The nonsense of a concept of ‘zero’ risk of re-offending

In Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [102]-[103], the Tribunal said:

102. To quote Dr Freeman: “In forensic psychology, we can never say there is no risk, because that’s not a concept that we can accept, but…using the structured professional judgment, my experience in regards to this matter is it’s very unlikely that Mr Vargas is going to engage in any more impulsive behaviours where he threatens anybody, puts his hands on anybody…”[77]

103. I have misgivings about the veracity of any propounded submission – either by an Applicant or a Respondent in a case such as this – about a decision-maker having to reach a point of satisfaction regarding an Applicant having a “zero chance” of recidivism. Surely such a concept can only exist on a hypothetical basis and, to the extent it exists at all, it can only apply to an extremely narrow sector of our community such as the very young or infantile population. The simple physical reality is that every able-bodied or otherwise physically self-sufficient member of our community can harm any other member of our community at any time.

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