"They sat down opposite each other. The complainant went to roll a smoke. The offender moved closer and closer to the complainant and without warning he grabbed her by the throat and pushed her back onto the ground where he pinned her down by putting his knees on her arms. He put one hand over her mouth and used the other to pull down her tracksuit pants and underwear. He inserted his penis into her vagina and had sexual intercourse with her without her consent knowing that she did not consent. He did not use a condom and after about 15 seconds or so, he ejaculated inside her, at which point he desisted from the physical assault. He told her not to tell anyone or he would go after her family and kill her. The complainant pulled up her pants and returned to the area where SA and Chloe were".

9. The sentencing comments of Judge Woodburne indicate that the Applicant was cognisant of the fact that the victim was around 16 or 17. Judge Woodburne rejected the submission that the offence was committed without any apparent violence. Judge Woodburne noted "this was a forceful sexual assault. The offender pushed the complainant back to the ground and pinned her down. It is necessary to recognise that there is an inherent violence involved in the non-consensual sexual penetration regardless of whether such acts are accompanied by additional acts of violence". Judge Woodburne noted that the failure of the Applicant to wear a condom placed the victim at risk of disease or pregnancy. Judge Woodburne found that "this was a serious and frightening sexual assault committed on the complainant. He clearly traumatised her as evidenced by the contemporary accounts of her state and, as is to be expected of such an event of the present time, the victim clearly remains traumatised as was apparent when she was in a highly distressed state giving her evidence". Judge Woodburne found that the offence was a serious one and one that she believed fell within the mid-range of objective seriousness. Judge Woodburne imposed a term of imprisonment. Judge Woodburne fixed a non-parole period of three years and eight months noting that the Applicant would be eligible for parole on 5 March 2023 and that there was a balance of term of two years and ten months to date from 6 March 2023 and to expire on 5 January 2026.

1. In his statement provided to the Tribunal in support of the review, which is dated 15 November 2024, the Applicant stated that he took full responsibility for what he did. The Applicant stated that he felt bad for the victim and acknowledged that he destroyed her life and caused her severe trauma, and that this trauma will continue into her future and that he was deeply sorry about what he had done to her. The Applicant stated that he was ashamed of his offending because it was one of the worst offences you could commit in his culture. He stated that he had a daughter around the same age as the victim and that had this type of offending happened to his daughter it would have destroyed her life and his family's life.
2. The Applicant claimed that at the time of his criminal trial this was his first time in court or being in trouble with the law and that he found the experience "new and overwhelming". The Applicant stated that he could not follow all the details in court very well because of his poor English language. The Applicant stated that when he was in jail, he felt shame and isolation. He also felt that he could be bashed in prison and hence he kept himself busy by praying and working in the jail kitchen for 5 to 6 hours a day 5 to 6 days a week.
3. The respondent in the SFIC dated 17 December 2024 noted at paragraph 42 that the Applicant has continued to deny and minimise responsibility for his offending. The submission at paragraph 43 notes that "while denial of responsibility is not necessarily a risk factor for recidivism, it can be a risk factor''.
4. At hearing the respondent's representative noted that the Applicant had engaged in a continued pattern of denying and downplaying his offending by insisting that the sexual intercourse with the victim was consensual and indeed, that the victim, initiated contact.
5. At hearing the respondent noted that the Applicant gave recurrent evidence of having poor recall with respect to the offending because of the fact that he was intoxicated. This extended to the Applicant having no memory with respect to consent, no memory of not using a condom, and no memory of threatening to kill the victim if she told her family.
6. The respondent made reference to page 114 of the respondent's tender bundle which was a police record of interview conducted with the Applicant. The Applicant at this point in the interview noted that he was 100% sure that the victim agreed to have sex with him.
7. The respondent made reference to an assessment by a forensic psychologist Katie Martens dated 25 January 2021 at paragraph 39 of her report located at page 305 of the Applicant's tender bundle which noted that the Applicant "when discussing the current offence, it was evident that Mr H maintains that the sexual contact was consensual". Ms Martens also noted that the Applicant had stated that since he was found guilty of the offending that he must have done something wrong.
8. The respondent's representative noted that the Applicant was interviewed in Parklea prison 10 days after being interviewed by Ms Martens. The Applicant told the corrections officer that he did not rape the victim. At hearing the Applicant denied using the word "rape" in prison and that he would have referred to the offending behaviour as sexual intercourse.
9. The respondent's representative noted that on 25 May 2022, that the Applicant was interviewed by a corrections officer Kate Firman at Cessnock prison. The interview can be found at page 19 of the respondent's tender bundle. Ms Firman noted "he denies the police facts and maintains his innocence stating that the victim asked him to go for a walk with him into the bushes where she had kissed him and began touching him and they had intercourse". Ms Firman continues that the Applicant was adamant that it was consensual.
10. The respondent's representative made reference to the report of Ms Bostock and submissions made on the Applicant's behalf which contended that the Applicant's continued denial did not necessarily equate to a heightened risk of sexual recidivism. Ms Bostock noted at paragraph 68 of her report that "a study by Harkins and colleagues (2015) found that in a sample of 6891 sexual offenders, denial can act as a risk-reducing capacity for some when predicting sexual recidivism". The respondent noted that a report also referenced by Ms Bostock indicated that "a similar pattern to that reported by Nunes et al (2007) emerged here for Absolute Denial. Specifically, the low-risk deniers had a higher sexual recidivism rate than the low-risk admitters on this measure of denial. It has been postulated that denial may indeed be a risk factor for recidivism, but that it only influences recidivism when other risk factors are absent, as is the case with low-risk offenders (Lund 2000). The respondent posited that while denial of responsibility was not necessarily a risk factor for recidivism that it can be a risk factor and that denial of responsibility is a risk factor for recidivism in regard to otherwise low-risk offenders when other risk factors are absent, which the respondent submits is the Applicant's current state.
11. Ms Bostock in her report at paragraph 69 determined that "in terms of risk of reoffending, assessment with the LS/CMI indicated that Mr H is at low risk of reoffending. This finding is consistent with a similar risk assessment that was conducted in 2021. It appears that Mr H's risk was increased to medium, however it is not clear how this determination was made".
12. The Tribunal with respect to this consideration has had regard to the article provided at TB5 page 143 of the respondent's tender bundle titled 'Examining the Influence of Denial, Motivation and Risk on Sexual Recidivism" by Harkins, Beech and Goodwill from 2010 which concluded that:

