality disorder and that upon assessment he constituted a "high risk of further violent offences" and (2) that he was a danger to the community.[30]
4. I respectfully disagree with the Applicant's approach to the assessment of danger. To my mind, it is too formulaic and otherwise has an overly dominant focus on what has occurred in the past (in terms of an applicant's history). I think that, instead, consideration should be given to what steps, if any, have been taken by this Applicant to demonstrate that previous factors suggesting a presumption of danger and recidivism have been brought under control and are capable of being managed, were the Applicant released into the Australian community.
5. I think a timeline based approach to an assessment of both the nature of the offending and the risk of recidivism is misplaced. The frequency of an applicant's offending as sought to be demonstrated by a timeline does not produce an understanding of the extent of the risk or likelihood of similar offending in future. An applicant may have committed offences - indeed serious offences - sporadically over say a ten year period. Alternatively, an applicant may, across that same ten year period, have led a blameless life for eight of those ten years before embarking on a spurt of offending in the final two years prior to going into detention. How that pattern of offending is depicted on a timeline does not inform either the nature of the offending or the risk of recidivism.
6. I also think an approach based on the competitive severity of the offending is likewise misplaced. The true measure of an Applicant's danger to the Australian community cannot be assessed by, for example, a cursory comparison between the nature of the offending before a decision maker with other more or less serious offending committed by applicants in other cases.
7. It was also contended on behalf of the Applicant that because - (1) the sentences for his most serious offences were wholly suspended, (2) the sentencing Magistrate did not impose the custodial terms, and (3) the state Attorney-General did not apply for a dangerous prisoner's order - the Applicant ought not be perceived as a risk, or danger, to the community.[31] I have misgivings about such a contention in circumstances where:
   • (i) regardless of whether he spent time in actual custody, the sentencing court nevertheless regarded the assault occasioning bodily harm and the sexual assault (especially the former) as "most serious" and committed in "aggravated" circumstances;
   • (ii) while noting the Applicant had been "impacted" by alcohol at the time of committing the serious offences, it is most unlikely the sentencing court had any expert psychological evidence before it, such as to give the court insight into the obviously fundamental, recurring and unresolved role alcohol abuse played in the commission of these serious offences;
   • (iii) while noting the Applicant was not "usually" someone who was offending at a serious level, the sentencing court does not appear to have had the Applicant's full criminal record before it at the time of sentencing.[32]
8. The further point is this: the sentencing court in my respectful view, correctly assessed the Applicant's danger to the community at the time of sentencing [my underlining]. To my mind, the most critical component of the assessment factors stated in WKCG involve the forward-looking or predictive exercise of forming a view as to the likelihood of an applicant re-offending and relapsing into criminal activity, and, if so, the extent to which such a relapse presents a danger to the Australian community.
9. As will be explained in detail later in these reasons, this Applicant's issues with alcohol remain unresolved. There is no evidence of him being under the care, treatment or supervision of a psychiatric or psychological therapist for his predilection towards abusing alcohol. In the absence of any such treatment or management plan addressing this issue, I am not comfortable in concluding the Applicant does not present a risk to the Australian community.
10. The requirement for evidence of a treatment or management plan was emphasised in BHYK. In finding that BHYK was a danger to the Australian community, the Tribunal noted:
    1. "In terms of whether there is a real or significant risk or possibility of harm to one or more members of the Australian community, we find the evidence supports a conclusion that there is such a risk and we are 'comfortably satisfied' with making such a finding. On the evidence of Dr Walker, there is a high risk of BHYK reoffending. On the evidence of Dr Collins, there is a moderate risk. Her opinion is, however, in the context of there being a proper management plan in place and a supportive environment.
    2. We are not satisfied from the evidence before the Tribunal that adequate arrangements of the kind contemplated by Dr Collins have been made... We have no update on that plan... Thus, we are not satisfied with present plans for the ongoing rehabilitation that BHYK would need in the Australian community.
    3. While we acknowledge that the risk of recidivism tends to decline with age, and we note BHYK's stated intention that he will not return to the use of alcohol or drugs, this is untested, and given evidence as to his sometimes being impulsive and aggressive, we find there is a real risk of his reoffending and of consequent harm to members of the Australian community." [33]

DOES THE APPLICANT MEET THE CRITERION IN SUBSECTION 36(1C)(b)?

1. The response to this question involves a consideration of two issues:
   1. whether the Applicant has been convicted by a final judgment of a "particularly serious crime"; and, if so,
   2. whether the Tribunal considers, on reasonable grounds, that the Applicant is a danger to the Australian community.

Has the Applicant been convicted of a "particularly serious crime"?