"a great deal of effort is expended on attempting to overcome denial and increase motivation in offenders prior to treatment. Although it is obviously difficult to work with clients in denial or who lack motivation for treatment, this study did not find denial to have the expected relationship to sexual recidivism, the ultimate outcome of interest in most treatment programs. Indeed, the results of this study suggest that it is the high-risk offenders who are not expressing high levels of denial who are more likely to reoffend. These findings highlight the need for research evidence to verify whether factors routinely addressed in treatment actually function as many treatment providers presume".

13. The Tribunal notes that when the Applicant was interviewed by Ella Young a corrections officer in the Cessnock Correctional Centre on 22 July 2021 that the Applicant is recorded to have stated the following. "J ceased drinking after the offence occurred and he states he will never touch alcohol again. J states he was at a party at the time of his offences and the victim was friends with one of his friends. J states he believes his sentencing is fair and he realises he has done the wrong thing. J states he was unable to restrain himself in the state he was in, and he believes he should pay for the crime. J states his offences are against his religious beliefs as what he has done is considered adultery".
14. This evidence before the Tribunal is clearly indicative of the Applicant's state of mind with respect to his offending behaviour whilst in custody in July 2021.
15. The overall evidence is also indicative of fluctuating accounts with respect to culpability for the offending behaviour.

1. Ms Katie Martens at the time of her assessment of the Applicant, whilst he was in prison on 25 January 2021, determined that at that time he was suffering with a number of mental health conditions namely an adjustment disorder with mixed anxiety along with depressed mood. Ms Marten's opined that the Applicant was also suffering with PTSD symptoms given his experience of traumatic experiences. As a consequence of her assessment of the Applicant's mental health conditions at the time, Ms Marten's concluded that:

"with respect to likelihood of recidivism, major mental health concerns have been associated with increased potential for recidivism. Should Mr H access treatment or should his mental health concerns alleviate then this would be positive with respect to likelihood of further offences".

2. Ms Bostock reviewed the Applicant in her offices on 5 November 2024 after the Applicant had been released from immigration detention. Ms Bostock made reference to the findings of Ms Marten's from January 2021 which established that the Applicant at that time had been diagnosed with an adjustment disorder with mixed anxiety and depressed mood along with PTSD.
3. Ms Bostock noted that whilst the Applicant was in immigration detention he attended 13 sessions of the SMART Recovery program which she described as "an evidence-based recovery group program grounded in Cognitive Behaviour Therapy (CST) that supports people with substance dependencies or problem behaviours to lead a more balanced life. Notes indicate that these sessions covered topics including problem-solving, relapse prevention, identifying cognitive distortions, living a healthy lifestyle, formulating a change plan and acceptance". Ms Bostock notes that the Applicant's participation in the program was described as 'active'.
4. Ms Bostock further notes that whilst the Applicant was in immigration detention that he engaged with STARRTS. The documentation indicates that he had attended a total of 51 counselling sessions between 24 April 2023 and 6 August 2024. The counselling uncovered that the Applicant had experienced harassment, persecution and severe torture and trauma experiences in Burma. In addition to this an extended separation from his wife and children had a substantial impact on his mental health. The Applicant's counsellor at STARRTS concluded that as at October 2023, the Applicant was experiencing symptoms of depression, anxiety and PTSD.
5. Ms Bostock stated that her assessment undertaken of the Applicant on 5 November 2024 failed to identify any current psychological disorders.
6. The evidence before the Tribunal indicates that Ms Bostock undertook psychometric testing of the Applicant across several domains with respect to his psychological functioning.
7. With respect to the testing for current mood and testing for depression, anxiety and stress applying the DASS-21 the Applicant scored within the normal range for depression, anxiety, and stress.
8. Ms Bostock noted that given the Applicant had a history of traumatic events in his life as a Rohingya in Burma, and as a refugee who had fled persecution, she completed the post­ traumatic stress disorder checklist DSM-5. She found with respect to this diagnostic tool the Applicant's "responses are consistent with a range of PTSD symptoms including repeated, disturbing and unwanted memories of the stressful experience; feeling very upset when something reminds me of the stressful experience/s; avoiding thoughts, memories or feelings related to the stressful experience; avoiding external reminders of the stressful experience; blaming himself or someone else for the stressful experience and what happened after it; having strong negative feelings such as fear, horror, anger, guilt or shame; and being 'super alert' or watchful or on his guard. Despite these symptoms, he did not meet diagnostic criteria for PTSD across all symptom clusters".
9. Ms Bostock also administered the International Trauma Questionnaire described as an 18 question self-report measure focusing on the core features of PTSD and complex PTSD.
10. Once again Ms Bostock found that the Applicant's scores did not meet the threshold for diagnosis of these conditions on this measure.
11. Ms Bostock also administered the Adverse Childhood Experiences Questionnaire and as a result of the administration of this questionnaire Ms Bostock determined that the Applicant's score was not considered clinically significant, however, she did note that the Applicant indicated that he had experienced unwanted sexual conduct as a child.
12. Ms Bostock assessed the Applicant's current alcohol use, administering the Alcohol Use Disorders Identification Test, a screening tool used to assess excessive drinking, alcohol dependence and harmful drinking. The Applicant's score placed him in the low-risk range indicating that his alcohol use (if any) is generally safe and unlikely to cause harm.
13. In terms of risk assessment Ms Bostock noted that this assessment "is a process by which the likelihood of the person committing further offences is determined. This determination is typically based on the evaluation and consideration of two types of risks-historical (static) factors; and dynamic factors. Static risk factors are unlikely to change (e.g age at first offence) whereas dynamic risk factors are typically considered areas of treatment need (e.g poor problem-solving skills; use of drugs etc.)."
14. Ms Bostock noted that she assessed the Applicant's risk of general reoffending using LS/CMI assessment (Level of Service/Case Management Inventory) which she described "as a quantitative survey of offender attributes and situations that provides information about the level of risk/need across eight domains. It is widely used to assess risk by corrections departments both nationally and internationally". Ms Bostock noted that the testing reliability in terms of its predictive validity was strong and that research to date supported the use of this testing with different minority groups and across different demographics.
15. Ms Bostock provided the results of the Applicant's risk assessment at paragraph 54 of her report located in the Applicant's tender bundle at pages 19-20. The testing was undertaken across eight domains. With respect to criminal history Ms Bostock determined that there was a very low risk with respect to reoffending. The basis for this assessment was that the Applicant had no juvenile convictions, there is only one incident of offending, and the Applicant has not reoffended. Further to this he had not been punished during his period of imprisonment or immigration detention for misconduct and had not breached the conditions of his parole or the requirements of him being on the child protection register.
16. With respect to education and employment there was a low risk. Ms Bostock noted that the Applicant's ability to participate in education had been limited. The Applicant had no behavioural difficulties in school and had never been suspended or expelled. He had demonstrated over time an ability to secure and maintain employment and he had never been fired from employment and had positive relationships with colleagues and supervisors.
17. With respect to family and marital factors there was a low risk. Ms Bostock noted that despite the fact that the Applicant had been separated from his wife and children for an extended period of time, he would attempt to make daily contact. He described his marriage as mutually supportive. The Applicant had noted that his parents were deceased, and he maintained contact with family overseas where possible.
18. With respect to leisure and recreation there was a medium risk. This risk factor considers boredom and hence a propensity to engage in anti-social behaviour. There was no evidence of the Applicant being engaged in recreational clubs or sport and the evidence from the Applicant was that he worked all week and attended the mosque and engaged with members of the Rohingya community.
19. With respect to companions there was a very low risk as the Applicant had a current social network, was prosocial, was not involved in criminality and none of his friends had a criminal history.
20. With respect to alcohol/drug problems a very low risk. The Applicant stated that he did not use drugs and had been abstinent from alcohol use since his arrest in 2019.
21. With respect to a pro-criminal attitude/orientation Ms Bostock determined that there was a very low risk. This was on the basis that there was an absence of angry and hostile feelings. The Applicant had accepted responsibility for his crime. The Applicant had expressed respect for the Australian legal system. The Applicant's time in prison had helped him to understand the law and the justice system and that the Applicant felt that his sentence was appropriate for his crime.
22. With respect to antisocial patterns Ms Bostock determined a very low risk. The Applicant did not express criminal attitudes or long-term patterns of generalised trouble that would be considered to be consistent with psychopathy.
23. Ms Bostock concluded that the Applicant's overall score on the LS/CMI was 6 which placed him in the low risk of reoffending. Ms Bostock noted that the Applicant's score was below 97.7% of incarcerated male offenders and 81.8% of community-based male offenders in the North American normative sample.
24. Ms Bostock administered testing with respect to the risk of sexual recidivism. The test administered was the Static-99R. Ms Bostock noted that this test was widely used and exhibited moderate predictive accuracy. The Applicant's score under this assessment tool was a below average risk for being charged or convicted of another sexual offence.
25. Ms Bostock also administered the STABLE-2007 assessment which was designed to measure dynamic risk factors related to sexual recidivism for adult men convicted of sexual offences against a child or non-consenting adult. Ms Bostock noted that the Applicant was scored in the low range of criminogenic needs of STABLE-2007.
26. Ms Bostock noted that STABLE-2007 can be combined with Static-99R in order to provide "a composite assessment of risk/needs and to produce estimates of sexual recidivism, sexual recidivism with sexually motivated breaches, violence recidivism and any criminal recidivism both with and without breaches". Ms Bostock noted that the Applicant's composite assessment placed him in the well below average range at Level 1 "with a five­ year predicted sexual recidivism rate of 3.4% meaning that out of 100 individuals with similar risk factors, approximately three are expected to be charged or convicted of a new sexual offence within five years". Ms Bostock noted that "individuals placed in Level 1 are considered Very Low Risk using the standardised risk level framework". Concluding that "most individuals placed in Level 1 are expected to desist from criminal behaviour, even without a correctional response".
27. Mr Taverniti during cross-examination of Ms Bostock at hearing asked Ms Bostock whether the Applicant had disclosed that he had visited a prostitute on a number of occasions to engage in sex. Ms Bostock advised that she had not been aware of this. Ms Bostock was asked whether this omission by the Applicant would cause her concern. Ms Bostock stated that it would not cause her concern even if it was repeat behaviour undertaken on a weekly basis and that she did not believe that it would change her assessment of the Applicant with respect to sexual recidivism.
28. In cross-examination by Mr Taverniti Ms Bostock gave evidence that the static and dynamic assessment tools that she had used placing the Applicant in the low range were valid with respect to the assessment of risk, and that this testing had been applied to a large pool of sex offenders consisting of 23,000 people. Ms Bostock also gave evidence in cross-examination with respect to the application of the risk assessment testing and the findings made at paragraph 54 of the report.
29. Ms Bostock was asked by Mr Taverniti about whether the testing took into account denial with respect to the offending. Ms Bostock gave evidence that denial was not a demonstrated factor in reoffending. By example Ms Bostock stated that if the Applicant claimed that his punishment was unfair and that Australian laws were stupid that this would lead to a higher score with respect to this consideration and that she placed greater weight on the facts and the respective conviction.