1. I agree with the Respondent's contention that the Applicant has been convicted of two "particularly serious crimes" or "serious Australian offences".[34] Specifically, on 31 October 2014, the Applicant was convicted of:
   • (i) 1 count of assault occasioning bodily harm pursuant to s 339(1) of the Criminal Code 1899 (Qld). This offence is punishable by imprisonment for 7 years;
   • (ii) 1 count of sexual assault pursuant to s 352(1)(a) of the Criminal Code 1899 (Qld). This offence is punishable by a maximum penalty of 10 years imprisonment.
2. Each of those two relevant offences: (a) involves violence against a person,[35] and (b) are offences punishable by imprisonment for a maximum term of not less than 3 years.[36]

Is the Applicant a danger to the Australian community?

1. The starting point for that assessment, to my mind, arises from a reference to the totality of his offending. His history contains more than just an apparent run of clumsiness or bad luck as causes for the conduct. The causes are more significant than that: the Applicant clearly has some sort of deficit in his capacity to distinguish right from wrong in circumstances involving: (1) the sacrosanct nature of the personal rights of others, and (2) the fundamental and crucial requirement to respect the laws of this country, and to submit to lawful authority deriving from those laws, as and when he is reasonably required to do so.
2. The history reveals an absence of any compulsion in the Applicant to respect the law and the citizens it is designed to protect. On the contrary, whether the given activity involves driving a motor vehicle or an amorous advance towards someone piquing his interest, the Applicant seemingly does as he wants or otherwise thinks he can get his own way.
3. The nature of his offending can be divided into three categories:

The circumstances of the incident on 25 August 2013 giving rise to the assault occasioning bodily harm and sexual assault, were they to be repeated, even in a remotely similar fashion, would obviously render the Applicant a danger to the Australian community. He befriended a female whom he met at a nightclub. At the end of the night, she agreed to drive both the Applicant and three other men home. Upon delivering the Applicant to his dwelling, she agreed to enter the dwelling. Following some apparently general conversation, there followed some suggestive conduct and discussion on the part of the Applicant. Much of that can be construed as either untoward or, on another reasonable view, menacing. The agreed [my emphasis] Schedule of Facts reveals:[37]

• he convinced the victim to go into his bedroom;
• he told her he had nine children to nine different women;
• he told her that "every woman I get I want things done my way, when I say no I say no, when I say yes, I say yes";
• he commenced a physical approach by rubbing the top of her thighs. This culminated in her telling him to stop;
• she requested to leave. He refused that request, stood up and closed the bedroom door;
• he told her there was a gun in his drawer and told her to pick it up;
• he intensified his unwelcome physical advances by pushing her on to the bed with his arms; grabbing her head and tilting it backwards; attempting to insert his tongue into her mouth (which she successfully resisted); pushed his erect penis against her genitals and stomach;
• he further intensified his physical approach by grabbing at her bra causing it to tear at the front. This was followed by a request from her to stop, accompanied by a not unreasonable spitting (by her) into his face;
• he admonished her with "no woman has ever done this to me. You are going to regret this";
• she managed to escape the bedroom and ran towards the front door;
• he followed her, caught up with her and punched her in the jaw and lip;
• she fell to the ground and he slapped her on top of the head;
• she got up and again made for the front door. This time she successfully exited the Applicant's dwelling;
• he nevertheless followed her and again caught up with her as she was walking down the front stairs;
• he then pushed her from behind, causing her to fall to the ground and injure her ankle;
• she eventually made it to her car whereupon she locked herself in, drove off and then alerted Police.

1. Perhaps any assessment of how the Applicant presents a danger to the Australian community is best informed by having regard to the reaction of one of his housemates to the Applicant's attack on the victim. The agreed Schedule of Facts reveals that when the Applicant and victim entered the Applicant's dwelling, they found a male sleeping on the couch. Upon presumably witnessing the incident culminating in the assault resulting from the Applicant punching her in the jaw and lip followed by him slapping her on the top of the head, the male on the couch admonished the Applicant as follows: "... why are you doing this to a woman, you need to stop!" The Applicant's reaction was to tell the man to shut up. Even after this admonishment by his housemate, the Applicant continued with the assault by pushing the victim down the front stairs causing her to fall to the ground and injure her ankle.[38]
2. The housemate was clearly alarmed by the Applicant's violence towards the female victim. He was also clearly of the view that the Applicant was behaving dangerously towards her, hence his admonishment. There seems little doubt to me that the conduct giving rise to the serious and violent physical and sexual assaults on the victim does render the Applicant a danger to the Australian community.
3. The sentencing Magistrate thought that the physical assault, in particular, was "most serious" and that it was aggravated by the fact that he assaulted her in circumstances where she was trying to escape from him. Little, if any, comfort can be taken from the sentencing Magistrate's remarks about the Applicant being "...not someone who is usually offending at a serious level."[39] The seriousness of the offences can be objectively measured against the sentences imposed:
   • for the assault occasioning bodily harm - 9 months imprisonment (with immediate parole); and
   • for the sexual assault - 1 year imprisonment (suspended for 2 years).
4. The extent to which an Applicant presents a danger to the Australian community should be assessed from: (1) the factual circumstances surrounding the offending; (2) the actual sentence imposed for that offending; and (3) whether the sentencing court found the offending to be serious. Factors relevant to a particular Applicant mitigating in favour of any abatement as to how the sentence is to be served are of minimal, if any, value in making that assessment.