1. Mr Pham has submitted at review that aside from the evidence of Ms Bostock with respect to risk assessment that there are multiple protective factors in relation to the Applicant's risk of reoffending in the community.
2. The first of these is that the Applicant has been the subject of strict parole obligations since his release from prison and that his parole conditions extend to at least January 2026. The Applicant is overseen by a parole officer Laura, and initially was required to engage with his parole officer weekly. However, this has now been reduced by Laura to once a month.
3. The second protective factor is that the Applicant is on the child protection register as a result of his offending, and this is in place until January 2026.
4. The third protective factor is that the Applicant is the subject of strict Bridging R visa conditions. Those conditions include that the Applicant must report to the Department as directed. The Applicant must not engage in violent or disruptive activities. The Applicant must notify the Department with respect to a change in residential address or a change in circumstances. That the Applicant must assist with the facilitation of his removal from Australia. The Applicant must obtain approval to work in certain occupations and must notify of a change in his employment details and must not engage in any activities prejudicial to national security. The Applicant must not acquire specified goods or to acquire goods or chemicals of a security concern. The Applicant must attend an interview with the Department when he is directed to do so. The Applicant must notify the Department of details of persons with whom he resides if he has been convicted of an offence that involves a minor. The Applicant must notify the Department with respect to travel, with respect to associations, and memberships, and contact with specified individuals and organisations. The Applicant must not perform work with minors, he must not approach a school or child-care centre, must not contact the victim or the victim's family members. The Applicant must notify of changes in personal details and changes in online names or profiles.
5. Mr Pham noted that when the Applicant was first released into the community, he was required to report to the Department on a daily basis between the hours of 8.30am and 2.00pm. The evidence indicated that condition 8401 had been varied so that the Applicant is now only required to report on Wednesdays between the above specified hours.
6. Mr Pham also submitted that consideration needed to be given to the fact that the Applicant prior to his offending on 25 December 2018 had no criminal antecedents, that the Applicant has been consistently of good behaviour since his offending and conviction and as noted the Applicant had served his lengthy custodial sentence and his period in immigration detention without any disciplinary issues. In addition to this the Applicant had been paroled at the earliest possible date.

1. Mr Taverniti has submitted that it is the Ministers view that the Applicant remains an 'untreated sex offender' as he has not to date, engaged in a sex offender's program and hence, this factor alone means that the Applicant is a "clear and present danger to the Australian community".
2. The Applicant gave evidence that he tried to engage in a sex offenders program whilst he was in prison, however he was told by prison authorities that he could not engage in this program.
3. This fact is corroborated in a report from Ella Young, a Corrective Services officer, already referred to and found in the respondent's tender bundle at TB2 page 15 which indicates under the paragraph 'Offence Related" that the Applicant "is not eligible for offence related interventions in custody".
4. During cross-examination of the Applicant by the respondent's representative at hearing, the Applicant was asked about his statement where he advised that he wanted to undertake a face-to-face course with respect to sexual offending. The Applicant confirmed that this was the case. The Applicant was asked whether he wished to take a course of this nature because he believed that he had a problem with sexual offending and the Applicant stated that he did not and that his lawyer had suggested it would be good for his future if he engaged in such a course.
5. The Applicant was also asked whether he believed he did not need to undertake sex offending rehabilitation. The Applicant's evidence at hearing was that whilst he was in prison he observed people undertaking courses with respect to sexual offending and that he enquired about attending such a course in jail but was not able to gain access to a course. The Applicant confirmed in his evidence that he had not undertaken a face-to-face sexual offending course since he had been released from custody but had undertaken a course with respect to sexual assault and had enquired about undertaking a course called Men Behaving Better. However, the Applicant had been advised that this course was more closely directed at domestic violence offending. The Applicant also confirmed that he had undertaken a sexual harassment course, and a course with respect to alcohol use and had also undertaken the Smart Recovery Program.
6. The Applicant reiterated in his evidence at the review hearing that he had made attempts to attend a sexual offending course whilst in prison, however no opportunity was made available to him, and the Applicant further advised that he believed that his attendance in such a course was 'essential'.
7. Ms Bostock was cross-examined by the respondent's representative with respect to the Applicant's engagement in a sexual offending program. Ms Bostock in her evidence advised that if a person is referred to a sexual offender's treatment program it is usually because they are deemed to be high risk. Ms Bostock identified that high-risk people fall into this category through strong criminal associations and drug use. Ms Bostock was asked questions with respect to paragraph 40 of her report noting that the Applicant had tried to enrol in a program to address his sexual offending while serving his prison sentence but had been advised by custodial staff that he could not. Ms Bostock confirmed in her evidence that the Applicant had tried to join the sexual offender's program in jail, however, he was not eligible to join the program because he was deemed to be a 'low risk' offender.
8. The Tribunal finds on the basis of the evidence before it that the Applicant attempted to engage in a sex offenders' program whilst in prison but was deemed ineligible to do so. This is confirmed in Ella Young's case note report of 22 July 2021 undertaken when the Applicant was in Cessnock jail.
9. This is also confirmed in the evidence of Ms Bostock who had extensive experience working in the corrective services environment and who confirmed that high-risk offenders were directed to sex offender's programs in prison whereas low risk offenders were ineligible to engage in such programs.
10. What is clear from the evidence before the Tribunal is that the Applicant has expressed an ongoing desire to engage in such a program. The Applicant has managed to engage with a legal representative to assist in the review before the Tribunal, and to engage with STARRTS and the evidence indicates that the Applicant through these resources should be able to be directed to an appropriate sexual offender's program in due course. The Tribunal also acknowledges the fact that the Applicant has recently been released into the community after an extended period in prison and immigration detention and has done his best to reintegrate into society after being in custody by obtaining employment and obtaining rental accommodation putting him on a stable trajectory in the community.

1. Both the Applicant's representative and the respondent's representative referred the Tribunal to various decisions of the AAT, the ART, and the Federal Court which provide direction and guidance to the Tribunal with respect to the task before it.
2. Both Mr Pham and Mr Taverniti agreed that the seminal decision with respect to the consideration of whether a person is a danger to the community is the decision of DP Tamberlin in WKCG v Minister for Immigration and Citizenship [2009] AATA 512 (WKCG) which has been the subject of significant analysis and judicial discussion.
3. In considering the danger issue DP Tamberlin QC in WKCG stated that:

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

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

In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a "risk", perhaps small. In my view, read in context, "danger'' ins 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about "danger''. In my view, it carries a narrower and more restrictive meaning that just "risk".