B. Driving Offences: driving whilst under the influence and unlicensed driving

1. There seems little doubt the Applicant is frequently not able to distinguish right from wrong when assuming control of a motor vehicle. He has a sizeable number of both drink driving and unlicensed driving offences.
2. As mentioned earlier in these reasons, on 2 August 2014, he was detected while driving a motor vehicle with a blood alcohol concentration of 0.184. This is almost 3.7 times over the legal limit of 0.05. He was fined $1,200 and disqualified from driving for 12 months.[40]
3. In its supplementary Statement of Facts[41], the Respondent discloses the Applicant's history of combining the consumption of alcohol with operation of a motor vehicle as it has been detected and punished in other Australian states, most notably, New South Wales and Victoria.[42]
4. At the Fairfield Local Court on 8 February 2012, the Applicant was:
   • convicted and fined the sum of $350 with his license disqualified for 6 months for driving with a middle range concentration of alcohol;
   • convicted and fined the sum of $300 with his license disqualified for 12 months for driving with a middle range concentration of alcohol.[43]
5. Also in its supplementary Statement of Facts, the Respondent noted the Applicant had a number of outstanding charges (and related warrants) for various offences which have since been struck out as a result of the Applicant being taken into immigration detention. Focusing specifically on the drink-driving matters, they are variously noted as follows:
   • Melbourne Magistrates Court on 2 February 2017:
     • "Ex presc conc 3 hrs - breath - drive - vehicle" (5 counts);
   • Sunshine Magistrates Court on 19 September 2012:
     • "Drive whilst exceeding P.C.A. (0.00%)"[44] (3 counts);
     • "Drive whilst P.C.A. 0.05% or above" (2 counts).[45]

1. In terms of unlicensed driving, the Respondent's supplementary Statement of Facts discloses that at the Fairfield Local Court on 8 February 2012, the Applicant was convicted and fined the sum of $200 with his license disqualified for 6 months.[46] In addition, as part of the offences and/or warrants which have since been struck out as a result of the Applicant being taken into immigration detention, the Applicant's other disqualified driving matters can be noted as follows:
   • Melbourne Magistrates Court on 2 February 2017:
     • "unlicensed driving";
     • "drive vehicle without a licence" (2 counts);
     • "use unregistered motor vehicle - highway";
     • "drive whilst authorisation suspended".[47]
2. There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. The various offences of drink driving and unlicensed driving clearly point to an incapacity in this Applicant to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
3. I have similar concerns about the Applicant's failure to realise the potential adverse impact arising from repeated offences of unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
4. Although the Applicant's driving offences may, at first blush, be considered "minor", when viewed holistically relative to the balance of his history, the recurrent theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself, significant. As previously emphasised, "laws to protect users of the road go to the essential safety of the community."[48] His convictions for assault are undoubtedly more serious than his driving/traffic convictions. However, his repeated failure to understand right from wrong when operating a motor vehicle - be it drinking and driving, driving without a licence, or driving an unregistered motor vehicle - can only lead me to conclude that this component of his history also reveals him to be a danger to the Australian community.

C. Offences indicating a refusal to follow lawful authority

1. The theme of (at best) an indifference to lawful authority or (more likely) a refusal to submit to such authority is also evident from the Applicant's offences. As mentioned above, he has been dealt with in the Brisbane Magistrates Court:
   • on 27 November 2013 for "fail to leave licensed premises" and "assault or obstruct police officer" (both committed on 10 November 2013) for which he was fined $200[49] and had a banning order imposed upon him;
   • on 19 December 2013 he was dealt with for "failure to appear in accordance with an undertaking as to bail" (on 9 December 2013), no conviction was recorded.[50]
2. Again, with reference to the Respondent's Supplementary Statement of Facts,[51] it is to be noted that on 2 February 2017 at the Melbourne Magistrates Court, there were also the following charges proffered against the Applicant:
   • "drunk in a public place";
   • "criminal damage (intent damage/destroy)";
   • "fail to answer bail".[52]
3. To be fair to the Applicant, I will again point out that these charges and/or warrants were struck out and/or cancelled as a result of his being taken into immigration detention. It is not clear to me what the status of these charges would be were he to be released from immigration detention. I view this third category of offending as perhaps not quite as serious as the first two categories but regard the offences as an evolutionary manifestation of the conduct giving rise to the earlier two categories of charges. While this third category of offences may not by themselves render the Applicant a danger to the Australian community, when viewed in holistic terms with the totality of his offending they clearly derive from the conduct that most certainly renders him such a danger. It is mainly for the purposes of completeness and relevance that I have mentioned this third category of offences here.