5. Reference was also made to the joint judgement of Thomas and Snaden JJ in DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 297 FCR 550 which the respondent submitted provided a useful summary of the correct construction of s 36 (1C)(b) emerging from the caselaw.
6. The Tribunal has had regard to the decision in DMQ20 which provides some analysis with respect to the meaning of 'danger'.
7. Justices Snaden and Thomas note at paragraphs 106 and 107 that:

DANGER" > > Neither the Act nor the Refugees Convention defines what is or is not within the concept of "danger". Insofar as concerns its incorporation within 36(1C)(b) of the Act, then, "danger" is a term of everyday usage, which should be understood to carry its ordinary meaning. > > Conceptually (at least for present purposes), "danger" is a function of probability and consequence. A person will pose a "danger" insofar as there is a sufficient likelihood that he or she will engage in conduct that visits upon others a sufficient degree of harm. Both of those constituent concepts may be measured along spectra. Future conduct might be inconceivable, highly improbable, likely or certain (or any degree in between). The harm that it might visit might range from minor to severe. At issue presently is what combinations of probability and consequence should suffice to qualify as "danger" in the sense contemplated by 36(1C)(b) of the Act (and its analogue in Art 33(2) of the Refugees Convention).

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

From the above analysis, two propositions emerge. > > First, it is likely not possible-and much less is it advisable to attempt-precisely to define what does and does not constitute "danger" for the purposes of s 36(1C)(b) of the Act. It is a concept without technical meaning that falls for consideration under the light of the whole of the relevant facts and circumstances that present in any given matter: Re WKCG and Minister for Immigration and Citizenship (20091 MTA 512; (2009) 110 ALO 434, 438 [25] (Tamberlin DP): LKQD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [20191 FCA 1591; [2019] FCA 1591; (2019) 167 ALD 17, 30 [57] (Jackson J). Perhaps like other indefinable concepts, one generally knows it when one sees it (to borrow from the famous observation of Mr Justice Stewart in Jacobellis v Ohio [19641 ussc 164: 378 us 184, 197 (1964): see a/so the observations of the Victorian Court of Appeal in R v Panozzo (20071 VSCA 245; [2007] VSCA 245; (2007) 178 A Crim R 323. 340 [43] (Chernov and Redlich JJA and King AJA)). > > Second, whatever might be said of what does not fall within the conceptual limits of "danger", it is clear beyond doubt that the circumstances with which the present matter engages fall well and truly within them. The Tribunal concluded that "...there exists a present risk which is real, significant and serious, which is neither remote nor fanciful] that the [appellant] will cause physical harm and perhaps severe physical harm, or extreme emotional harm] in the present or the future..." The present appeal (leaving to one side the proposed additional ground that the court declined to entertain) does not seek to challenge that finding. Rather, the contention is put simply that it does not bespeak a risk of harm that is sufficient to constitute the appellant as a "danger" in the sense that that term is employed in s36(1C)(b) of the Act.

2. In OMQ20 the Appellant made reference to a number of scholarly articles on the exclusion provisions in the Refugees Convention such as the commentary written in 1963 by Professor Atle Grahl-Madsen, posthumously republished (or partly republished) in 1997 by the United Nations High Commissioner for Refugees and titled, "COMMENTARY ON THE REFUGEE CONVENTION 1951 ARTICLES 2-11, 13-37".
3. Justices Snaden and Thomas found the article to be instructive with respect to an assessment of what and what does not constitute danger at paragraphs 141 and 142 of their decision.

The opinion of Prof Grahl-Madsen, in particular, is instructive. It notes that the commission of a single criminal act against a person to whom the perpetrator had a special relationship "will in itself not make a man a danger to the community". So much may readily be accepted. That proposition, though, is focused not upon the quality or universality of the harm that a refugee might inflict; but rather upon whether or not he or she might fairly be thought to pose a sufficient risk of inflicting it. Criminal behaviour properly described as aberrant or opportunistic might very conceivably be thought not to reflect a level of risk of repetition that is sufficient to constitute its perpetrator as a danger to the community. But the same might not be said of a recidivist offender-for example, one who has repeatedly partaken of criminal misconduct and presents as likely to embark upon similar misadventures in the future. > > As to the nature of the harm that a person must be at sufficient risk of inflicting in order to qualify as a danger to the community, the extra-judicial opinions to which the appellant refers are neutral at best; and, more likely, favour the construction of the phrase "danger to the Australian community" that the Minister advances. Again, Prof Grahl-Madsen's opinion is instructive. It contemplates that the danger might manifest in a refugee's propensity to "disrupt[] or upset[] civil life", including by means of crimes against individual victims, such as assault and kidnapping. Excepting degrees of seriousness, we do not understand either analysis to read in such a way as to reflect any limitation inherent in Art 33(2) of the Refugees Convention concerning the character of the potential harm that a refugee must be at risk of visiting in order that he or she might qualify as a "danger to the community".