The Medical Evidence - how does it inform the "danger" consideration?

1. The recurrent theme both in the Applicant's life and his offending has been his serious problem with alcohol. Any fulsome assessment of his risk of re-offending and recidivism necessarily involves an examination of how alcohol has affected the course of his life and how it has impacted upon his offending. There seems to be a psychological element behind his problems involving him resorting to alcohol when confronted with anxious and stressful situations. There seems little or no doubt alcohol was the primary disorienting factor affecting his behavioural compass when he committed the assault occasioning bodily harm and the sexual assault offence. Alcohol has also been a cause behind termination of his previous employment.[53]
2. An assessment of the Applicant's risk of re-offending and recidivism involves a consideration of this question: were he to be released back into the community, what is the risk of the Applicant relapsing into alcohol use and abuse? The hearing had the benefit of two reports. The Respondent commissioned a report from the clinical forensic psychologist, Dr Gary Banks, who produced a report dated 13 February 2017.[54] The Applicant initially sought to rely on a report by the Clinical Psychologist, Ms Catherine Bone, who produced a report dated 28 November 2016.[55] Subsequently, in the Applicant's evidence in reply, it was said on his behalf: "A_s the applicant does not have the funding to pay for Ms. Cathy Bone to attend the hearing, the applicant will not be relying on the psychologist report of Ms. Cathy Bone and requests to examine Dr. Gary K. Banks during the hearing."_[56]
3. Given (1) the novelty of this matter, (2) for the sake of completeness and (3) out of fairness to the Applicant, I propose to discuss both reports. Dr Banks assessed the Applicant as: "Overall... being in the medium range for risk of general recidivism, and overall in the low-moderate range for risk of sexual recidivism". Dr Banks was in no doubt about the major factors contributing to his risk profile. He thought they were: "...those that were related to his significant alcohol use, particularly as all of his offences had occurred under the influence of alcohol." Dr Banks assessed the Applicant's alcohol use and found that he "...scored in the medium-high range, which further demonstrated his previous alcohol dependency."[57]
4. There seems little doubt in Dr Banks' mind about the primary factor influencing the Applicant's risk of recidivism: "... it is my opinion that [the Applicant's] risk of recidivism and re-incarceration would be significantly reduced if his risk of relapsing into alcohol use/abuse reduced."[58] While noting the Applicant said he had previously attended Alcoholics Anonymous meetings, Dr Banks noted the Applicant "... is yet to complete any form of relapse prevention program. Furthermore, [the Applicant] stated that he believed he could stop drinking by putting his mind to it, getting a good job, house and relationship - though he has not had any opportunity to do this post being placed in detention. This is referred to as abstinence self-efficacy (i.e. his confidence in his own ability to remain alcohol free), but remains untested as yet, and cannot be unless he is released from detention."[59] Despite what the Applicant may have told Dr Banks about abstaining from alcohol and positively reconfiguring his life, one wonders why this attitude did not prevail during the period from August 2010[60] until July 2015 (when he was taken into immigration detention), during which alcohol prominently features as a factor in his pattern of offending. He plainly had ample time to address his issues with alcohol and to reform his lifestyle before being placed into immigration detention. He never did so.
5. The Applicant's possible release from detention may not be the panacea he anticipates. On the contrary, Dr Banks thought: "Release from incarceration or detention also represents a profound risk factor for individuals in the sense of wanting to 'celebrate' new-found freedom and 'test' self-control skills. Similarly, his level of unrealistic planning for his future also elevates his scores on risk assessment subscales regarding manageability and Future Plans."[61]
6. Dr Banks also thought the Applicant's "...continued smoking incrementally increases his likelihood of drinking relapse". In the absence of submitting to appropriate psychological therapies, Dr Banks thought the Applicant's likelihood of relapsing was a genuine prospect: "Regardless of his motivation to change his drinking behaviours or attend treatment for his alcohol use, if he remains in detention, there is no access to any such psychological therapies."[62]
7. The Applicant has produced several statements supporting him together with certain certificates he has attained since being in custody.[63] None of this material squarely addresses the adverse impact of alcohol on his life with anything approaching the level of insight and expertise of Dr Banks. One of his referees (a legal practitioner working in personal injuries law) says: "I am of the view that his chances of re-offending are very low. This is because he has now learnt the consequences of alcohol. The cancellation of his visa has been a great deterrence to him."[64] Nothing more is said about the Applicant's issues with alcohol. Another of his referees thought: "...he admitted that became alcohol (sic) and the amount consumed back then caused him to be in trouble, specially (sic) when people provoke him he would act violently towards those who initiated the provocative mood to him."[65] There is further commentary about the Applicant being "...a changed man" wanting to be given "...another chance so that he can move forward positively and be a good citizen..."[66] but nothing further about the role alcohol has played in the Applicant's life. Similarly, a range of certificates obtained while in custody are tendered by the Applicant that do him credit. None of them speak to the Applicant's issues with alcohol and are not informative about any demonstrated capacity to avoid a relapse. I therefore prefer the report of Dr Banks over the material tendered by the Applicant.
8. Dr Banks' concluded opinion is this:

"On the basis of this assessment, it is in my opinion that if [the Applicant] were to be released into the community and relapsed into alcohol dependency, his risk of recidivism would remain in the medium range at best, and possibly increase at worst, depending on the presence of risk factors such as unemployment, engagement with antisocial peers and a lack of structured, pro-social activities."[67]

1. It is similarly clear from Dr Banks' report that the Applicant - perhaps understandably - approached his interview with Dr Banks with an intention to present himself as a positive and well-adjusted individual with a ready capability to self-control his way out of his issues with alcohol. Dr Banks had misgivings about that (which I share): "It is my opinion, that this in combination with his lack of insight into the source of his difficulties and the lack of insight into the effort required to change his drinking behaviours, puts him at significant risk of relapsing into alcohol dependency."[68]
2. There appears to be a consistent theme of the Applicant having been subjected to and having experienced traumatic events while in Sudan, including as a child. Assuming the experiences recounted by the Applicant are truthful, then according to Dr Banks, the impact those experiences "...would have had on his beliefs about himself, others and the world around him, is likely to have been significantly negative thereby impacting on his developing emotion regulation and stress control abilities throughout his adolescence." [69]
3. Dr Banks is in no doubt that was he to remain in Australia, the Applicant's issues with alcohol (and thus his propensity to re-offend and constitute a danger to the Australian community) warrant "...access [to] psychological therapies to commence addressing these issues."[70] This recommendation led me to a segway at the hearing causing me to - given the novelty of this application - suggest to the parties some type of "agreed outcome" whereby the Applicant be allowed a visa but "conditioned" in the sense that it contained something akin to reporting requirements, much like a parole order in the criminal courts. The parties duly obliged the Tribunal and followed up with this request, for which the Tribunal is grateful. I shall discuss the outcome of that segway later in these reasons.
4. The Applicant commissioned a report from the clinical psychologist, Ms Catherine (Cathy) Bone, whose report is dated 28 November 2016. It would, in my respectful view, be trite for the Tribunal to disregard the report of Ms Bone in circumstances where the Applicant did not have the resources to fund the cost of her time to give evidence. Ms Bone does have something to say about the Applicant's risk of sexual re-offending and his risk for alcohol abuse and dependence, based on certain testing methodologies.
5. Prior to any discussion of her findings, there is one significant and inescapable difficulty with the factual basis on which Ms Bone's report has been premised. She has clearly misconstrued or misinterpreted the factual circumstances surrounding the Applicant's assault and sexual assault offences. Further and specific details of this fundamental error appear at paragraph 40(a) of the Respondent's Statement of Facts, Issues and Contentions.[71] Suffice it to say that Ms Bone's comprehension and recitation of critical aspects of the circumstances of those offences is clearly inconsistent with the agreed Schedule of Facts relied upon by the sentencing Magistrate.
6. Be that as it may, Ms Bone performed certain testing upon the Applicant. Applying the Static-99 test, Ms Bone thought the Applicant represented a "low risk" of sexual re-offending. This compares to the findings of Dr Banks using the same testing methodology (albeit an updated version thereof: the Static-99R test). He thought the applicant represented an "average risk" for sexual recidivism. Dr Banks told the hearing the difference in risk profiles is most likely due to different versions of the testing methodology used by each practitioner.
7. In terms of his risk profile for alcohol abuse and dependence, Ms Bone thought the Applicant represented a "low risk".[72] Using the same "AUDIT" test Dr Banks was of a different view:

"The [testing] tool was administered for two different time-points; one to illustrate the period that [the Applicant] self-reported his drinking was heaviest in 2013, and secondly for the year preceding his detention. For the period around 2013 when [the Applicant] reported that he was drinking daily and had received warnings from his employers for being intoxicated and was ultimately dismissed, his score indicated a high level of alcohol use, and likely alcohol dependence. When administered for the twelve months prior to his incarceration, when [the Applicant] self-reported that he drank once every one to two months and replaced bourbon spirits for beer or wine, [the Applicant's] score represented a medium level of alcohol problems, and likely hazardous drinking."[73]