4. The Tribunal has also had regard to the decision of DP Constance in NZYQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 378 (4 March 2022).
5. In the review before DP Constance the Applicant in that review sexually assaulted a boy aged 10 years who was known to him. The evidence in that review indicated that the Applicant had wanted to engage in a sex offenders' program and was on a wait list for such a program for 2-3 years whilst in prison. After being released from prison the Applicant was transferred to the Villawood Detention Centre and received some counselling in that facility but once again could not access a sex offenders' program.
6. A report by a clinical psychologist Ms Chamarette determined that the Applicant's risk of reoffending was low. This was disputed in a report by Ms Youssef a forensic psychologist who determined that the Applicant's risk of reoffending was 'above average'.
7. DP Constance found in this review that the Applicant's future accommodation and employment was uncertain. The Applicant demonstrated little insight into his offending behaviour. Further that it was regrettable that the Applicant had been unable to engage in a sex offenders' program and that "in circumstances where the Applicant is yet to commence treatment, there is a significant risk he may act on impulse should the opportunity arise." He also had regard to the competing evidence of psychologists presented to him. He went on to affirm the decision to refuse the Applicant's Safe Haven visa.
8. DP Constance in that decision made reference to the decision of the Member Eteuati in the Administrative Appeals Tribunal in HYTB and Minister for Immigration and Citizenship [2020] AATA 1967 at paragraphs 60-75 in which Member Eteuati conducted a review of the Federal Court authorities with respect to the concept of danger.
9. The Tribunal notes that this decision precedes the full Federal Court decision DMQ20 however it does, in the words of DP Constance, provide an overview of the "principles which are relevant to this application".
10. DP Constance noted that Member Eteuati at paragraphs 60-61 stated:

......... in order for a person to be a "danger" there must exist, at the time of the decision, a present risk which is "real" or "significant" or "serious" which is "neither remote nor fanciful" that the person will cause harm of a sufficiently serious nature (for example "of physical harm, or extreme emotional harm'') in the present or the future. If no such risk is present at the time of decision, it cannot be said that a person is a danger. Similarly, if a present risk of future harm relates to a harm which is insufficiently serious, for example a moderate risk of mere "upset" then the person will not be a danger. Conversely, if there is a low risk but one which is none-the-less "real" or "significant" or "serious" of particularly serious future harm, say grave physical injury, then that risk may be sufficient to determine that a person is a danger to the Australian community. > > Further, Member Eteuati referred to the following principles arising from the interpretations of the Courts and the Tribunal: > > subsection 36(1C) of the Act invests the Tribunal with a fact-finding function and not a discretion, the potential harm a person may suffer if deported from Australia is not relevant to the decision to be made under subsection 36(1C); > > "in determining whether a person in immigration detention is a danger to the community, the decision-maker is not restricted to considering the risk of harm that a detainee presents to those in immigration detention. The risk must be one that exists at the time of the decision, while the person is in immigration detention, but the risk of potential future harm extends to harm which may be caused to the community if the Applicant is released into the broader community."