1. The discrepancy between Ms Bone and Dr Banks may have its explanation in the uncertainty as to which timeframe Ms Bone assessed. If it was for the 12 month timeframe preceding her assessment, her finding of "low risk" is explainable due to the Applicant not being exposed to alcohol during that period because he was in detention.
2. I feel compelled to prefer the report of Dr Banks, given: (1) the Applicant's non-reliance on Ms Bone's report, (2) that her evidence was thus not tested in cross-examination (to allow a proper balancing of her report and that of Dr Banks), and (3) her very significant misconstruction of the factual circumstances of both assault offences. More significantly, I am of the view that the Applicant's issues with alcohol remain unresolved. To quote the Respondent's contention: "He has demonstrated limited insight into his alcohol abuse, and there is no concrete evidence before the Tribunal that he has sufficiently and appropriately managed this issue."[74]
3. There is, in my view, simply too great a deficiency between any reliably demonstrated changes in the Applicant's drinking behaviours and a properly verifiable and completed course of psychological therapies to address his issues with alcohol. The state of the evidence is suggestive of the Applicant being at real risk of relapsing into abusing alcohol in the future and thus committing further offences of a dangerous nature. Were he to be released back into the community at this juncture, I have a firmly held apprehension, based on the above reasonable grounds, that the Applicant would be a danger to the Australian community.

1. As mentioned earlier in these reasons, at the hearing I enquired about the possibility of granting the Applicant a protection visa with conditions. My specific thought involved a visa conditioned by, for example, compulsory reporting requirements (similar to a parole-based order) with perhaps an agreed regime of testing for the presence of alcohol and/or illegal substances in the Applicant's system.
2. Given the novelty of the present application and the possibility of perhaps a novel solution, the parties agreed to adjourn the hearing for a couple of weeks to explore the possibility of a conditional visa.[75] I am satisfied it is not possible for any relevant condition to be made in relation to the protection visa for which the Applicant has applied.
3. The Applicant applied for a Protection (Subclass 866) visa, which was refused by a delegate of the Minister pursuant to s 65 of the Act. This refusal was based on the delegate not being satisfied that the Applicant met the criterion in s 36(1C) of the Act.
4. Section 41 of the Act specifies, inter alia, that (1) visas may be subject to specified conditions, and (2) the Minister may specify that a visa is subject to such conditions, as are permitted by the Migration Regulations 1994 as they relate to s 41.
5. Relevantly, Regulation 2.05 provides:

"(2) ... the conditions that the Minister is permitted to impose on a visa are the conditions (if any) specified as permitted for that Subclass of visa in Schedule 2."

Note: Conditions referred to by number in Schedule 2 are set out in Schedule 8: see the definition of condition in regulation 1.03."

1. In turn, Regulation 1.03 provides that "condition" means a condition set out in a clause of Schedule 8, and a reference to a condition by number is a reference to the condition set out in the clause so numbered in that Schedule."
2. As mentioned, the Applicant has applied for a Subclass 866 visa. In Schedule 2, clause 866.611 says the only "condition" for this type of visa is condition 8559. In Schedule 8 condition 8559 provides that:

"The holder must not enter the country by reference to which:

(a) the holder; or

(b) for a member of the family unit of another holder - the other holder;

was found to be a person to whom Australia has protection obligations unless the Minister has approved the entry in writing."

1. I accept the Respondent's contention that (1) there are no other relevant conditions specified in Schedule 2 of the type I originally suggested, and (2) the only condition that could attach to the visa sought by the Applicant is condition 8559.[76]

1. I am mindful that if this Protection (Subclass 866) visa is refused, the Applicant could quite likely be detained on an indefinite basis (unless another solution is found). The Applicant has already had his Humanitarian visa cancelled pursuant to the provisions of s 501(2) of the Act. Subsequently, he could only apply for a protection visa or a visa prescribed by the Regulations (if any).[77]
2. The difficulty here is that the Minister's delegate has refused to grant a protection visa. There is, presumably, no other visa for which the Applicant can apply. Regardless, the only issue before this Tribunal is, and can only be, whether the Applicant does or does not meet the criterion in s 36(1C) of the Act. I cannot predicate this decision on whether the Applicant can apply for "a visa" if the Protection (Subclass 866) visa were to be refused.