11. The Tribunal has given careful consideration to all of the relevant facts and circumstances that have been presented to it in the course of this review and has had careful regard to the cited authorities.
12. There is no doubt in the view of the Tribunal that the offending conduct engaged in by the Applicant on 25 December 2018 was serious. The District Court of New South Wales found that the Applicant did have sexual intercourse with the victim without her consent and knowing that the victim did not consent to the sexual intercourse. The victim of the offending was 16 years old at the time.
13. The Applicant has given divergent accounts with respect to whether or not, in his view the offending was consensual. Despite his divergent accounts the District Court found otherwise with the jury returning a verdict the Applicant had sexual intercourse with the victim without her consent.
14. Substantial discussion has been hard during the course of the review hearing with respect to the Applicant's denials with respect to the offending behaviour. The Tribunal has been directed to a range of literature with respect to denial and insight.
15. The Tribunal finds that the report by Ms Bostock dated 14 November 2024 is comprehensive and compelling and the Tribunal has given significant weight to the report. The Tribunal notes that apart from having qualifications as a forensic psychologist Ms Bostock worked for an extended period as a specialist psychologist within the Department of Corrective Services in New South Wales in their sex offenders program, and that she has expertise in the provision of treatment for mental health conditions and sexual offending behaviours. This make her eminently qualified in respect of her assessment of the Applicant who is a convicted sex offender.
16. At the time that Ms Bostock conducted her assessment she found that the Applicant accepted responsibility for his criminal offending and expressed respect for Australian laws. Ms Bostock noted that the Applicant during his time in prison had learnt about the law and the justice system and the Applicant felt that the sentence that he received with respect to his offending was appropriate. These views were expressed as a consequence of an interview conducted with the Applicant on 5 November 2024 at which time Ms Bostock was assisted by an accredited Rohingya interpreter.
17. The Tribunal has made reference to the report of Ella Young a Corrective Services Officer based on an assessment conducted with the Applicant in Cessnock jail on 22 July 2021 with the assistance of an interpreter. During that interview in July 2021, the Applicant expressed that he believed his sentencing was fair. That he realised that he had done the wrong thing. That the Applicant had been using alcohol and was unable to restrain himself in the state that he was in but believed he should pay for the crime. The Applicant further stated that his offences are against his religious beliefs and that what he engaged in was considered to be adultery.
18. In the view of the Tribunal the evidence provided to Ms Young in July 2021 and the evidence provided to Ms Bostock in November 2024 is corroborative of the Applicant's state of mind with respect to a reflection of his offending behaviour at two points in time and the Tribunal gives these assessments significant weight. The Tribunal also notes that some assessments conducted with the Applicant whilst he was in prison were conducted without a Rohingya interpreter and in one instance an assessment was conducted with a Hindi interpreter. The Tribunal finds that assessments undertaken without an interpreter or with a non-Rohingya interpreter are unsafe and should not be given any weight.
19. The Tribunal finds that the offending was serious and a clear abuse of trust. The Applicant has served a lengthy prison sentence as a consequence if his actions. The Applicant during the period of his incarceration did not commit any disciplinary infractions either in prison or whilst in immigration detention.
20. The respondent's representative has suggested that the Applicants risk of engaging in dangerous behaviour is heightened by the fact that he has not completed a sex offenders program. The evidence before the Tribunal indicates that because the Applicant was identified as being 'low risk' with respect to recidivism that he was not able to engage in a sex offenders' program in prison. The evidence indicates that the Applicant made attempts to engage in a sex offenders' program in immigration detention but was not able to engage in such a program. The evidence indicates that the Applicant has engaged in a number of useful self-help programs that have been discussed extensively in the course of this decision. The evidence further indicates that the Applicant has a desire to engage in a sex offenders program going forward and the Tribunal finds that the Applicant's commitment, with respect to this is genuine.
21. Ms Bostock in her assessment of the Applicant has found that there is a low risk of the Applicant engaging in further offending behaviour. These findings were made after the administration of a number of psychological tests which have universal application and have been based on studies of large cohorts of offenders and sex offenders.
22. With respect to the likelihood of the Applicant committing further offences having regard to static factors and dynamic factors the Applicant was placed in a 'low risk' range and with respect to the risk of sexual recidivism applying the Static 99-R test which has a moderate predictive accuracy that the Applicant was placed in level 1 and considered to be a 'very low risk' of reoffending with Ms Bostock noting that "most individuals placed in level 1 are expected to desist from criminal behaviour, even without a correctional response".
23. Mr Pham in his closing submissions to the Tribunal has highlighted other protective factors in place that include the fact that the Applicant is subject to oversight by the New South Wales parole authority until January 2026. That the Applicant is on the child protection register until January 2026. Further to this that the Applicant is subject to very strict conditions on his Bridging R visa which collectively in view of the Tribunal substantially mitigate the risk of reoffending.
24. The Tribunal notes that there has been no pattern of offending in the time that the Applicant has been in Australia apart from the one instance of serious offending behaviour of 24 December 2018.
25. The Tribunal notes that the Applicant is married and has four children who are currently displaced and living in Bangladesh. In the event that in the future the Applicant's family would be able to relocate to Australia, the Tribunal finds that this in itself, will act as further risk mitigation factor.
26. The evidence indicates that leading up to the offending the Applicant had engaged in alcohol use and on the night of the offending had engaged in alcohol use. The evidence presented to the Tribunal indicates that the Applicant since the offending behaviour has not engaged in alcohol use and according to his evidence does not intend to resume the consumption of alcohol.
27. The evidence before the Tribunal indicates that the Applicant has managed to find himself gainful employment with a dry cleaning business and the Applicant has provided a reference from his employer attesting to his work ethic and commitment to the job. The Applicant also has stable rental accommodation. This evidence is indicative of stable living conditions for the Applicant in the community with respect to stable housing and employment.
28. Having regard to all of these factors the Tribunal finds that "there is no present risk that is real or significant or serious or neither remote nor fanciful that the Applicant will cause harm of a sufficiently serious nature in the present or the future". (HYTB and Minister for Immigration and Citizenship [2020] AATA 1967 at paragraphs 64).
29. The Tribunal finds that the Applicant has been convicted by final judgement of a serious offence that of sexual assault without consent. The Tribunal further finds on the basis of the evidence that has been presented to it that the Applicant is not a danger to the Australian community.

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

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

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