Additional Material Sought to be relied upon by the Applicant

1. The substantive hearing in this matter was on 22 March 2017. The resumed hearing was on 6 April 2017. On 7 September 2017 the Applicant sought to file and rely upon certain documents comprising material received pursuant to a Freedom of Information ("FOI") request as well as certain additional certificates attained by the Applicant in detention.[78] Notably, (1) the FOI request was made on 13 April 2017, well after completion of the hearing, (2) there is no explanation as to why the FOI request was not lodged earlier, and (3) nor was the Tribunal or the Respondent put on notice of any intention - at or post the hearing - to rely on the documents.
2. I determined the point as to admissibility of the additional material in favour of the Applicant. There is authority for the proposition that where a decision has not been handed down, the Tribunal should take the further material into account.[79] The salient question is what weight can be given to this material?
3. Viewed in total, I am not convinced the material evinces anything to dissuade me from the view that this Applicant's unresolved issues with alcohol render him at risk of

re-offending thus constituting a danger to the Australian community pursuant to

s 36(1C)(b) of the Act. 4. I think the Respondent's contention is fairly made.[80] This additional material now sought to be relied upon seeks to convince the Tribunal that the Applicant's behaviour has been good and positive in the controlled environment of immigration detention. Be that as it may, the real challenge is to try and predict his likely behaviour were he to be released back into the Australian community. Given the largely untreated and unresolved nature of his issues with alcohol, I consequently agree with the Respondent's contention that the Applicant's past behaviour, when he was in the Australian community, is the most reliable indication of how he would behave were he to be returned to that community. Thus any contention or evidence about this Applicant's behaviour while in detention can only be given limited weight. 5. As noted by the Respondent, not all of this additional material speaks glowingly of the Applicant. There is, for example, evidence of an incident that apparently occurred on

18 July 2015 recording certain abusive and aggressive behaviour exhibited by the Applicant (while a detainee) towards officers responsible for his supervision.[81] 6. At the risk of repeating myself, I cannot glean anything from this additional material to change my previously expressed view. There is no clear and demonstrable management or other treatment plan involving rehabilitation of the Applicant's issues with alcohol. At least not to the extent that one could confidently expect him to be re-introduced into the Australian community with minimal risk of returning to alcohol and to the pattern of offending for which it has been primarily responsible. 7. The observation of Dr Banks is telling: "... the notion of achieving abstinence in an enforced 'dry' setting does not equate to achieving abstinence in the community with ready access to alcohol."[82] As observed by the Respondent, this Applicant has not previously participated in or completed any structured or clinically controlled - drinking or alcohol abstinence treatment programme_.[83]_ 8. The Respondent's certificates of attainment also contained in the additional material cannot be given much weight in the determination of whether he poses a danger to the Australian community for the purposes of s 36(1C)(b) of the Act. Notably, none of the completed courses have been rehabilitative in nature and none deal with addressing the Applicant's issues with alcohol. These certificates, while going to the credit of the Applicant, are of limited use in properly informing any assessment of the danger that the Applicant poses were he to be returned to the Australian community. 9. The often double-edged nature of purported reliance upon material after the conclusion of a hearing seems apparent from a point noted by the Respondent. Although not determinative for present purposes, I think it is worth referring to. In the further material lodged on behalf of the Applicant, it is contended that the attached material points to a finding that the Applicant is not a "significant danger" to the Australian community.[84] This, of course, is not the question posed by the criterion appearing in s 36(1C)(b) of the Act. The question is concerned with whether the Applicant constitutes "a danger" to the Australian community and not the perhaps higher threshold of a "significant danger".

1. For the reasons outlined above, I find that the Applicant is at real risk of abusing alcohol in the future and of committing further offences of a dangerous nature. I consider his issues with alcohol to be unresolved to the extent that I cannot be convinced that an appropriate treatment, management or other rehabilitative programme has been completed by him (or is in the process of being completed by him).
2. In terms of whether there is a real or significant risk of danger to one or more members of the Australian community, I am comfortably satisfied that the evidence supports a conclusion that there is such a risk.
3. I find that the Applicant does not satisfy the criterion in s 36(1C)(b) of the Act, because: (1) the Applicant has been convicted by a final judgment of a particularly serious crime, and (2) he is a danger to the Australian community.

1. The decision of the Minister's Delegate dated 8 September 2016 refusing to grant the Protection (Subclass 866) visa should be affirmed.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

..............................{SGD}...................................

[1] The Applicant's name has been suppressed as a result of an automatic confidentiality order.

[2] (or the Tribunal standing in the shoes of the decision maker)

[3] See Exhibit 4 (Part B - Supplementary T documents), ST1, p 158.

[4] See Exhibit 1(b) p 22 - Transcript from Brisbane Magistrates Court dated 5 November 2014.

[5] See Exhibit 5, 'Additional Documents (s 38AA)', AD2, p 76 - 77.

[6] See Exhibit 3, Respondent's Statement of Facts Issues and Contentions ("Respondent's SFIC") at [13].

[8] See Exhibit 6, Further Additional documents, FAD1, 'National Police Certificate dated 27 July 2015'.

[9] See Exhibit 6, Further Additional documents, FAD1, p 3 and FAD 2, p 7.

[10] See Exhibit 6, Further Additional documents, FAD4.

[11] See Exhibit 3, Respondent's SFIC at [23].

[12] See s 36(1C)(b) of the Act. Note: It is also open to the Tribunal to find that on reasonable grounds the Applicant is a danger to Australia's security pursuant to s 36(1C)(a), however this contention was not pressed by the Respondent.

[13] Direction No. 65 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA ('Direction No. 65').

[14] See Exhibit 3, Respondent's SFIC at [26].

[15] Subsection 36(1C) was inserted into the Act by item 9 in Part 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

[16] Note: the date of proclamation for the relevant part is not immediately apparent. However, the cited date is the day after royal assent - being the date most other parts take effect.

[17] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 Explanatory Memorandum ("the Explanatory Memorandum").

[19] See Exhibit 3, Respondent's SFIC at [32].

[20] See WKCG and Minister for Immigration and Citizenship [2009] AATA 512 ("WKCG") at [25] (paraphrased).

[21]See "WKCG" at [26]. Note: The learned Deputy President said "the risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration."

[23] See "WKCG" at [31] per DP Tamberlin.

[24] See "WKCG" at [29] per DP Tamberlin.

[25] BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [35] per DP Handley and Member Connolly. Note: this test was upheld on appeal to the Federal Court in SZOQQ v Minister for Immigration and Citizenship [2011] FCA 1237. On appeal to the Full Court of the Federal Court and the High Court of Australia, this test / issue was not considered and was left open - see SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40; and [2013] HCA 12.

[26] See Exhibit 8, Submissions for the Applicant.

[29] See Exhibit 8 at [21] and [31].

[30] See Exhibit 8 at [21] and [33].

[31] Exhibit 8 at [17]-[18] and [25]-[27].

[32] See Exhibit 1(b) - Applicant's Bundle of Documents, annexure "F - Sentencing Remarks".

[33] BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [53], [54] and [55].

[34] See Exhibit 3, Respondent's SFIC at [34].

[35] See s 5(1) "serious Australian offence" (a)(i) of the Act.

[36] See s 5(1) "serious Australian offence" (b)(iii) of the Act.

[39] See Exhibit 1(b), Annexure F - Sentencing Remarks, p 20.

[42] See Exhibit 6, Further Additional Documents (s.38AA), pages 7 - 13.

[44] One would assume that because he was on his provisional licence (or Victorian equivalent) that there is a 0% tolerance for driving with a blood alcohol concentration.

[48] See Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] per Member Webb.

[53] See Exhibit 3, Respondent's SFIC at [38]; and Exhibit 5, AD4, Report of Dr Banks at pp 174 - 175.

[55] See Exhibit 1(b), Applicant's Bundle of Documents received 2 December 2016, (Annexure E), pp 7 -18.

[56] See Exhibit 2, Applicant's Evidence in reply at [4].

[60] The first time he was dealt with by a Court (namely, for the offences of being drunk in a public place and criminal damage) - see Exhibit 6, FAD, p 3.

[63] See Exhibit 2: Applicant's Evidence in Reply, Annexures A, B, C and D; and Exhibit 1(b): Applicant's Bundle of Documents and Statements, B - D.

[64] Exhibit 2, Annexure A, fifth paragraph.

[65] Exhibit 2, Annexure D, end of second paragraph.

[66] Exhibit 2, Annexure D, third paragraph.

[67] See Exhibit 5, AD4, p 176 at [72].

[72] The testing methodology used by Ms Bone was World Health Organization's Alcohol Use Disorders Identification Test ("AUDIT"). See Exhibit 1, Annexure E, page 15, line 265.

[73] Exhibit 5: AD4, pp 174 - 175 at [68].

[74] Exhibit 3, Respondent's SFIC at [41].

[75] The Tribunal is grateful for the assistance from the parties' representatives in this regard. See Exhibit 9 and 10.

[76] See Exhibit 10, Respondent's Submissions for Resumed Hearing, at [9]-[10].

[78] Exhibit 11: Email from Applicant's representative dated 7 September 2017 (10.41am) and attachments.

[79] See X v Minister for Immigration and Multicultural Affairs [2002] FCAFC 3 at [17] - [18].

[80] See Exhibit 12: Email from Respondent's representative dated 15 September 2017 (11.37am).

[81] See Exhibit 11 - p 84 of FOI documents.

[84] See Exhibit 11, email 1 of 4 from Applicant's representative dated 7 September 2017 (10.41am)